Under the authority of the Clean Water Act of 1972, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers have jurisdiction to regulate discharges and other activities related to “navigable waters,” which the Clean Water Act defines as “waters of the United States” (WOTUS). Inexplicably, however, the act does not define WOTUS. Given the complexity of the environmental issues surrounding the nation’s waters, and the intricacy of the legal questions involving the Commerce Clause of the U.S. Constitution, the EPA and Corps of Engineers have struggled to provide a workable definition.   

To fall within the scope of the Clean Water Act, the waterway must be navigable and used in interstate commerce. Otherwise, the waterway would only be subject to state or local regulation.  The Great Lakes and Mississippi River are unquestionably navigable waters used in interstate commerce, but what about inland ponds, intermittent streams, and wetlands? Over the years, the EPA and Corps of Engineers have taken an expansive view of the meaning of WOTUS, and in the 1980s, they adopted a uniform definition that covers:

•    All interstate waters including wetlands.
•    All waters currently used, or used in the past, or may be susceptible to use in interstate commerce, including all waters subject to the ebb and flow of the tide.
•    All other waters, such as intrastate lakes, rivers, streams (including intermittent streams), wetlands, and similar waters, the use, degradation or destruction of which could affect interstate commerce (including waters that could be used for commerce, recreation, or industry.
•    All tributaries and impoundments of such waters.
•    The territorial seas.

While aspects of this definition are specific, other aspects are vague and can be interpreted in multiple ways, so the question of WOTUS remained unsettled.

Adding to the confusion, the EPA and Corps of Engineers have attempted to expand the meaning of WOTUS even further through their permitting and enforcement activities. The U.S. Supreme Court and lower courts have at times agreed with the agencies’ broad interpretation of WOTUS, and at other times disagreed.     

In 2006, the Supreme Court, in Rapanos v. United States, 547 U.S. 715, addressed whether the Corps of Engineers may assert jurisdiction over a wetland with sometimes-saturated soil conditions lying 11-20 miles from the nearest traditional navigable waterway. The Supreme Court rejected the lower court’s determination that the wetland was jurisdictional based on a “hydrologic connection” analysis and remanded the case to the lower court for further consideration. However, the Supreme Court was unable to agree upon a test that should be applied for making this determination. Justice Anthony Kennedy articulated the “significant nexus” test, which requires a finding of a significant nexus between the traditional navigable waterway and the wetland at issue. Under this test, the wetland, either alone or in combination with similarly situated lands, must “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.” Justice Antonin Scalia articulated a more limiting test, known as the “plurality” test, which allows jurisdiction over relatively permanent bodies of water connected to traditional navigable waters, including wetlands that have a continuous surface connection with the traditional navigable waterway and where it is difficult to determine where the “water” ends and the “wetland” begins.

In 2015, the EPA and Corps of Engineers adopted the Clean Water Rule in an attempt to provide more clarity to the definition of WOTUS. The Clean Water Rule more specifically defines which types of waterways fall within the scope of WOTUS and embraces the “significant nexus” test articulated by Justice Kennedy. The Clean Water Rule covers:

•    Traditional navigable waters, interstate waters, the territorial seas, and tributaries and impoundments of such waters.
•    Waters, including wetlands, lakes, ponds, and similar waters, that are adjacent to traditional navigable waters, interstate waters, and the territorial seas.
•    Waters that have a significant nexus to traditional navigable waters, interstate waters, and the territorial seas.

Several states appealed the Clean Water Rule directly to the Sixth Circuit Court of Appeals. The Sixth Circuit issued a nationwide stay of the rule on the basis it covers certain waters that should not be classified as WOTUS and amounts to federal overreach into states’ rights over local waters. Following the decision, the Clean Water Rule was appealed to the Supreme Court.    

In the meantime, the Trump Administration issued an Executive Order on February 28, 2017, instructing the EPA and Corps of Engineers to withdraw the Clean Water Rule and adopt a new rule. The Trump Administration asked the agencies to consider adopting Justice Scalia’s “plurality” test.    

On January 22, the Supreme Court held that federal district courts, not federal appeals courts, maintain jurisdiction to hear challenges to the Clean Water Rule, and directed the Sixth Circuit to dismiss the pending petitions for review. Shortly after the Supreme Court issued its decision, the EPA and Corps of Engineers extended the applicability date of the Clean Water Rule to February 6, 2020. By extending the date, the EPA and Corps of Engineers seek to ensure the Clean Water Rule will not go into effect until a new definition of WOTUS is adopted.  The 1980s definition will remain in effect during this period.  

It remains to be seen whether the EPA and the Corps of Engineers will adopt the “plurality” test, a variation of the “significant nexus” test, or an alternative approach. Regardless of which direction the agencies decide to go, the next definition of WOTUS will most assuredly be the subject of further legal challenges and debate.   

Darren Hunter is a partner and an experienced EHS practitioner in the Chicago law firm of Rooney Rippie & Ratnaswamy LLP. This column does not constitute legal advice or the formation or proposal of an attorney-client relationship to or with any person or entity. Darren can be contacted at darren.hunter@r3law.com or at 312-447-2818.

Click here to see this story as it appears in the July 2018 issue of Modern Casting