Waters of the United States
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| Waters of the United States | |
|---|---|
| Name | Waters of the United States |
| Caption | Jurisdictional scope under federal statutes |
| Jurisdiction | United States |
| Established | 1972 (Clean Water Act) |
| Governing body | United States Environmental Protection Agency; United States Army Corps of Engineers |
Waters of the United States is a legal and regulatory category defining aquatic features subject to federal law under the Clean Water Act and related statutes. It intersects with doctrine from the United States Supreme Court, administrative rules issued by the United States Environmental Protection Agency and the United States Army Corps of Engineers, and scientific guidance from agencies such as the United States Geological Survey and the National Oceanic and Atmospheric Administration. The term has shaped federal jurisdiction over rivers, lakes, wetlands, and tributaries and has been central to disputes involving states, landowners, industries, environmental organizations, and tribal nations.
Definition and Scope
The statutory scope derives from the Clean Water Act definitions and implementing regulations promulgated by the United States Environmental Protection Agency and the United States Army Corps of Engineers. Coverage traditionally includes navigable waters linked to interstate commerce such as the Mississippi River, Columbia River, Hudson River, and the Great Lakes like Lake Michigan and Lake Superior, as well as wetlands adjacent to those waters. The scope has been interpreted through decisions involving parties like Rapanos v. United States, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC), and United States v. Riverside Bayview Homes, which clarified inclusion of wetlands with a continuous surface connection to Lake Erie or tributaries of the Missouri River. Adjacent waters near floodplains and riparian corridors such as those in the Missouri Bootheel or the Florida Everglades raise questions about adjacency and hydrologic connection.
Legal Framework and Regulatory History
Key statutes and instruments shaping the category include the Clean Water Act (33 U.S.C. §1251 et seq.), rules promulgated during administrations of Richard Nixon, Gerald Ford, Jimmy Carter, Bill Clinton, George W. Bush, Barack Obama, and Donald Trump. Pivotal litigation involved the United States Supreme Court in cases like United States v. Riverside Bayview Homes, SWANCC, and Rapanos v. United States that led to differing tests for jurisdictional waters. Rulemaking episodes produced the 1986 regulations, the 2008 guidance under the Bush administration, the 2015 "Clean Water Rule" under the Obama administration, and the 2020 "Navigable Waters Protection Rule" under the Trump administration; subsequently, proposals and finalizations under the Biden administration adjusted definitions again. Legislative and regulatory actions also interacted with agency guidance documents from the United States Fish and Wildlife Service and litigation by parties including the State of Texas, State of North Dakota, Maine and environmental groups such as Sierra Club and Natural Resources Defense Council.
Jurisdictional Tests and Court Cases
The Supreme Court developed tests in landmark cases: Rapanos v. United States articulated a plurality "significant nexus" test associated with Justice Scalia’s concurrence and a different approach in Justice Kennedy’s opinion. Solid Waste Agency of Northern Cook County v. Army Corps of Engineers limited jurisdiction over isolated ponds previously regulated under the Migratory Bird Rule, and United States v. Riverside Bayview Homes upheld regulation of wetlands adjacent to navigable waters. Lower federal courts and circuit decisions in the Fourth Circuit, Ninth Circuit, Fifth Circuit, D.C. Circuit, and Sixth Circuit have applied these precedents inconsistently, prompting nationwide injunctions and stays in cases like litigation led by the State of Texas and industry groups including American Petroleum Institute and National Association of Home Builders. Administrative appeals reached panels of the United States Court of Appeals for the District of Columbia Circuit and emergency stays from individual United States District Court judges.
Scientific and Environmental Considerations
Scientific assessments by the United States Geological Survey, National Academy of Sciences, Environmental Protection Agency scientists, and independent researchers examined hydrologic connectivity, surface and subsurface flow, riparian ecology, and wetland functions. Studies on tributary networks such as those feeding the Chesapeake Bay, San Francisco Bay, and Gulf of Mexico hypoxia zone highlighted nutrient transport, sediment dynamics, and habitat value. Research institutions including Smithsonian Institution, Woods Hole Oceanographic Institution, Scripps Institution of Oceanography, Yale School of the Environment, and Harvard Kennedy School contributed analyses on biodiversity, flood mitigation, and carbon sequestration in peatlands and the Everglades. The Intergovernmental Panel on Climate Change findings on extreme precipitation and sea-level rise further informed discussions about jurisdictional reach given changing hydrology in regions like Louisiana and Alaska.
Implementation and Agency Guidance
Implementation relied on permits under Section 404 of the Clean Water Act administered by the United States Army Corps of Engineers and water quality standards under Section 401 enforced by states such as California, New York, and Virginia. EPA-issued guidance documents, technical memoranda, and field manuals guided Corps district offices in regions including the New England District, Southwestern Division, and Galveston District. Interagency coordination involved the United States Coast Guard for navigable waters, consultations under the National Environmental Policy Act for large actions, and tribal consultations with entities like the Yakama Nation and Muscogee (Creek) Nation. Compliance actions featured permits, enforcement actions by EPA and Corps, citizen suits under the Clean Water Act initiated by organizations such as Earthjustice, and mitigation banking frameworks used in restoration projects near Hudson River tidal wetlands.
Controversies and Stakeholder Positions
Stakeholders include states' attorneys general, industry associations like American Farm Bureau Federation, National Mining Association, environmental NGOs including Sierra Club, Natural Resources Defense Council, and tribal governments asserting treaty rights in areas like Navajo Nation and Standing Rock Sioux Tribe. Agricultural interests, urban developers, and energy companies (e.g., ExxonMobil, Shell Oil Company) often argue for narrower jurisdiction to reduce permitting costs, while conservation groups, fisheries organizations, and municipal water utilities advocate for broader coverage to protect drinking water sources such as those for Chicago, Los Angeles, and New Orleans. Political debates in Congress have involved members of the United States Senate and United States House of Representatives proposing amendments and hearings before committees like the Senate Committee on Environment and Public Works and the House Committee on Transportation and Infrastructure. Litigation, administrative revisions, and intergovernmental disputes continue to shape the boundaries of federal jurisdiction over aquatic resources.