DECISIONS, DECISIONS… A NEW RULE TO CLARIFY THE PHRASE “WATERS OF THE UNITED STATES”

By PEPPER BOWEN

The Clean Water Rule is here! It arrived without much fanfare but carries with it clarity the Supreme Court has been trying to give the Clean Water Act’s (CWA) “waters of the United States” for years.

To give some perspective, CWA was passed in 1972 including the phrase “waters of the United States”. The phrase itself was last codified in 1986. The old definition was “as traditional navigable waters, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands.”. But no one is really even sure what all that means.

The Corps of Engineers has tried modifying its jurisdiction in order to address situations pertaining to the ’86 definition. However the Supreme Court has not been terribly lenient on that front.

The new the definition is a work of policy melding the existing CWA with the trifecta of Supreme Court precedent and Public Comments. The result is a simple definition of something that has proven incredibly complicated to define over the years. The Clean Water Rule gives meaning and scope to “waters of the United States” as “the process of identifying waters protected under the CWA easier to understand, more predictable, and consistent with the law and peer-reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”

It is still a mouthful, but it makes the phrase itself more fluid and breaks the binds to a static view of what is and what will continue to be waterways. In an age of Climate Change, that is an incredibly important step in keeping our laws and governances relevant.

But how important is this definition really? Why does it even matter? How much and how often could such a thing possibly come up anyway?

To be honest, the “waters of the United States” doesn’t come up often in the CWA. What happens is this… §502(7) declares CWA’s jurisdictional scope to be the “navigable waters”. Navigable waters is then defined as “waters of the United States, including the territorial seas.” And it is “navigable waters” that is found sprinkled throughout multiple regulations, such as:

• National Pollutant Discharge Elimination System (NPDES) permit programs §s 402 and 404
• oil spill prevention and response program § 311,
• water quality standards and total maximum daily load programs (TMDL) § 303, and
• state water quality certification process § 401.

Each use comes with a different view, focus, and approach to water, pollution, and prevention. So it is easy to understand that depending upon the regulation, the idea of “waters” could become rather muddied since all of these agencies and regulations look back to a single CWA definition of “waters of the United States.”

All of that is why this updated rule is a big deal. It helps us move from the trudging through dense wording and open ended verbiage into the crystal clarity of what we now understand to be the “waters of the United States”.