Waters of the United States

Background: Clean Water Act

The 1972 Clean Water Act (CWA) is the principal federal law in the United States governing water pollution. The law frequently uses the term "navigable waters," but also defines the term as "waters of the United States, including the territorial seas." All waters with a "significant nexus" to "navigable waters" are covered under the CWA; however, the phrase "significant nexus" remains open to judicial interpretation and considerable controversy. The U.S. Supreme Court cases Solid Waste Agency of Northern Cook County v. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006 generated some confusion over the detailed meaning of this phrase.

In the Rapanos case, a plurality of the Supreme Court held that the term "waters of the United States":

...includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams[,] ... oceans, rivers, [and] lakes.

Clean Water Rule

In response to the court rulings and the resultant confusion, the US Army Corps of Engineers and the Environmental Protection Agency (EPA) issued a clarifying regulation on June 29, 2015. The "Clean Water Rule" stated a new detailed and inclusive definition of "waters of the United States", which provoked another round of controversy. Thirteen states sued, and U.S. Chief District Judge Ralph R. Erickson issued an injunction in August 2015, blocking the regulation in those states. In a separate case, a divided federal appeals court stayed the rule's application nationwide on October 9, 2015. Congress passed a joint resolution under the Congressional Review Act simply overturning the "WOTUS" rule, but President Barack Obama vetoed the measure. The Donald Trump Presidential transition team announced in November 2016 that the new administration would end the rule.

Analysis

EPA and the U.S. Army Corps of Engineers finalized the Clean Water Rule to clearly protect the streams and wetlands that form the foundation of the nation’s water resources. Protection for many of the nation’s streams and wetlands has been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006. The Clean Water Rule ensures that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand. Specifically, the Clean Water Rule:

Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows they can have a significant connection to downstream waters.

Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.

Protects the nation’s regional water treasures. Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.

Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.

Maintains the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.

Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.

For over a decade, EPA and the Army Corps of Engineers have received requests for a rulemaking to provide clarity on protections under the Clean Water Act from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public. In developing the rule, the Agencies held hundreds of meetings with stakeholders across the country, reviewed over one million public comments, and listened carefully to perspectives from all sides. See a list of who requested a rulemaking and access public comments.

EPA and the Army Corps of Engineers also utilized the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies which showed that small streams and wetlands play an integral role in the health of larger downstream water bodies.

International boundaries

The third United Nations Convention on the Law of the Sea defines the boundary of maritime control of the United States in terms of:

Internal waters (full control)

Territorial waters (up to 12 nautical miles offshore, full control)

Contiguous zone (up to 24 nautical miles, limited control)

Exclusive economic zone (usually out to 200 nautical miles, includes only fishing, mineral, and bottom harvesting sovereignty)

Outer Continental Shelf (includes only mineral and bottom harvesting sovereignty)

International waters (no national control)

Federal vs. state coastal jurisdiction

The individual U.S. states exercise ownership (subject to federal law) up to 3 nautical miles (9 nautical miles for Texas and Florida) from shore, while the federal government exercises sole territorial jurisdiction further out.