What is the Clean Water Act?
The Clean Water Act (CWA) of 1972 is the primary law that governs the pollution of our nation's waters.
The CWA establishes the primary regulation for impacts on rivers, streams, and wetlands that are jurisdictional under the federal Clean Water Act. These waters are collectively known as Waters of the U.S (WOTUS). Title IV of the CWA, the most relevant title to development and construction projects, spells out the permits and licenses required for projects that impact the waters of the U.S. Some of these include:
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Section 401 of the Clean Water Act requires state water quality certification
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Section 402 of the Clean Water Act requires a permit for stormwater discharges
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Section 404 of the Clean Water Act requires a permit for dredge and fill
The U.S. Environmental Protection Agency (EPA) primarily administers the CWA in coordination with the U.S. Army Corps of Engineers (USACE) and state governments.
Learn More about the Clean Water Act here
A Brief History of the Clean Water Act
Before the 1960s, environmental awareness in the U.S. was virtually nonexistent. The Lacey Act of 1900 prohibited illegal plant and animal trade, the Antiquities Act of 1906 preserved national monuments, and the Migratory Bird Treaty Act of 1918 responded to over-hunting. Still, the U.S. had no laws targeting the impacts of human-centered activities on the environment, nor did anyone seem to care.
Then in 1948, the CWA began as the Federal Water Pollution Control Act of 1948 and was amended in 1972 into the regulation we know today. Following this in the 1960s, after the release of Rachel Carson’s Silent Spring (1962), the Cuyahoga River fire in Ohio (1969), and public backlash from the Interstate Highway System, public concern for the environment heightened. Decades of increased urbanization, industrial expansion, and resource exploitation put the environment's continued health at risk. Following a congressional investigation into federal mismanagement of the country’s environmental resources, President Nixon signed the National Environmental Policy Act (NEPA) into law on January 1, 1970.
In the Act, Congress stated that “it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures… to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”
Learn more about NEPA’s history
From this ruling, the environmental regulations, agencies, and pollution control programs we know today have been created.
What Exactly are “Waters of the US”?
Waters of the U.S. are the oceans, rivers, streams, lakes, creeks, marshes, and wetlands considered "jurisdictional" under the Clean Water Act - as in, they are within the regulatory jurisdiction of the USACE. However, determining which waters are jurisdictional has been debated for the last decade.
Since the passing of the Clean Water Act, the definition of "waters of the U.S" has held various interpretations through dozens of court cases, a handful of executive orders, and a couple of final rules. The most recent change to the definition of waters of the U.S. was a return to a pre-2015 definition after the passing of the 2020 Navigable Waters Protection Rule (NWPR). Unlike under the NWPR, many projects require a section 404 clean water act permit.
The current pre-2015 interpretation defines jurisdictional waters of the U.S. as:
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All waters currently used, or were used in the past, or could be susceptible to use in interstate or foreign commerce, including traditional navigable waters, which are waterbodies subject to the tide’s ebb and flow
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Other waters: The use, degradation, or destruction of other waters such as intrastate lakes, rivers, streams (including intermittent streams), which could affect interstate or foreign commerce, including any such waters
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The territorial sea;
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Wetlands adjacent to other waters that contribute to surface water flow (other than waters that are themselves wetlands)
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Waste treatment systems designed to meet the requirements of CWA are not waters of the United States.
The ruling developers are most familiar with is the Navigable Waters Protection Rule of 2020 (NWPR). The NWPR was a rule passed under the Trump administration that drastically narrowed the definition of waters of the U.S. in comparison to previously accepted standards and court interpretations. Criticism claimed the 2020 Navigable Waters Protection Rule had a narrow scope of protection for sensitive, temporary features, such as an ephemeral stream.
The 2020 Navigable Waters Protection Rule defines waters of the U.S. as:
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The territorial seas and traditional navigable waters include large rivers and lakes and tidally-influenced waterbodies used in interstate or foreign commerce.
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Perennial and intermittent rivers and streams that contribute surface flow to traditional navigable waters in a typical year
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Lakes, ponds, and impoundments of jurisdictional waters that contribute surface water flow to traditional navigable water or territorial sea in a typical year
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Adjacent wetlands that physically touch jurisdictional waters are separated from a water of the U.S. by only a natural berm, bank, dune, or wetlands inundated by flooding from a water of the U.S.
A notable categorical exclusion to the 2020 definition of waters of the U.S. is ephemeral (dry) tributaries, which historically are jurisdictional if they had some form of chemical, physical, or biological connection to downstream waters of the U.S. Under the 2020 rule, dry tributaries were never jurisdictional. This new rule drastically contrasted the prior 2015 Clean Water Rule as set by the Obama administration which provided protection for ephemeral water supplies.
Due to the narrow scope of this rule, many environmentalists pushed for a more specific and extensive definition for WOTUS. As the regulation shifted from this 2020 definition to the current WOTUs interpretation, the required permits for projects changed once again.
This continuous redefining of WOTUS has led to confusion amongst developers regarding what permits apply to their project site. Discussion for an updated definition of jurisdictional waters of the U.S. began in 2021 and has increased in necessity as developments from the Infrastructure Bill are on the horizon. A final rule will be established for WOTUS, providing a concrete definition of these waters.
The 2015 Clean Water Rule
The 2015 Clean Water Rule was the interpretation of the WOTUS rule under the Obama administration.
The Obama administration established the defined WOTUS as:
- Traditional navigable waters
- Interstate waters
- Territorial seas
- Impoundments of the jurisdiction in WOTUS - streams and ditches were seen as having a "significant nexus" on the traditionally defined waters above
This rule placed focus on ephemeral streams which were seen as having a great impact on groundwater supply and support for surrounding ecosystems. These water bodies were also seen as providing some protection for public health by keeping pollutants from entering drinking water sources and the surrounding watershed.
