by Karrigan Bork
It is important if a stream, river, wetland, or even a dry ditch is protected by the Clean Water Act (CWA). The CWA is a federal law “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” But the Act doesn’t cover all waters. Waters covered by the Act, called “jurisdictional waters,” are determined by the language of the Act and by court decisions and administrative rulemakings interpreting that language. Ongoing rulemaking efforts by the Trump administration, coupled with several recent court decisions, make defining jurisdictional waters very difficult.
CWA jurisdiction matters for two main reasons. First, the Act’s significant protections only apply to waters that are covered by the Act. The CWA bars the unpermitted discharge pollutants by any person to jurisdictional waters, but provides no protection to other waters.
Second, getting a permit to discharge a pollutant to jurisdictional waters requires compliance with a host of federal environmental laws. Projects in jurisdictional waters must work through both an environmental analysis under the National Environmental Policy Act (NEPA) and an analysis of the project’s impacts on threatened or endangered species under Section 7 of the federal Endangered Species Act (ESA), in addition to the requisite analysis under the Clean Water Act. And federal projects in jurisdictional waters must get permission from the state water board before they can proceed; projects not in jurisdictional waters require no such permission. Projects in non-jurisdictional waters require no NEPA analysis and do not require consultation under the ESA. Determining whether a given water is jurisdictional is a big deal.
CWA Jurisdiction Nationwide
CWA determinations seem like an easy question. The language of the CWA covers “navigable waters.” But in legal settings, “navigable waters” means many different things, depending on the context, such as for state title to riverbeds, for commerce, or for public trust purposes. In the CWA context, Congress explicitly defined “navigable waters” to means “waters of the United States.” Not much help there. Congress also emphasized the breadth of the language; the legislative history notes that “[t]he conferees fully intend that the term ‘navigable waters’ be given the broadest possible constitutional interpretation.”
The two agencies responsible for implementing the CWA, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (COE), have interpreted this language in numerous rulemakings since passage of the Act. These rules have the force of federal law. In turn, these rulemakings have been challenged in court, and several Supreme Court cases have further fleshed out the meaning of “waters of the United States”. There’s a long legal history, summarized here.
First, in the 1985 Supreme Court decision United States v. Riverside Bayview Homes, a unanimous Court determined that wetlands adjacent to navigable waters were jurisdictional. Second, the 2001 Supreme Court decision Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) determined that isolated non-navigable intrastate ponds were not jurisdictional. And third, in the 2006 decision Rapanos v. United States, the Court again tried to iron out the definition.
The Rapanos decision is a mess—few justices could agree on anything, and the decision ultimately included five separate opinions. There is no majority opinion. Four justices wrote one opinion, four justices another, one justice wrote his own opinion, and two others wrote additional concurrences or dissents. That means there’s no clear controlling decision, and anyone trying to apply the decision has a very hard time knowing what to do.
One opinion, written by Justice Scalia on behalf of Chief Justice Roberts, Justice Thomas and Justice Alito, determined that jurisdictional waters must be either traditional navigable waters, “relatively permanent bod[ies] of water connected to traditional interstate navigable waters” (not ephemeral or intermittent flows), or wetlands adjacent to either of those water bodies. The plurality specifically rejected wetlands adjacent to waters that flowed only intermittently. But with only four justices, this opinion is not binding on anyone; that takes a five-justice majority.
A second opinion, from Justices Stevens, Souter, Ginsburg and Breyer, would have deferred to the EPA/COE definition of jurisdictional waters and rejected the idea that intermittent or ephemeral waters could not be jurisdictional. They explicitly would cover geographic features like ephemeral streams, dry arroyos, and slot canyons, not covered under Scalia’s view. But again, this decision also wasn’t controlling.
In this strange situation, Justice Kennedy, who wrote his own opinion with no other justices, ended up holding the most sway. It’s difficult to explain why, but it boils down to counting votes on the Court. The four dissenting justices said they would agree with Justice Kennedy, although they thought he didn’t go far enough. That meant that a future regulation, based on Kennedy’s opinion, would likely be upheld by the Court on a 5-4 vote (Justices Kennedy, Stevens, Souter, Ginsburg and Breyer). No other justice offered an opinion that would get a similar 5-justice majority. This logic is less sound now, given the significant changes on the Court (four new Justices have joined the Court since Rapanos), but it still seems to be the controlling approach. It is unclear what the current Court would do in a similar situation.
Kennedy’s opinion decided that jurisdictional waters were those that have a “significant nexus” to traditional navigable waters, such that “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Justice Kennedy’s opinion includes as jurisdictional waters any waters, even ephemeral or intermittent flows, if they are “likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood.” Determining whether any particular water was jurisdictional, under Kennedy’s opinion, requires a fact-based inquiry as to the relationship of that water to navigable waters nearby.
Based on the Kennedy opinion, EPA/COE wrote a new regulation defining jurisdictional waters, which went into effect on August 28, 2015. If this rule, “The Clean Water Rule: Definition of ‘Waters of the United States,’” were in effect, we wouldn’t need to worry about all the Supreme Court decisions leading in to it, and we could just focus on the definition in the 2015 Rule. But, based on litigation to stop the 2015 Rule, the Federal 6th Circuit Court kept the rule from going into effect in an Oct. 9, 2015 decision. Just over a year later, President Trump took office and targeted the 2015 Rule for reform. Since then, it has been a regulatory and judicial whirlwind, with many new rules and lawsuits.
On Feb. 28, 2017, President Trump issued an executive order requiring review of the 2015 Rule. EPA/COE immediately proposed a new rule that would rescind/revise the 2015 Rule. Almost a year later, on Jan. 22, 2018, the Supreme Court reversed the 6th Circuit’s decision that kept the 2015 Rule from becoming law. With that decision, the 2015 Rule became the law of the land. But just nine days later, a new rule from the EPA/COE changed the effective date of 2015 Rule to 2020, so the 2015 Rule was no longer in effect. Then, on Aug. 16, 2018 , a South Carolina District Court invalidated the rule changing the effective date, but only for 26 states. That brought the 2015 Rule back into effect in those 26 states, but not other 24 states (two other lawsuits block application of the rule in those states; based on other decisions, the rule appears to be in effect in roughly 22 states, but it is not entirely clear).
In Dec. 2018, EPA/COE proposed a new rule defining WOTUS, based largely on Justice Scalia’s opinion in Rapanos. The proposed rule excludes ephemeral streams and related features and only includes adjacent wetlands if they “are physically and meaningfully connected to other jurisdictional waters.” The comment period for that rule ended on April 15, 2019, with the definition of jurisdictional waters currently in a holding pattern, waiting for the administration to publish the final new rule. Based on Obama Administration estimates, the proposed rule would reduce coverage of wetlands by 51% and coverage of streams by 18% nation-wide.
Back Home in California
Where does this all leave California? The 2015 Rule is in effect in California in the near term, so projects starting now follow that rule for determining whether they affect jurisdictional waters.
But the replacement rule is expected in the next year from the Trump Administration, and that rule will likely displace the 2015 Rule everywhere, including in California. Estimates suggest that the new rule will reduce jurisdictional waters in southern California by 60-80% and jurisdictional streams statewide by two-thirds, generally driven by the new rule’s restriction of protection to permanent waters. The new rule, once in effect, will dramatically shrink the federal role in protecting California water quality, reduce the waters where compliance with NEPA and ESA consultation is required, and shrink the state’s ability to condition federal projects.
The new rule will face legal challenges, and those cases will likely take several years to resolve. At this point, it is unclear what rules, if any, will determine federal jurisdiction in the interim. Perhaps the 2015 Rule? If there is no active administrative rule, EPA/COE will apply the law from Rapanos, although which opinion they choose remains to be seen. Given their administrative discretion, it seems likely they will lean toward the Scalia opinion, but federal CWA jurisdiction in California will remain murky for the foreseeable future.
California is also acting on its own to address water quality and protect wetlands, filling the gap left by the federal government, writing new regulations under the California Porter–Cologne Water Quality Control Act (Water Code, Section 13000, et seq.). The Porter–Cologne Act defines “waters of the state” as “any surface or groundwater … within the boundaries of the state.” It explicitly includes all CWA jurisdictional waters but goes far beyond those waters. Notably, states inherently have more power than the federal government to regulate their waters, with fewer Constitutional limitations.
The California’s State Water Resources Control Board (SWRCB) adopted the new regulations April 2, 2019, and the rules will take effect nine months after their approval by the State Office of Administrative Law, a step that should happen soon. The state regulations protect any water ever covered by the CWA, some artificial wetlands, and seasonal wetlands in arid regions that lack wetland vegetation, and groundwater. The regulations also establish a state permitting process for those seeking to discharge pollutants, including dredge or fill materials, into these state-regulated waters.
The new regulations will maintain many protections for California waters, regardless of what happens at the federal level. But this isn’t really a happy ending—the loss of a federal hook for these waters will eliminate the federal role in permitting and may decrease their level of protection. And California may lose its ability to regulate federal projects that affect these waters. Beyond California, the level of protection afforded by states for their own water resources varies widely, and in many states the loss of federal jurisdiction will leave waters unprotected.
This is an important issue that bears watching.
Karrigan Bork is an Acting Professor of Law at the University of California, Davis.
 33 U.S.C. §1251 (a).
 33 U.S.C. §1362 (12).
 Robin Craig, Navigability and its Consequences: State Title, Mineral Rights, and the Public Trust Doctrine, 61st Annual Rocky Mountain Mineral Law Institute (2015).
 Federal Water Pollution Control Act Amendments of 1972, tit. V. §502, Pub. L. No. 92-500, 86 Stat. 886 (codified at 33 U.S.C. §1362(7)(2000)).
 S. Rept. 92-1236, at 144 (1972).
 Among acronym happy lawyers, this is SCOTUS on WOTUS.
 474 U.S. 121 (1985).
 531 U.S. 159 (2001).
 547 U.S. 715 (2006).
 547 U.S. 715, 742 (2006).
 Id. at 802.
 Id. 733-735.
 Id. at 781.
 Clean Water Rule: Definition of “Waters of the United States”, 80 Fed. Reg. 37,054, 37,098 (June 29, 2015) (to be codified at 33 C.F.R pt. 328, and 40 C.F.R. pgs. 110, 112, 116, et al.) noting that this approach “balances the exclusion with the need to ensure that covered tributaries, and the significant functions they provide, are preserved.” Id.