Week 6: Clean Water Act

The US Clean Water Act has faced litigation for decades surrounding the legal definition of what it protects: namely, which waters are “the waters of the United States”? Under different presidents’ EPAs, the Army Corps of Engineers, and changing majorities in the Supreme Court, the answer has varied. The essential issue is what constitutes “navigable waters” in the Clean Water Act: whether it applies to ephemeral or intermittent streams, isolated wetlands, and other bodies of water that do not have a direct or permanent connection to navigable waters.

The Obama-era approach adopted a more generous interpretation of WOTUS to include these less-clearly-“waters” bodies of water, including wetlands and intermittent streams, providing greater protection to natural water resources. This decision came in the form of 75 pages of guidance called the “Waters of the United States” rule in 2015. These wetter-areas-of-land can include vast marsh areas where, for example, housing developers want to build, and having to comply with the Clean Water Act increases the burden of compliance dramatically with additional environmental reviews, and potentially purchasing restoration credits for degraded or destroyed wetlands. (The CWA does not prohibit development, but requiring permission from the Army Corps of Engineers or state/tribal agencies takes time, lawyers, and raises costs of development, and can occasionally kill projects entirely.) Unsurprisingly, in favor of business and development, the Trump administration took a narrower view, limiting the scope of WOTUS to permanently navigable waters, ignoring recent science and the many benefits of healthy ecosystems, as well as economic development from mitigation banking.

Given the need to dramatically expand housing stock as a solution to climate change, we cannot stop development by focusing exclusively on environmental protection. And with the political context that the landmark CWA could not be rewritten or substantially amended without risking damaging its protections or spending political capital, the Biden administration must wade into the WOTUS issue carefully. Legislative action through Congress to clarify “navigable waters” could only politically arrive tucked into a much larger package. Given the original Rapanos decision and recent decisions limiting EPA reach and the expected decisions about SEC overreach in carbon accounting, the current Supreme Court is unlikely to be helpful in protecting waterways. This leaves internal rulemaking inside the EPA and Army Corps, from whom the country needs a definition balancing the needs of the natural environment with development; but until “recodified,” the definition will continue to change with each presidency.