How the term "navigable waters" Charts a Course of Disaster for our Future

Photo by Kristopher Roller on Unsplash

The fate of our nations waters, our health and water ecosystem are at risk. A highly industrialized economy and private ownership of water resources does not necessarily recognize prioritizing clean water. Regulating water resources has been a balance of federal and state authorities in our constitutional federalism model which has been largely successful, in this case, federalism may prove to be our undoing for protecting our nation’s waters.

The Clean Water Act’s mission is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters".¹ The “[N]ation’s waters” are the ecosystem of all water that moves in a hydrological cycle and any break in that cycle stops the entire process of the water ecosystem upon which all life depends. Yet Congress is limited in its powers to regulate beyond that which has a “substantial effect on interstate commerce”. ² So the term,“navigable waters,” defines the waters involved in interstate commerce, thus within the power of Congress to regulate. Defining “navigable waters” based on its plain meaning will ultimately leave out parts of the water ecosystem, rendering the entire water environment at risk of destruction. Tributaries, wetlands and small adjacent wetlands are literally not navigable but they are known as the kidneys of the environment and are necessary to clean the water before it goes into larger bodies of water. So the US EPA³ and the USACE⁴ have developed definitions that connect wetlands and tributaries to “navigable waters” in order to protect them. Thus, the U.S. Supreme Court will address the when they decide the Sackett v. U.S. Environmental Protection Agency (II), after hearing the case, Oct. 3, 2022.

The issue before the U.S. Supreme Court in Sackett (II) is how to define “waters of the United States” which is the definition of “navigable waters”. The most recent regulation that is currently the one in force explains the defintion as follows:

“§ 120.1 . . . EPA regulations implementing the Clean Water Act use the term ‘‘navigable waters,’’ which is defined at section 502(7) of the Clean Water Act as ‘‘the waters of the United States, including the territorial seas,’’ or the term ‘‘waters of the United States.’’⁵

Constitutionality all turns on the definition of “navigable waters”, and “waters of the United States,”⁶ which is related to the separation of powers between the federal government and state and tribal governments. The federal government has the power to regulate in matters that have a “substantial effect on interstate commerce”. So for Congress to regulate any water, it was determined it must be “navigable” and all other water belonged to property law with the state and tribal governments.

The politics driving this controvery are those who want limited government and thosw who prioritize clean water, even if it means more federal control. It is not just industry who is seeking to limit wetlands regulation, it is the agriculture sector, the forestry sector as well as the home building and land development sector. Wetlands crosses into private property rights, and that is what gave rise to the controvery in Sackett.

Constitutional federalism is great until it isn’t. The federal government is one of enumerated powers and states are supposed to have police powers to protect the health, safety and welfare of their citizens. But when it comes to the environment and public lands, state authorities are often at a disadvantage. They lack both the money and personnel necessary to effectively monitor and police environmental problems. Additionally, they are subject to the political vagaries of state legislatures that may be more interested in economic development than environmental protection.

My first law review article⁷ was on this exact legal issue almost 25 years ago, and so I decided to research the history of this term “navigable waters” and how we came to use it in the Clean Water Act. Because of this misfit of law and science, the law had been expanded to find logic to cover wetlands, and even adjacent wetlands, tributaries and often wetlands that were dry part of the year. All of these legal fictions were developed to try to match the goal of the Clean Water Act with the scope of authority of Congress to that which is “navigable. Here is the excerpt on that history of how “navigable waters” became “wetlands”:

“Navigable waters” has long meant what its plain meaning would indicate. The concept is ancient and dates back to the Roman common law notions of property. The drafters of the Magna Carta reasserted this concept because during that period, navigation was the key for countries aspiring to world leadership. The public interest was served through the protection of navigable waterways. In England, the boundary of navigable waterways was the “mean high-tide line,” and the United States adopted the same definition. [FN65] The U.S. Rivers and Harbors Act of 1899 adopted the English meaning when it used the term “navigable waters.”

As previously discussed, the Federal Water Pollution Control Act of 1972 was an amendment to the 1965 Act, the 1956 Act, the 1948 Act, and the 1899 U.S. Rivers and Harbors Act. The term navigable waters appeared in each Act, and in 1972 Congress sought to define navigable waters. The Senate Report states: “The control strategy of the Act extends to navigable waters. The definition of this term means the navigable waters of the United States, portions thereof, tributaries thereof and includes the territorial seas and the Great Lakes.” [FN66] However, the report language *191 goes on to extend the definition without revising it:

Through a narrow interpretation of the definition of interstate waters, the implementation of the 1965 Act was severely limited. Water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source. Therefore, reference to the control requirements must be made to the navigable waters, portions thereof, and their tributaries. [FN67]

The definition is still unclear and never mentions the word “wetlands.” [FN68]

The confusion led to litigation, and in United States v. Holland [FN69] and Natural Resources Defense Council v. Calloway [FN70] the court interpreted the term “navigable waters” broadly. In Calloway, the court held that for purposes of the Clean Water Act, navigable waters were not tied to “traditional tests of navigability” [FN71] and ordered the USACE to published regulations which recognized “the full regulatory mandate of the Water Act.” [FN72]

After much controversy between the agencies and the regulated community over the navigable waters issue, and in response to the Calloway court and the Clean Water Act of 1972, the USACE issued regulations in 1975 under the dredge and disposal permit program. These regulations expanded the definition of navigable waters to include tributaries and waters that might affect navigable ones, including freshwater wetlands. [FN73] The Natural Resources Defense Council filed suit against the USACE for regulations which it believed to be insufficient. . . .

*192 Although the Calloway court ordered regulations expanding the definition of navigable waters, Congress did not include wetlands in the scope of navigable waters and referred to wetlands and navigable waters as separate items in a series. For example, “there should be a degree of discipline over the extent to which these activities destroy wetlands or pollute navigable waters.” [FN76] In another part of the Report, the Congressional language reads, “It may be that the States will be reluctant to develop the control measures and management practices which protect upland wetlands and navigable waters.” [FN77] From this language it appears Congress did not intend to include wetlands in the definition of navigable waters because the Report repeatedly refers to wetlands and navigable waters separately rather than under the single term navigable waters. The 1977 Report specifically states that “The committee amendment does not redefine navigable waters. Instead, the committee amendment intends to assure continued protection of all the nations waters ….” [FN78] The Committee stated they would not redefine the term navigable waters until the controversy between the House and Senate over the extent of USACE's jurisdiction ended. The House rejected amendments which left USACE with the jurisdiction provided by the Calloway court. The Senate took a different approach and addressed the exemptions for farming and forestry. Perhaps the expectation that the states would assume the program led Congress to consider the issue a temporary controversy that would be resolved with delegation to the states.

Jurisdiction over wetlands was delegated by Congress to the USACE for “Phase I” waters, which included traditional navigable waters of the United States and the adjacent wetlands. [FN79] However, another controversy arose when the USACE sought to extend its jurisdiction to non-adjacent wetlands, or isolated wetlands. Based upon a Congressional intent analysis, the court in Avoyelles Sportsmen's League v. Alexander (1979) [FN80] held that Congress intended to protect wetlands; therefore, isolated wetlands were within the reach of § 404 of the Clean Water Act.⁸

Historical interpretation and definition of the term “navigable waters” by both Congress and the Executive Branch is a significant factor leading to the conclusion that the statute is not appropriate for regulating wetlands, adjacent or isolated, as long as the term “navigable waters” is used as the basis for Congressional legislation.

A term that originated in Roman law has been adopted into the federalism analysis. (And we even still use the “high tide mark” as a defining factor just as in Roman Law) The legislative history suggests wetlands were not in “navigable waters” but a long line of cases brings wetlands, adjacent wetlands and tributaries into the scope of what has been called “jurisdictional waters” that are included in the scope of the Clean Water Act. This legal evolution continued for another two decades to the present with the U.S. Supreme Court confirming the reach of the Clean Water Act, most notably in Rapanos. Tomorrow the issue is squarely before the U.S. Supreme Court with Sackett (II).

Reflection

Water is important to every living organism on the planet. From 55-60% of the human body is water, and without it we can only live about 3 days without water (but about three weeks without food).

We are drawn to water. In the U.S., 40% of the population inhabitant the coastal areas, although the land mass accounts for only 10% of the country.⁹ If there was ever a U.S. Supreme Court decision that might be determinative of the perpetuation of healthy life in the United States, this is the one.

Water also has a particularly meaning in indigenous America, where most tribal cultures involve ceremonies that honor water. The “water protectors” are traditional roles that are lifetime appointments to care for and protect the water, usually women because of the link between water and childbirth.

In Sackett, at least eight Native Nations have argued in amici briefs that limiting the definition of “waters of the United States” would have devastating effects on the water ecosystem and their particular wetlands and water ecosystems as well. The Clean Water Act has given Native Nations the legal tools to protect water quality and their treaty rights that are affected by mining and energy operations; as well as many other unique upstream activities.

Solutions

Assuming we want to restore the nation’s waters and protect them (the goal of the Clean Water Act), then we have to protect the entire water ecosystem, not just parts of it, like just the “navigable” part. The Executive Branch has sought to do this through regulations which have been in controversy for decades. Congress could make a finding that the entire water ecosystem is connected and thus all of it has interstate commerce effects, then the entire system could be regulated. This would immediately be challenged as to its constitutionality in the court, with an uncertain outcome. Another option is for the US Supreme Court in Sackett (II) to find the definition of “navigable waters” and its “waters of the United States” developed by the agencies and interpreted by several federal courts is what Congress meant by “restore the Nation’s waters”, which extends to the legal fiction to define the “Nation’s waters” as all within the scope of the meaning of “navigable” because of their connectedness. Finally, the United States could amend the U.S. Constitution and include a right to a healthy environment and that Congress has the power to regulate a healthy environment (rather than just those parts with interstate commerce effects), but that would greatly expand the limited powers of Congress to include even more private property control than under the most expansive existing definition of “navigable waters”.

The U.S. Supreme Court has the opportunity for a watershed opinion to chart a course for a long and healthy future for generations to come.

1. CWA section 101(a).

2. United States v. Lopez, 514 U.S. 549 (1995).

3. U.S. Environmental Protection Agency

4. U.S. Army Corps of Engineers.

5. 33 USC Sec. 1205 et seq, Part 120

6. § 328.3 Definitions. For the purpose of this regulation these terms are defined as follows: (a) Waters of the United States means: (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters including interstate wetlands; (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds: (i) That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1), (a)(2), (a)(5)(i), or (a)(6) of this section; or (ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1), (2), or (6) of this section; (4) All impoundments of waters otherwise defined as waters of the United States under the definition, other than impoundments of waters identified under paragraph (a)(3) of this section; (5) Tributaries of waters identified in paragraph (a)(1), (2), (4), or (6) of this section: (i) That are relatively permanent, standing or continuously flowing bodies of water; or (ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1), (2), or (6) of this section; (6) The territorial seas; (7) Wetlands adjacent to the following waters (other than waters that are themselves wetlands): (i) Waters identified in paragraph (a)(1), (2), or (6) of this section; or (ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(4) or (a)(5)(i) of this section and with a continuous surface connection to such waters; or (iii) Waters identified in paragraph (a)(4) or (a)(5)(ii) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1), (2), or (6) of this section; (8) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act are not waters of the United States; and (9) Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (b) Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (c) Adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘‘adjacent wetlands.’’

7. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2102678

8. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2102678

9. https://oceanservice.noaa.gov/facts/population.html