Bush Administration Effort to Eliminate Clean Water Act Protection for Many Waters
Would Pollute Streams, Ponds and Wetlands
Current Clean Water Act Definition of “Waters of the United States”
The jurisdictional scope of the Clean Water Act (“CWA”) is “navigable waters,” defined in the statute
as “waters of the United States, including the territorial seas.” CWA section 502(7), 33 U.S.C. 1362(7).
Existing EPA and Corps of Engineers regulations define “waters of the United States” as:
(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 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, the use,
degradation or destruction of which could affect interstate or foreign commerce including any such
waters:
(i) which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) which are used or could be used for industrial purposes by industries in interstate commerce.
(4) All impoundments of waters otherwise defined as waters of the United States under the definition;
(5) Tributaries of waters identified in paragraphs (a)(1)-(4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs
(a)(1)-(6) of this section.
(8) Waters of the United States do not include prior converted cropland .… Waste treatment systems,
including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds
...) are not waters of the United States.
40 CFR.230.3(s); 33 CFR 328.3(a) (emphasis added); see also substantively similar regulatory definitions at
40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 232.2, 300.5, part 300, 302.3 and 401.11.
In regulatory preambles issued in the 1980s, the Corps and EPA provided examples of additional types
of links to interstate commerce that might serve as a basis for establishing CWA jurisdiction over nonnavigable, intrastate waters that are not part of a tributary system or adjacent wetlands. These include
use of waters (1) as habitat by birds protected by Migratory Bird Treaties or as habitat for other
migratory birds that cross State lines, (2) as habitat for endangered species, or (3) to irrigate crops sold
in commerce. 51 FR 41217 (November 13, 1986), 53 FR 20765 (June 6, 1988).
The SWANCC holding was limited to invalidating Clean Water Act jurisdiction over certain nonnavigable, intrastate waters solely because those waters are used by migratory birds.
Bush Administration Proposal
The Bush administration’s Advance Notice of Proposed Rulemaking (ANPRM) – and the new
regulatory guidance issued with the ANPRM – put at risk all of the “other” types of waters included in
category 3 of the existing regulations (highlighted above), the tributaries and impoundments of these
waters, and adjacent wetlands that are not themselves waters of the US. This includes streams, ponds,
lakes, wetlands and other waters that are not navigable and are wholly within one state.
Specifically, the Federal Register notice solicits comment on the following issues:
(1) Whether, and, if so, under what circumstances, the factors listed in 33 CFR 328.3(a)(3)(i)-(iii) (i.e.,
use of the water by interstate or foreign travelers for recreational or other purposes, the presence of fish
or shellfish that could be taken and sold in interstate commerce, the use of the water for industrial
purposes by industries in interstate commerce) or any other factors provide a basis for determining
CWA jurisdiction over isolated, intrastate, non-navigable waters?
(2) Whether the regulations should define “isolated waters,” and if so, what factors should be considered
in determining whether a water is or is not isolated for jurisdictional purposes?
68 FR1992 (January. 15, 2003) (emphasis added).
→ These questions are not limited to “wetlands” but refer to “waters” including all of the waters
in category 3 of the regulations: streams, rivers, natural ponds, lakes, wetlands and other waters
that are not navigable and are wholly within one state, as well as tributaries and impoundments of
these waters, and adjacent wetlands that are not themselves “waters of the United States”.
A critical issue to the ANPRM (and accompanying guidance) is what types of waters the Bush
administration will treat as “isolated.” The term “isolated” is not used in the Clean Water Act; it is
clear from the language and history of the Act that the law meant to protect all waters of the U.S. – not
to exclude an artificial, administratively-created category of waters called “isolated.” Depending on
how broadly “isolated” is defined by the administration, the number of waters placed in jeopardy by the
ANPRM and guidance could be very large – and will affect many waters in every State in the nation.
In Congressional testimony last September, EPA and Corps officials publicly questioned whether the
CWA regulations should continue to cover headwater streams and non-navigable tributaries of
navigable waters, as well as wetlands not directly adjacent to traditionally navigable waters. These
waters are not isolated from the hydrologic system in any scientific sense, although they may be
called “isolated” by Bush officials and industry groups seeking to limit the types of waters the Act
has protected for 30 years.
In addition, the ANPRM invites views “as to whether any other revisions are needed to the existing
regulations on which waters are jurisdictional under the CWA.” 68 FR 1992 (January 15, 2003).
This open-ended invitation is troubling, but the number of waters explicitly placed in jeopardy by the
first two questions is already expansive and threatens the majority of streams and wetlands in the US.
It is important to note that the ANPRM rulemaking (and accompanying guidance, which is already in
effect) affects the application of the entire Clean Water Act, not just one part of the Act or one
permitting program. The Act has one definition of waters that applies to the entire law, so
whichever streams, ponds, lakes, wetlands and other waters the proposed rulemaking and guidance try
to leave unprotected by the CWA – those waters would no longer be treated by EPA and the Corps as
subject to federal legal protection against pollution, filling, and destruction. For those excluded waters,
federal agencies would no longer enforce the general federal prohibition against discharges of pollutants
(CWA § 301), the requirement to get a permit prior to discharging pollutants such as industrial
wastewater or fill (CWA §402, §404), oil spill liability (CWA § 311), and enforcement provisions.
The Federal Register notice itself explicitly states that the ANPRM would affect numerous EPA
Clean Water Act regulations, including 40 CFR Parts 110 (discharge of oil), 112 (oil pollution
prevention), 116 (designation of hazardous substances), 122 (NPDES point source permits), 230
(specification of disposal sites for dredged or fill material), 300 (oil and hazardous substances spill
contingency plans), and 401 (general provisions of the Act). See 68 FR 1991 (January 15, 2003).
For More Information, Contact Joan Mulhern, Senior Legislative Counsel, 202-667-4500