The federal Clean Water Act (CWA) clearly states that the federal government has jurisdiction over the “Navigable Waters of the United States (Waters of the U.S.),” with the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) serving as the governing bodies who implement CWA policies. Specifically, the EPA and the Corps serve as permitting agencies for all federal, state, and local actions that impact federal waters.
Since 1985, several rulings by the U.S. Supreme Court have brought into question the scope of federal jurisdiction under the CWA. Specifically, the central policy point is whether the federal government has the authority to oversee and regulate many of the nation’s wetlands, whether or not they have a physical nexus to federal navigable waters. Since 2008, there have been many attempts at the federal level, both congressional and regulatory, to expand the EPA and Corps jurisdiction. Any such expansion would heavily impact local control over permitting and land use by requiring federal involvement for any action affecting a body of water.
In 2014, the EPA and Corps proposed a highly controversial rule that would change the definition of Waters of the U.S. to expand federal jurisdiction to include some wetlands, waters that are adjacent to traditional navigable water, and other undefined, marginal waters. The proposal was met with widespread criticism, including bipartisan Congressional opposition, due to the additional authority the rule would give the agencies over various bodies of water. The rule was also widely panned as unclear and confusing as stakeholders called for the EPA and Corps to withdraw the proposal. Members of Congress proposed several bills, including riders on appropriations bills, to prevent the EPA and Corps from implementing the rule once finalized.
Despite several lawsuits to enjoin and ultimately overturn the rule, the rule was finalized and put into effect on August 28, 2015. However, on October 9, 2015, a ruling by the U.S. Court of Appeals for the Sixth Circuit blocked implementation of the rule while litigation continued over legality of the rule. Since then, the Trump Administration has expressed its intent to repeal and redraft the rule with a greater level of input from state and local governments, an ongoing process which began in early 2017. RCRC will continue to oppose the expansion of federal jurisdiction over Waters of the U.S. to preserve local control over permitting and land use decisions.
Staff: Staci Heaton