The Clean Water Act and Its Legal Complications


In the 1985 Supreme Court case United States v. Riverside Bayview Homes, Inc. it was debated whether or not the Army Corps of Engineers had the legal right to require landowners in the Riverside Bayview Homes community to apply for and receive permits before being allowed to discharge material into wetlands that were adjacent to nearby bodies of water.[i] In the court’s decision, which was delivered by Justice Byron White, a regulatory law known at the “Clean Water Act” was emphasized as the primary medium for determining the result of case. As outlined by Justice White, the Clean Water Act deals with preventing the, “discharge of dredged or fill materials into “navigable waters’’ which the court reveals as being formally titled the "waters of the United States.”[ii] Justice White emphasizes the tributaries of these navigable waters as well as all “freshwater wetlands,” areas that are characterized by their farmable soil.[iii] Ultimately, the Court ruled unanimously that the Corps was correct in requiring the landowners of Riverside Bayview Homes to apply for permits.[iv] United States v. Riverside Bayview Homes was one of the earliest instances of the Clean Water Act being legally recognized in the Supreme Court as a mechanism to protect the integrity of U.S. water.


Despite the seeming assurance in U.S. v. Riverside Bayview Homes, the actual legal status of the waters of the United States has been a legal wormhole. U.S. v. Riverside Bayview Homes found its ruling within the Clean Water Act of 1972, but water law in the United States has been continually evolving in the decades since then. Two court cases in the early 2000s, Rapanos v. United States and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, transformed the legal application of the Clean Water Act from something that seemed simple to a web of uncertainty.


The case of Rapanos v. United States involved ditches that were adjacent to Michigan wetlands and were not themselves navigable waters, but which instead emptied into navigable water that was considered by a U.S. District Court as water of the United States.[v] John Rapanos had filled several ditches near these Michigan wetlands, but did not file a permit to do so as he was not aware that they were legally considered U.S. water.[vi] In response, a U.S. District Court claimed that Rapanos violated federal law because he developed in wetlands adjacent to waters of the United States.[vii] Rapanos won his suit, but only because the Supreme Court was deeply divided in a 4 voting to affirm, 4 voting to vacate, and one (Justice Kennedy) voting to vacate but under a different standard[viii] Rapanos raised several questions. Were U.S. waters only those adjacent streams, tributaries, and wetlands to navigable water, or also the waters adjacent to those other adjacent waters? Rapanos put the way that the U.S. regulates water into a legal quandary where cases now had to be decided on an individual basis, since its divided ruling prevented it from becoming concrete policy.[ix]


Each Supreme Court judge proposed their own test for determining whether a body of water was legally considered water of the United States. Justice Antonin Scalia wrote that the method for determining whether water was federally protected was to trace how exactly the water in question traveled to federally protected navigable water and to identify whether the flow was consistent or if it “was intermittent” or “occasional.”[x] Justice Stevens, who dissented to the Court’s decision, claimed that determining whether or not water is federally protected is “straightforward,” writing that the Army Corps decided for a specific reason to protect not just navigable waters but also their adjacent streams so that water does not become polluted and therefore the biological life in the United States can be protected.[xi] Because of the ambivalent opinion in Rapanos, individual lower courts took it upon themselves to utilize whatever interpretation of the Clean Water Act best suited them, and the legal uniformity that seemed to be promoted in Riverside Bayview Homes was thus destroyed.[xii] This lack of unity caused the presidential administration that followed the Rapanos case, the Obama administration, to make it a key point to resolve the discrepancies in water regulation.


The chaos caused by Rapanos is what led to the birth of the Clean Water Rule, also known as The Waters of the United States Rule. The Clean Water Rule is not a new act of law, but rather a clarification issued as an executive action by President Obama. In it, there is a new definition for the waters of the United States. In this definition, the rule describes the necessity of ensuring the protection of the nation’s public health and aquatic resources by increasing the predictability and consistency of the application of the “waters of the United States” protected under the Clean Water Act.[xiii] The Clean Water Rule also outlined new scientific studies by the Environmental Protection Agency, which demonstrated that the connectivity of streams to navigable waters was higher than previously thought, leading to the same conclusion as Justice Stevens and the rest of the dissenters in Rapanos that more expansive protection for streams, ditches, tributaries may be necessary.[xiv] The Rule redefined the waters of the United States as not just the prior navigable waters, interstate waters, adjacent waters, and territorial seas, but also recognized a new jurisdiction for water with a connection to those adjacent and protected waters if it was determined that its connection to the main navigable water to which the adjacent had a “primary nexus” i.e. was significant.[xv] The Rule also clarified the legal status of ditches that may become waters of the United States. There was controversy over the decision to increase protections to certain ditches, but the rule alleges that it was necessary to make sure that biological life was completely protected.[xvi] The Rule also includes that the increased protection is nothing new, because agencies have always considered them to technically be waters of the United States.[xvii]


The backlash to the Clean Water Rule was immediate. Farmers and others in the agricultural sector worry that the rule defines tributaries and ditches so broadly that it soon will become difficult to know which water is and isn’t regulated on their lands.[xviii] Because of the geography of the American West, where agriculture reigns supreme, irrigation water is crucial, leading to many Western farms possessing canals and ditches which flow water downstream (i.e. away) from streams.[xix] However, because these canals and ditches are open, they are still used as water sources for wildlife and shape the ecosystem.[xx] Because of this, farmers worry that their ditches and canals will become subject to regulation, and with close reading of the bill, it is easy to recognize that they are right to be afraid.[xxi] The only solution that would protect farmers from having their necessary irrigation systems regulated would be to convert them into piping systems, but which would then be subject to environmental regulations and would also be cost-prohibitive for many.[xxii]


National Association of Manufacturers v. Department of Defense (NAM) is a case currently pending before the Supreme Court involving the Clean Water Rule. The National Association of Manufacturers is an association that represents over 13,000 companies, whose members range from multinational corporations to small regional start-ups.[xxiii] The NAM is challenging the Clean Water Rule’s definition of the waters of the United States, demanding that they change the scope in a way that does not put those in the agricultural industry at risk of increased regulation and also that they clarify the definition of the waters of the United States in a way that does not put farmers into the same legal limbo that existed after Rapanos.[xxiv] Oral arguments were heard in early October.


However, it is important to note that repealing the Clean Water Rule will not solve all of the legal problems that the Trump administration claims it has raised for farmers and ranchers.[xxv] Rather, it will make those issues dependent on the opinions of the lower courts that govern the areas in which individual farmers and ranchers live, as it was during the era following Rapanos. If the Trump Administration wants to eliminate the issue of the regulation of farmer ditches entirely, the only real legal avenue would be to instead repeal or reduce the Clean Water Act. Perhaps that has been the goal all along. Therefore, the Trump administration’s mission to repeal the Clean Water Rule is the first step in the elimination of those environmental regulatory factories of the U.S. federal government and the beginning of the end for the Environmental Protection Agency.

[i] United States v. Riverside Bayview Homes, Inc. 474 U.S. 121, 123 (U.S. Supreme Court, 1985).

[ii] id, at 124.

[iii] id, at 125.

[iv] id, at 140.

[v] Rapanos v. United States. 547 U.S. ___ (U.S. Supreme Court, 2006)

[vi] id.

[vii] id.

[viii] Hurley, Lawrence. “Supreme Court’s Murky Clean Water Act Ruling Created Legal Quagmire.” The New York Times, The New York Times, 7 Feb. 2011, online at www.nytimes.com/gwire/2011/02/07/07greenwire-supreme-courts-murky-clean-water-act-ruling-cr-33055.html

[ix] id.

[x] Rapanos v. United States.

[xi] id.

[xii] “Supreme Court’s Murky Clean Water Act Ruling Created Legal Quagmire”

[xiii] Clean Water Rule: Definition of “The Waters of the United States”; Final Rule, Vol. 80 Fed. Reg. 37054 (June 29th, 2015) (to be codified at 33 CFR Part 328 and 40 CFR Parts 110, 112, 116, et al.)

[xiv] id, at 37063.

[xv] id, at 37073.

[xvi] id, at 37079

[xvii] id.

[xviii] Waskom, Reagan, and David J. Cooper. “Why Farmers and Ranchers Think the EPA Clean Water Rule Goes Too Far.” PBS, Public Broadcasting Service, 4 Mar. 2017, online at www.pbs.org/newshour/nation/farmers-ranchers-think-epa-clean-water-rule-goes-far.

[xix] id.

[xx] id.

[xxi] id.

[xxii] id.

[xxiii] “National Association of Manufacturers v. Department of Defense.” Oyez, 11 Nov. 2017, online at www.oyez.org/cases/2017/16-299

[xxiv] id.

[xxv] Kennedy, Merrit, and Susan Philips. “Trump Aims to ‘Eliminate’ Clean Water Rule.” NPR, NPR, 28 Feb. 2017, online at www.npr.org/sections/thetwo-way/2017/02/28/517016071/trump-aims-to-eliminate-clean-water-rule.