Coalition of State Attorneys General Sent Letter to Environmental Protection Agency (EPA) and the Army Corps of Engineers Opposing the Biden Administration’s Effort to Expand Federal Authority over the Nation’s Waterways (WOTUS)
Hon. Michael S. Regan & Hon. Jaime A. Pinkham February 7, 2022
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Congress did not expressly define “the waters of the United States” in the CWA’s text, so courts and agencies have wrestled with the definition for years. In the CWA’s predecessor statutes, “navigable waters of the United States” referred to “interstate waters that are ‘navigable in fact’ or readily susceptible of being rendered so.” Rapanos v. United States, 547 U.S. 715, 723 (2006) (plurality op.) (quoting The Daniel Ball, 10 Wall. 557, 563 (1871)). And since 2001, the Supreme Court has twice rejected the Agencies’ attempts to expand their scope of regulatory authority under the CWA by defining “the waters of the United States” too broadly. See Rapanos, 547 U.S. 715 (4-1-4 split ruling with a plurality and Justice Kennedy rejecting the Corps’ broad assertion of authority over wetlands, but remanding for consideration under different standards); Solid Waste Agency of N. Cook Cty. v. Army Corps of Eng’rs, 531 U.S. 159 (2001) (“SWANCC”) (declining to include as “waters of the United States” isolated waters used as a habitat by migratory birds).
After Rapanos, the Agencies announced that they planned to identify jurisdictional waters using reasoning drawn from the Rapanos dissenters’ view of the operative test. See U.S. EPA & U.S. Army Corps of Engineers, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, at 3 (Dec. 2, 2008). Specifically, the Agencies concluded that CWA jurisdiction “exists over a water body if either the plurality’s [relatively permanent standard] or Justice Kennedy’s [significant nexus] standard is satisfied.” Id. at 3 & n.15 (citing Rapanos, 547 U.S. at 810 (Stevens, J., dissenting) (“judgments should be reinstated if either of those tests is met”)); contra Marks v. United States, 430 U.S. 188, 193 (1977) (the holding of a divided court “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds” (emphasis added)).
