Clean Water Act

The federal Clean Water Act (CWA) is the main piece of federal legislation that protects the Nation's waters. Within the CWA, there are a number of sections that specifically address protection or regulation of wetlands. For example, Section 303 addresses water quality standards; Section 401 includes 401 Certification—to condition permits; Section 402 addresses the National Pollutant Discharge Elimination System (NPDES); and Section 404 includes the dredge and fill permitting program as well as State Assumption.

The Clean Water Act was weakened by the U.S. Supreme Court after the split decision known as the Rapanos and Carabell Decision in 2006, which followed another complex debate known as the SWANCC Decision in 2001. In 2015, under the Obama Administration, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) released the Clean Water Rule to clarify jurisdiction over streams and wetlands. Legal challenges immediately ensued which held up the rule in court. In fact, 28 states successfully sought injunctions to block enforcement of the 2015 WOTUS Rule in federal courts around the country. The result was that 28 states ended up reverting to the pre-2015 definition of “waters of the Unites States” (WOTUS) and 22 states remained under the new 2015 WOTUS Rule.

On February 28, 2017, President Trump issued a Presidential Executive Order entitled “Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule” which directed the EPA and the Department of the Army to review the 2015 Rule defining WOTUS for consistency with the new Administration’s priorities and publish for notice and comment a proposed rule rescinding or revising the 2015 Rule, as appropriate and consistent with the law. Further, the Order directed the agencies to consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006) whereas previous to the 2015 Rule, the Kennedy opinion had prevailed, using the significant nexus test.

On October 22, 2019, the EPA and the Corps published a final rule (Step One) to repeal the 2015 Rule defining “waters of the United States” and re-codify the regulatory text that existed prior to the 2015 Rule. The final Step One rule became effective on December 23, 2019. Read the final Step One rule. On January 23, 2020, the EPA and the Corps finalized the Navigable Waters Protection Rule (Step Two) to redefine “waters of the United States” (WOTUS).The Step One rule will be replaced by the Navigable Waters Protection Rule upon its effective date, 60 days after publication in the Federal Register.

Throughout the years and all of the legal challenges beginning in 2001 and earlier, the Association of State Wetland Managers has worked to stay abreast of potential changes in jurisdiction and practical application of the Clean Water Act in order to keep state wetland program managers prepared and equipped to navigate any changes or impacts to their programs.

To view past recorded webinars regarding the Clean Water Act, legal challenges and the Clean Water Rule, click here.

To find information about future webinars regarding the Clean Water Act et al, click here.

Information and Summaries of The Navigable Waters Protection Rule

Actions & Information Regarding the Clean Water Rule

Lawsuits filed in response to publication of Clean Water Rule

Useful Publications Regarding Wetlands & Jurisdictional Issue

Geographically Isolated Wetlands of the United States

ASWM has a robust collection of discussion papers on wetlands and jurisdictional issues, Rapanos, SWANCC and other significant court cases under Law on the menu.