Last week the Environmental Protect Agency and Department of the Army announced the agencies’ intent to initiate new rulemaking that restores the Obama era waters of the United States rule that was in place pre-2015, and before the current Trump era rule.

This proposed rule will impact large swaths of America not only those directing the course of a ship (as its name implies), but will restrict farming, real estate development, road building and other large areas of economic activity across the country (except not in Colorado); so, we should all care.

For those uninitiated in the moving target describing what are “navigable waters of the United States,” defining where those waterways begin and end, has since the enactment of the 1899 Rivers and Harbors Act been the subject of disputes between the federal government and land owners.

The 1899 Rivers and Harbors Act is arguably the oldest federal environmental statute in the United States. The Act makes it criminal to discharge matter of any kind into the navigable waters, or tributaries thereof, of the United States without a permit. The Act also makes it a misdemeanor to excavate, fill, or alter the course, condition, or capacity of any port, harbor, channel, or other areas within the reach of the Act without a permit. The Act also makes it illegal to dam navigable streams without a permit.

Of note, Section 10 states that “All waters subject to the ebb and flow of the tide (tidal action) are navigable waters of the US”.

Appropriating that definition, the Clean Water Act, enacted nearly a century later in 1972, prohibits the discharge of pollutants from a point source to navigable waters unless otherwise authorized under the Act. Navigable waters are identified in the Clean Water Act as “the waters of the United States, including the territorial seas.” Thus, “navigable waters of the United States” is of paramount import in establishing the geographic scope of federal jurisdiction under the Clean Water Act.

The term “navigable waters of the United States” is not defined by the Clean Water Act but has been detailed by EPA and the Army in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities.

There has been perversion of what are “navigable waters of the United States” for nearly 100 years including most recently from the 1970s through the 1990s, when federal courts as well as the agencies interpreted an expanded bigger moving upstream scope of Clean Water Act jurisdiction as necessary to and consistent with the Act’s goals of protecting water quality.

It has been nearly 50 years since the Cuyahoga River caught fire spurring the 1972 passage of the Clean Water Act. The law was intended to target big, point source pollution like sewage leaks and oil spills, and the continuing efforts to use a definition of navigable water from the 1899 Rivers and Harbors Act to describe the scope of the Clean Water Act, not only does not well serve the potable water issues of the day, and are not only politicized science, but down right silly. The Obama era rule greatly expanded the areas under jurisdiction, including for example, to cover all land within the 100 year flood plain as a ‘navigable water’ conflating the 1968 flood insurance program intended to protect structures with an environmental resource worthy of protection.

It is suggested the Obama era rule, repealed in 2019, expanded what was a navigable water too far including waterways with a “significant nexus” to navigable waterways and the Trump era contraction in favor of states rights, effective in 2020, was too broad. And nearly all agree this constant unpredictable change, as politics change in the White House, results in uncertainty that does not repair our planet.

Many see this new action as a positive step toward what is properly “navigable waters of the United States” and maybe best characterized as back to the future, but it is suggested this is not a good way to make environmental public policy and that following nearly 100 years without the indispensable definition, Congress should act to create one.

The EPA announcement is here.