cast broadly to include the surface water and groundwater sections as defined by science of the hydrologic cycle. From a regulatory standpoint, justification was identified as being under what was referred to as the Waters of the United States (aka ‘WOTUS’). From wetlands, through lakes and streams to discharge into the oceans, EPA, the USACEand their partners had the authority to take action to protect water quality and to a lesser degree, water supply. This definition was used by other federal agencies and by state agencies through delegation. Arguably the system worked and marked progress has been made over the last 40+ years for the restoration of the U.S. surface water quality and supply. Not everyone agreed that the jusrisdicitonal scope of the Waters of the United States, especially in its broad interpretation of the concept of navigable waters, the migratory bird rule and what constitutes isolated waters. Under the rulings of two key cases heard by the U.S. Supreme Court in 2001 and 2006 respectively, the Court shrank the jurisdictional reach of the federal agencies and functionally removed their protections from a significant portion of the watersheds/surface waters of
the United States. In a 5-4 decision of the Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers , the Court ruled that the interpretation of the migratory bird rule by the USACE in conjunction with EPA was in error. “Isolated waters” should not be considered within the purview of the agencies for requiring discharge and other permits under the Clean Water Act. In 20006, in the Rapanos v. United States case, a majority of the Court ruled against the EPA in its ability to rule against Rapanos for their actions and remanded the case to a lower court to retry the matter. A four-member plurality of the court argued that the ability to regulate wetlands represented an overreach of authority under the Clean Water Act. These key Supreme Court rulings created gaps for regulation of surface waters under the Clean Water Act and removed large areas from its protections. Even with the WOTUS rule as it existed before the SWANCC and Rapanos decisions, loss and degradation of wetlands were still taking place at an unacceptable rate. Under the Obama Administration, the USACE and EPA in conjunction with the Department of Justice and
other agencies, and under the rules and guidelines laid out under the Administrative Procedures Act, crafted a new Clean Water Rule (WOTUS rule) that would have restored the jurisdictional scope of the Clean Water Act, but this time grounded firmly in legal precedent, traditions and most importantly, from a constitutional standpoint. The new Clean Water Rule was published in 2015 and challenged in the Courts in 2017. Many legal scholars opined that the new Rule would in all probability withstand Court challenge and become the law of the land. The Trump Administration withdrew the Clean Water Rule and has been undergoing an expedited administrative process to craft a Rule which many believe will reduce the jurisdictional scope of the Act to that which is in line with Court ruling or more. The Trump administrative rulemaking is being challenged as is its right to sideline the Obama era rule. Let us hope these challenges succeed and the Obama era rule prevails. It is decidedly better for achievement of the intent of the Clean Water Act and its goals to protect water quality and the integrity of our water resource systems. ■
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