Legislative Approaches to Defining “Waters
of the United States”
Claudia Copeland
Specialist in Resources and Environmental Policy
April 30, 2010
Congressional Research Service
7-5700
www.crs.gov
R41225
CRS Report for Congress
P
repared for Members and Committees of Congress

Legislative Approaches to Defining “Waters of the United States”

Summary
In the 111th Congress, legislation has been introduced that seeks to clarify the scope of the Clean
Water Act (CWA) in the wake of Supreme Court decisions in 2001 and 2006 that interpreted the
law’s jurisdiction more narrowly than prior case law. The Court’s narrow interpretation involved
jurisdiction over some geographically isolated wetlands, intermittent streams, and other waters.
The two cases are Solid Waste Agency of Northern Cook County v. Army Corps of Engineers
(SWANCC) and Rapanos v. United States.
Bills to nullify the Court’s rulings have been introduced repeatedly since the 107th Congress, but
none had advanced until the 111th Congress. In June 2009, a Senate committee approved S. 787,
the Clean Water Restoration Act. Companion legislation in the House, H.R. 5088 (America’s
Commitment to Clean Water Act), was introduced in April 2010.
Under current law, the key CWA phrase which sets the act’s reach is the phrase “navigable
waters,” defined to mean “the waters of the United States, including the territorial seas.”
Proponents of the current legislation contend that the Court misread Congress’ intent when it
enacted the CWA, and consequently the Court’s ruling unduly restricted the scope of the act’s
water quality protections. Both S. 787 and H.R. 5088 would replace the phrase “navigable
waters” in the CWA with “waters of the United States” and would install a definition of “waters
of the United States,” not found in the law now. The bills differ in how they would define the
phrase. The Senate committee bill includes a definition drawn from one paragraph of existing
federal regulatory text, while H.R. 5088 includes a longer definition based on the same regulatory
language, but with some modifications. Both bills also include provisions affirming the
constitutional basis for the act’s jurisdiction. These provisions address the concern that the
Court’s rulings, while decided on statutory grounds, raised related questions about the outer limits
of Congress’s power to regulate waters with little or no connection to traditional navigable waters
under the Commerce Clause of the Constitution.
Proponents of the current legislation, including many states and environmental advocacy groups,
contend that the Court’s ruling in these cases, and subsequent regulatory guidance by federal
agencies, have unsettled several decades’ worth of case law, misreading or ignoring congressional
intent, and thus reinterpreting and narrowing the jurisdictional scope of the act. Supporters say
that the intention is to return to the CWA regulatory jurisdiction that prevailed before the Court’s
rulings. On the other hand, critics, including many industry groups and development and home
builder organizations, contend that the legislation would greatly expand federal regulatory
jurisdiction of the CWA beyond interpretations that existed before the two Supreme Court rulings,
not simply reaffirm congressional intent. They are concerned that the legislation has the potential
to be interpreted far more broadly than what was previously understood to be jurisdictional—thus
causing more uncertainty, rather than clarifying the issue.
Between proponents and critics, there is wide disagreement whether the new statutory definition
proposed in either bill, coupled with other changes, will achieve the objective of clarity and
certainty that is broadly desired. In light of the differing views on the issues, future prospects for
either bill are uncertain. The legal and policy questions associated with the SWANCC and
Rapanos cases—concerning the outer geographic limits of CWA jurisdiction and consequences of
restricting that scope—have challenged regulators, landowners and developers, and policymakers
for more than 35 years.
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Legislative Approaches to Defining “Waters of the United States”

Contents
Introduction ................................................................................................................................ 1
S. 787 ......................................................................................................................................... 3
H.R. 5088 ................................................................................................................................... 5
Analysis...................................................................................................................................... 6
Concluding Thoughts .................................................................................................................. 9

Tables
Table A-1. Definitions of “Waters of the United States”............................................................. 11

Appendixes
Appendix. Regulatory and Proposed Statutory Definitions of “Waters of the United
States” ................................................................................................................................... 11

Contacts
Author Contact Information ...................................................................................................... 15

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Legislative Approaches to Defining “Waters of the United States”

Introduction
In the 111th Congress, legislation has been introduced that seeks to clarify the scope of the Clean
Water Act (CWA) in the wake of two Supreme Court decisions that interpreted the law’s
jurisdiction more narrowly than prior case law. The Court’s narrow interpretation involved
jurisdiction over some geographically isolated wetlands, intermittent streams, and other waters.
These cases dealt specifically with CWA section 404, the so-called “dredge and fill” program,
under which permits are required for discharges of dredged or fill material. But the decisions are
significant for the act as a whole, since the regulatory definitions at issue govern not only section
404, but also many other provisions and requirements of the law, including section 402 (permit
program for point source discharges into navigable waters), section 303 (water quality standards
for navigable waters), and section 311 (discharges of oil and hazardous substances into navigable
waters).
First, in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC),
531 U.S. 159 (2001), the Court addressed the issue of CWA jurisdiction over “isolated waters”—
waters that are not traditional navigable waters (sometimes called navigable-in-fact waters), are
not interstate, are not tributaries of the foregoing, and are not hydrologically connected to
navigable or interstate waters or their tributaries. The Court held 5-4 that the scope of jurisdiction
under the CWA does not extend to isolated, nonnavigable, intrastate waters in cases where
jurisdiction is asserted purely on the ground that they are or might by used by migratory birds that
cross state lines. However, the ruling created uncertainty about what isolated waters and wetlands
would no longer be subject to federal regulation, because scientists and regulators recognize that
many types of isolated wetlands that provide important ecological functions are not physically
adjacent to navigable waters.
Second, in Rapanos v. United States, 547 U.S. 715 (2006), the Court addressed CWA jurisdiction
over “adjacent wetlands,” specifically wetlands adjacent to tributaries of traditional navigable
waters. The Court issued a split 4-1-4 ruling. A four-justice plurality opinion, written by Justice
Scalia, adopted a test restricting jurisdiction under section 404 of the act to relatively permanent
bodies of water and wetlands with a continuous surface connection to waterbodies that are
themselves waters of the United States. In a concurring opinion, Justice Kennedy proposed a
case-by-case test to establish a significant nexus to waters of the United States for jurisdiction
over adjacent wetlands to exist under the act. A wetland, he declared, has the requisite significant
nexus if, alone or in combination with similarly situated lands in the region, it significantly
affects the chemical, physical, and biological integrity of traditional navigable waters.1 These
ecological functions include flood retention, pollutant trapping, and filtration. Under Kennedy’s
opinion, the waters that perform these functions may be intermittent or ephemeral, and they need
not have a surface hydrological connection to other waters. When, in contrast, their effects on
water quality are speculative or insubstantial, the wetland is beyond section 404’s reach.2 Because
no single opinion in Rapanos commanded the support of five or more Justices, the scope of CWA
jurisdiction has remained unsettled, and lower courts have diverged as to the rule of decision to
be applied in specific cases.3

1 547 U.S. at 780.
2 Id.
3 For more information on and implications of the Court’s rulings, see CRS Report RL33263, The Wetlands Coverage
(continued...)
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Bills to nullify SWANCC, or in later versions SWANCC and Rapanos, and reinstate the
interpretation of “waters of the United States” prevailing before those decisions, have been
introduced in recent Congresses, but none had advanced until the 111th Congress. Obama
Administration officials have supported the need for legislative clarification of these issues,
marking the first time that the Administration has done so. In May 2009, the heads of the
Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps), the
Department of Agriculture, the Department of the Interior, and the Council on Environmental
Quality jointly wrote to congressional leaders to express that view and to identify certain
principles that might help guide legislative and other actions.4
The current legislation introduced in response to these rulings is S. 787 (the Clean Water
Restoration Act), introduced by Senator Feingold and approved, with amendments, by the Senate
Environment and Public Works Committee in June 2009,5 and H.R. 5088 (America’s
Commitment to Clean Water Act), introduced by Representative Oberstar on April 21, 2010.
Proponents of the legislation contend that the Court’s rulings in these cases, and subsequent
regulatory guidance issued by the Corps and EPA in 2003, 2007, and 2008, have unsettled several
decades’ worth of case law, misreading or ignoring congressional intent, and thus reinterpreting
and narrowing the jurisdictional scope of the act. The rulings and agency responses, they say,
have removed regulatory protection from some waters and wetlands and thereby weakened
protection of the nation’s water quality. Supporters state that the intention of the legislation is to
return to the CWA regulatory jurisdiction that was recognized before the Court’s 2001 and 2006
rulings. Both S. 787 and H.R. 5088 share that objective, but they would do so in somewhat
different ways, as described in this report.
On the other hand, critics contend that the bills would greatly expand federal regulatory
jurisdiction of the CWA over the pre-SWANCC interpretation, not simply reaffirm congressional
intent. They are concerned that the proposed definition of “waters of the United States” is
ambiguous, and that the changes proposed by the bills have the potential to be interpreted far
more broadly than what was understood to be jurisdictional before 2001—thus causing more
uncertainty, rather than clarifying the issue.
In general, supporters of the bills include many states and state environmental organizations,
environmental and conservation advocacy groups, as well as a number of outdoor, hunting,
fishing, and sporting organizations, who argue that enactment of the bills will provide needed
strengthening of CWA protection for water quality and wetlands. In general, critics and opponents
include many manufacturing industry groups and agricultural interests, as well as land
development and home builder organizations, who contend that the bills fundamentally alter the
regulatory reach and balance of federal and state authority under the CWA.

(...continued)
of the Clean Water Act (CWA) Is Revisited by the Supreme Court: Rapanos v. United States, by Robert Meltz and
Claudia Copeland. A majority of the federal regional circuits have addressed the issue.
4 See http://epw.senate.gov/public/index.cfm?FuseAction=Majority.PressReleases&ContentRecord_id=64739ae3-
802a-23ad-4c30-36fc58cc1014&Region_id=&Issue_id=.
5 The analysis in this report is based on review of S. 787 as introduced, and amendments adopted during committee
markup. The committee’s report on the bill has not yet been issued.
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S. 787
The bill approved by the Senate Committee on Environment and Public Works is an amended
version of legislation introduced by Senator Feingold in April 2009.6 Section 1 is the Short Title
of the bill, and Section 2 describes two purposes: “to reaffirm the original intent of Congress” in
enacting the CWA in 1972 (P.L. 92-500; 33 U.S.C. §§ 1257-1387) and to “clearly define the
waters of the United States” subject to the CWA as the phrase was interpreted in applicable
regulations and guidance in effect prior to the SWANCC ruling.
Section 3 makes 24 findings, including several about the economic and ecological importance of
protecting intrastate waters and wetlands, and others about the importance of protecting small and
intermittent streams from pollutant discharges. It also includes findings that the legislation
overturns the Supreme Court’s SWANCC and Rapanos rulings and reaffirms federal jurisdiction
over all waters of the United States as the CWA was applied and interpreted in rules, guidance,
and interpretations of EPA and the Corps prior to those decisions. The findings as approved by the
Senate committee significantly modified findings in the bill as introduced, deleting many from
the original bill and adding new findings. It should be noted that the findings in a statute are not
binding, operative provisions, although they may influence to varying degrees agencies’
regulatory decisions and the judicial interpretation of the operative provisions elsewhere in a
statute or a court’s assessment of a statute’s constitutionality.7
Section 4 is the important definitional provision of the bill, because it would affect the key CWA
phrase which sets the act’s reach, and which legislative history, regulations and cases all attempt
to interpret—the phrase “navigable waters.” The current CWA defines “navigable waters” to
mean “the waters of the United States, including the territorial seas.”8 S. 787 would strike this
term and its definition and install “waters of the United States” as the direct jurisdictional phrase,
a term that is defined in EPA and Corps regulations, but currently not in statute (see Table A-1
which compares existing regulatory text and proposed statutory text).9 Section 4 would define the
term “waters of the United States” in the CWA to mean—
all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and
intrastate waters, including lakes, rivers, streams (including intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds,
all tributaries of any of the above waters, and all impoundments of the foregoing.
Section 4 also would exclude from the new statutory definition two terms that currently are
excluded from jurisdiction by regulation only: prior converted cropland, and waste treatment
systems. Prior converted cropland means a wetland that was manipulated or used to produce an
agricultural commodity before December 23, 1985.10 Waste treatment systems refer to treatment
ponds or lagoons designed to meet the requirements of the CWA, including only manmade bodies
of water which neither were originally created in waters of the United States (such as disposal

6 Senator Feingold also sponsored similar but not identical legislation in each Congress since the 107th.
7 See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005) (describing congressional findings as “helpful in reviewing the
substance of a congressional statutory scheme, particularly when the connection to commerce is not self-evident ...”).
8 CWA § 502(7); 33 U.S.C. § 1362(7).
9 33 CFR § 328.3 (Corps); 40 CFR § 122.2 (EPA).
10 7 CFR § 12.2.
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areas in wetlands), nor resulted from the impoundment of such waters.11 These two exemptions,
not in S. 787 as introduced, were included in an amendment adopted during committee markup.
Section 5 conforms the changes that would result from section 4 of the bill with the CWA as a
whole by replacing the phrases “navigable waters of the United States” or “navigable waters”
wherever they currently appear in the CWA with “waters of the United States.”
Section 6 is the Savings Clause. A savings clause is typically included in order to declare that the
legislation preserves—or would not affect—provisions, such as exemptions, granted under
existing law. Section 6 expressly would preserve CWA permit exemptions found in two
provisions of the act. First, subsections (6)(1) and (2) would preserve two exemptions in CWA
section 402(l), which is titled “Limitation on Permit Requirement.” Section 402 is the section that
authorizes National Pollutant Discharge Elimination System (NPDES) permits for point source
discharges from, for example, municipal sewage treatment facilities and manufacturing plants.
CWA section 402(l) prohibits the Administrator of EPA from requiring an NPDES permit for
discharges composed entirely of return flows from irrigated agriculture, or for discharges of
stormwater runoff from oil or gas mining operations. Complementing the exclusion of irrigated
agricultural return flows in section 402(l) is this exclusion in the Definitions provision of the act:
“This term [‘point source’] does not include agricultural stormwater discharges and return flows
from irrigated agriculture.”12
Second, the legislation would preserve six permit exemptions specified in CWA section 404(f)(1).
As noted previously, section 404 authorizes the Corps to issue permits for dredged or fill
materials into the navigable waters, including wetlands. Subsections 6(3) through (8) of S. 787
would preserve the existing section 404 exemptions for: normal farming, ranching, and
silviculture; maintenance of currently serviceable structures; construction or maintenance of farm
or stock ponds or irrigation and drainage ditches; temporary sedimentation basins on construction
sites; farm or forest roads or temporary roads for moving mining equipment; and activities under
a state program for placement of dredged or fill material (a program that is approved under CWA
section 208(4)(B)).13
As approved by the committee, Section 6 only references the eight saved provisions by statutory
citation. During markup, the committee adopted an amendment that dropped language in the bill
as introduced that additionally paraphrased each provision. Critics of the legislation had argued
that the paraphrasing language added confusion, rather than clarity.
Section 7 directs EPA and the Corps, within 18 months of enactment, to promulgate such
regulations as are necessary to implement the legislation and amendments made by the
legislation. Section 7 also states that the term “waters of the United States” shall be construed
consistently with the scope of federal jurisdiction under the CWA as interpreted and applied by

11 40 CFR § 122.2. This regulatory exemption allows mining projects, for example, to use a portion of a natural stream
to direct water to a sediment pond or other treatment system without having to obtain a permit.
12 33 USC § 1362(14). The CWA prohibits the discharge of a pollutant into navigable waters from a point source,
except in compliance with permit requirements of the act.
13 33 USC § 1342(f)(1). The specified activities also are protected from regulation under section 301 or section 402 of
the CWA (except for toxic effluent standards). Regulations to implement the 404(f)(1) exemptions are located at 40
CFR § 232.3(c).
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EPA and the Corps prior to January 9, 2001 (the date of the SWANCC ruling),14 and “the
legislative authority of Congress under the Constitution.”
H.R. 5088
The bill introduced by Representative Oberstar on April 21 is a modified version of legislation
that he has introduced previously.15 Like the Senate measure, Section 1 is the Short Title of the
bill, and Section 2 describes the purposes of the legislation. It includes two purposes similar to S.
787: to “reaffirm the original objective of Congress” in enacting the CWA and to “reaffirm the
definition of the waters of the United States” that are subject to the CWA consistent with
interpretations prior to the two Supreme Court rulings. H.R. 5088 includes a third purpose: to
protect the “waters of the United States” as authorized by specific constitutional powers—section
8 of article I (scope of legislative power, including the Commerce Clause), section 2 of article II
(Presidential power, including treaties), and section 3 of article IV (congressional power over
U.S. property) of the U.S. Constitution.
Section 3 makes 12 findings, for example about the importance of protecting small and
intermittent streams, including seasonal streams and their headwaters, which can affect the
introduction of pollutants to larger rivers and streams. It also includes findings about the
importance of water for agriculture, transportation, energy production, recreation, fishing and
shellfishing, and municipal and commercial uses. H.R. 5088 finds that the SWANCC and Rapanos
rulings impair the statutory protection of U.S. waters, contrary to congressional intent.
Section 4 is the important definitional provision of the bill. Like the Senate committee bill, it
would affect the key CWA phrase which sets the act’s reach. Also like the Senate committee bill,
H.R. 5088 would strike the term “navigable waters” and install “waters of the United States” as
the direct jurisdictional phrase. A key difference between the bills, however, is that while S. 787
would insert the fairly short text quoted above, H.R. 5088 would insert a longer definition based
closely on existing regulatory language of the Corps and EPA, but with some modifications (see
Table A-1 which compares existing regulatory text and proposed statutory text). Section 4 would
define the term “waters of the United States” in the CWA as including—
(i) all waters that are currently used, were used in the past, or may be susceptible to use in
interstate or foreign commerce, including all waters that are subject to the ebb and flow of
the tide;
(ii) all interstate and international waters, including interstate and international wetlands;
(iii) all other waters, including intrastate lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes,
or natural ponds, the use, degradation, or destruction of which does or would affect interstate
or foreign commerce, the obligations of the United States under a treaty, or the territory or
other property belonging to the United States;
(iv) all impoundments of waters otherwise defined as waters of the United States under this
paragraph;

14 This provision mirrors provisions in both the Purposes and Findings sections of S. 787.
15 Representative Oberstar sponsored bills in each Congress from the 107th through the 110th Congresses.
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(v) tributaries of waters identified in clauses (i) through (iv);
(vi) the territorial seas; and
(vii) waters, including wetlands, adjacent to waters identified in clauses (i) through (vi).
Section 4 of H.R. 5088 also would exclude from the new statutory definition two terms that
currently are excluded from jurisdiction by regulation only: prior converted cropland, and waste
treatment systems, and it would expressly define both terms. As noted above, S. 787 similarly
excludes both terms, but it does not include definitions.
Section 5 conforms the changes that would result from section 4 of the bill with the rest of CWA
as a whole by replacing the phrases “navigable waters of the United States” or “navigable waters”
wherever they currently appear in the CWA with “waters of the United States.”
Unlike S. 787, H.R. 5088 does not include a Savings Clause. The bill’s principal sponsor said that
creating a list of provisions not affected would be endless and of no legal value.16 Further, H.R.
5088 does not include either a provision addressing statutory construction or a provision calling
for regulations. New regulations would be unnecessary, according to the bill’s sponsor, because
the legislation largely codifies existing regulatory language.
Analysis
Both proponents and critics of S. 787 and H.R. 5088 want to achieve predictability and certainty
concerning what constitutes the geographic reach of CWA regulatory jurisdiction—that is, which
waters are protected by the act and are subject to regulation, and which are not. Proponents worry
that some waters are no longer protected, as a result of court rulings, while regulated entities say
that uncertainties about interpreting the rulings have led to costly and time-consuming delays in
obtaining jurisdictional determinations. But between the proponents and critics, there is wide
disagreement whether the new statutory definition proposed in either bill, coupled with removing
the word “navigable” from current law and other changes, will achieve the objective of clarity
and certainty.
The proposed definition of “waters of the United States” in both bills identifies specific kinds of
waters and wetlands that Congress intends be regulated. For example, prairie potholes and playa
lakes are types of wetlands that typically are hydrologically isolated. Supporters say that
including these as examples in the legislation gives a clear indication of congressional intent that
the act’s jurisdiction extends to hydrologically isolated waters—those waters that were the subject
of the SWANCC ruling.
The definitions in both bills are based on the existing Corps and EPA regulations, unchanged
since 1993 (see footnote 9). Some stakeholder groups have urged Congress to codify the
agencies’ regulations verbatim in the statute in order to provide the greatest clarity of intent, but
bill sponsors in the Senate rejected this approach and, instead, crafted a definition from several

16 “How America’s Commitment to Clean Water Act Addresses Comments to Prior Legislation,”
http://transportation.house.gov/Media/file/water/ACCWA/Comparison%20to%20Prior%20Legislation.pdf. Note,
however, that prior versions of House legislation did include a Savings Clause; see, for example, H.R. 2421, the Clean
Water Restoration Act, in the 110th Congress.
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parts of the regulatory text (see Table A-1). Some said that complete regulatory codification alone
would not solve all of the problems created by the Supreme Court’s rulings, since those rulings
were largely interpretations of those regulations.
However, in a major change from the approach in prior House bills, the authors of H.R. 5088 in
the 111th Congress have chosen to include a statutory definition that more closely follows the full
existing Corps-EPA regulatory language.17 Yet it also extends the regulatory definition in ways
that some may criticize. In particular, H.R. 5088 would include in the definition of “waters of the
United States” “all ... international waters, including ... international wetlands,” which are not
included in the Corps-EPA regulations. Including “international waters” would seemingly extend
the reach of the CWA beyond the traditional boundaries of national jurisdiction18 and could lead
to disputes about whether particular international waters and wetlands are or should be regulated
by the act. In another change from the regulatory definition, H.R. 5088 would include in the term
“waters of the United States” waters whose use, degradation, or destruction does or would affect
“the obligations of the United States under a treaty, or the territory or other property belonging to
the United States.”
One particular problem that both bills seek to remedy centers on the Court’s discussion of
“navigable waters.” Proponents argue that the bills would restore the original intent of Congress
when it enacted the Clean Water Act, which the Court has misread, they contend. The conference
report accompanying enactment of the CWA in 1972 contains this oft-quoted statement:
The conferees fully intend that the term “navigable waters” be given the broadest possible
constitutional interpretation unencumbered by agency determinations which have been made
or may be made for administrative purposes.19
For many supporters of S. 787 and H.R. 5088, the core problem resulting from the Supreme
Court’s two rulings is the Court’s discounting of the Corps’ and EPA’s broad interpretation of the
word “navigable” in the statute. In SWANCC, the Court said, “The term ‘navigable’ in the statute
has at least the import of showing us what Congress had in mind as its authority for enacting the
CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which
could reasonably be so made.”20 Further, the Scalia plurality opinion in Rapanos took a narrow
view of jurisdiction, limiting the CWA’s coverage to “those relatively permanent, standing or
continuously flowing bodies of water: and “only those wetlands with a continuous surface
connection to [other regulated wetlands.]”21 Environmentalists say that this would cut off
jurisdiction for numerous waters and wetlands that may not be continuously, hydrologically
connected to nearby waters and would put many upper-reach tributaries at risk of losing federal
protection from pollution and destruction. In response, the current legislation is intended to
clarify that Congress’ primary concern in 1972 was to protect and broadly conserve waters from
pollution. By removing the word “navigable” entirely from the statute, supporters say, the bills

17 See, for example, H.R. 2421 in the 110th Congress.
18 The current CWA defines “navigable waters” to mean “the waters of the United States, including the territorial seas.”
The term “territorial seas” is defined in the act as extending a distance of 3 miles seaward from the baseline; the
baseline generally means the land or shore.
19 S. Rept. 92-1236, at 144 (1972) (emphasis added).
20 531 U.S. at 172.
21 547 U.S. at 732-733.
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intend to make clear Congress’ original intent, while also following long-standing interpretation
of the Corps and EPA.
To supporters of the legislation, removing the word “navigable” is central to restoring the
authority of the Clean Water Act. But retaining “navigable” is equally important to those who
oppose the legislation. Critics contend that “navigability” is a term that has well recognized
meaning. Without it, the scope of the law and federal jurisdiction would be overly broad, in their
view, thus raising serious federalism issues, as a broadened CWA would conflict with the primary
responsibility of states to manage and regulate water resources, including with regard to water
allocation. The critics are not satisfied that the finding in section 2(5) of S. 787, saying that
Congress supports the policy in CWA section 101(g) regarding state authority over water rights
and water allocation, addresses this concern. H.R. 5088 does not include a similar finding.
Critics further contend that, by following the Corps’ and EPA’s long-standing interpretation, the
legislation fails to do what its supporters assert: rather than clarifying congressional intent, it
would expansively interpret which waters are jurisdictional under the CWA. Both S. 787 and H.R.
5088 would codify the regulatory encroachment that had developed in the years before the
SWANCC ruling and that the Supreme Court sought to reverse, they say.
Many environmentalists and other supporters of S. 787 and H.R. 5088 also are concerned that the
Court’s SWANCC and Rapanos rulings, while decided on statutory grounds, raised related
questions about the outer limits of Congress’ power to regulate waters with little or no connection
to traditional navigable waters under the Commerce Clause of the Constitution.22 In particular, in
the SWANCC ruling, the majority opinion stated: “Where an administrative interpretation of a
statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress
intended that result.”23 In response, some commentators have argued that if Congress were to
enact legislation to reverse the two rulings, it should definitively protect the nation’s waters by
explicitly stating the constitutional basis for the act’s jurisdiction. Otherwise, they argue, future
courts could build on past rulings to further challenge and limit Congress’ authority in this area
under the Constitution. One noted, “if Congress amends the CWA, it should include a clear
jurisdictional element, even if that provision states only that the Act extends to the limits of, but
not beyond, Congress’ Commerce Clause power.”24 As described above, section 7 of S. 787 as
approved by the committee includes a Rule of Construction provision stating that the term
“waters of the United States” shall be construed consistently with “the legislative authority of
Congress under the Constitution.”25 H.R. 5088 addresses this concern in section 2(3), stating that
one of the purposes of the legislation is to define the term “waters of the United States” and to
protect such waters, as authorized by provisions of the Constitution, including the Commerce
Clause. Further, the definition in H.R. 5088 also would apply to waters whose use, degradation,
or destruction does or would affect U.S. treaty obligations (section 2 of article II) or U.S. territory
or property (section 3 of article IV).

22 U.S. Const. Art. I, § 8, cl. 3.
23 531 U.S. at 172.
24 Robin Kundis Craig, The Clean Water Act and the Constitution, Legal Structure and the Public’s Right to a Clean
and Healthy Environment, 2nd ed. (Environmental Law Institute, 2009), p. 146.
25 S. 787 as introduced included language stating that the bill’s definition of “waters of the United States” would apply
“to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of
Congress under the Constitution.” The committee-approved bill does not include this precise language.
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However, legislative language addressing Congress’s constitutional authority to regulate waters
raises strong objections from critics who say that the language, together with eliminating
“navigability” from the act, would effectively expand the law’s reach, not simply clarify original
congressional intent. Critics of the current legislation acknowledge that in the CWA Congress did
broaden the federal regulatory authority over the nation’s waters, but they contend that Congress
intended to exercise its commerce power over navigation, and not its power over all things
affecting interstate commerce. In response, supporters of S. 787, who dispute the critics’ narrow
interpretation of the CWA’s legislative history, point to another Rule of Construction provision in
section 7 of that bill, which would limit the term “waters of the United States” to the scope of
federal jurisdiction under the CWA as interpreted and applied by EPA and the Corps prior to
January 9, 2001 (the day of the SWANCC ruling). Likewise, section 3(12) of H.R. 5088 states that
the legislation would not affect the authority of the Corps or EPA under the provisions of the
CWA as interpreted or applied by those agencies as of January 8, 2001 (the day before the
SWANCC ruling). This point does not satisfy critics who are concerned that in the past the reach
of the CWA has increased through “regulatory creep,” and that this could well occur again in the
future.
Concluding Thoughts
The legislation approved by the Senate Environment and Public Works Committee in June 2009
was a modified version of the bill as introduced by Senator Feingold. During markup, the
committee adopted an amendment co-sponsored by Senators Baucus, Klobuchar, and Boxer,
while it rejected several amendments offered by Senators Barrasso and Vitter that would have
limited the bill’s application by, for example, striking some terms in the substitute amendment’s
definition of “waters of the United States” (e.g., prairie potholes, mudflats, wet meadows, and
natural ponds) and exempting livestock production and agricultural cropping practices from CWA
permitting requirements.
Both before and after Senate markup, press accounts reported discussions about a number of
legislative alternatives intended to, on the one hand, include additional permit exemptions sought
by several industry groups, or, on the other hand, broaden bill language to more clearly assert
constitutional authority to protect U.S. waters. Some of the requested exemptions were adopted
(for example, for prior converted cropland), but others were not. The broadest possible language
regarding constitutional authority, sought by many environmental groups, was not included in the
bill as approved. Since the committee’s action, reports have indicated that there continues to be
great interest among both supporters and opponents in further changes to the bill.
When he introduced H.R. 5088, Representative Oberstar said that the House Transportation and
Infrastructure Committee would not hold hearings on the bill, because it held three days of
hearings on similar legislation in the 110th Congress. The current bill reflects testimony at those
hearings and subsequent comments, he said. No specific schedule for action on the bill was
announced.
The Administration has not taken an official position on the pending legislation, although, as
noted above, EPA, the Corps, and other agencies joined in a May 2009 letter expressing support
for legislative clarification of issues raised by the two Supreme Court rulings.
In light of the widely differing views of proponents and opponents, future prospects for either bill
are uncertain, although in light of the Senate committee’s action on S. 787, they appear to be
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Legislative Approaches to Defining “Waters of the United States”

better in the 111th Congress than ever before. One difficulty of legislating changes to the CWA in
order to protect wetlands and other U.S. waters results from the fact that the complex scientific
questions about such areas are not easily amenable to precise resolution in law.26 The debate over
revising the act highlights the challenges of using the law to do so.
The legal and policy questions associated with the SWANCC and Rapanos cases—concerning the
outer geographic limit of CWA jurisdiction and the consequences of restricting that scope—have
challenged regulators, landowners and developers, policymakers, and courts for more than 35
years. Ultimately, if Congress were to enact one of the current proposals or an alternative, the
implications of defining “waters of the United States” and making other statutory changes
proposed in the legislation would depend on several factors: the new statutory language itself,
accompanying legislative history, new regulations that the Corps and EPA might promulgate to
implement the legislation, and interpretive case law resulting from likely future legal challenge.

26 For more information, see CRS Report RL33483, Wetlands: An Overview of Issues, by Claudia Copeland.
Congressional Research Service
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Appendix. Regulatory and Proposed Statutory Definitions of “Waters of the
United States”
Table A-1. Definitions of “Waters of the United States”
(Underlined text in the legislation shown in the table also appears in U.S. Army Corps of Engineers and EPA regulations)
Current Corps/EPA Regulations
America’s Commitment to Clean Water Act—
Clean Water Restoration Act—111th Congress
(33 CFR § 328.3 and 40 CFR § 122.2)
111th Congress (H.R. 5088 as introduced)
(S. 787 as approved by Senate EPW June 2009)
PART 328_DEFINITION OF WATERS OF THE
Section 502 of the Federal Water Pollution Control Act
Section 502 of the Federal Water Pollution Control Act
UNITED STATES—Table of Contents
(33 U.S.C. 1362) is amended—
(33 U.S.C. 1362) is amended—
Sec. 328.3 Definitions.
(2) by adding at the end the following:
(3) by adding at the end the following:
For the purpose of this regulation these terms are `(26) WATERS OF THE UNITED STATES-
`(25) WATERS OF THE UNITED STATES- (A) In
defined as follows:
General—The term `waters of the United States' means
(A) In General—The term `waters of the United States’
al waters subject to the ebb and flow of the tide, the
(a) The term waters of the United States means
includes—
territorial seas, and al interstate and intrastate waters,
(1) All waters which are currently used, or were
(i) all waters that are currently used, were used in the
including lakes, rivers, streams (including intermittent
used in the past, or may be susceptible to use in
past, or may be susceptible to use in interstate or foreign
streams), mudflats, sandflats, wetlands, sloughs, prairie
interstate or foreign commerce, including all waters
commerce, including al waters that are subject to the ebb
potholes, wet meadows, playa lakes, and natural ponds, all
which are subject to the ebb and flow of the tide;
and flow of the tide;
tributaries of any of the above waters, and all
impoundments of the foregoing.
(2) Al interstate waters including interstate
(ii) all interstate and international waters, including
wetlands;
interstate and international wetlands;

(3) Al other waters such as intrastate lakes,
(iii) all other waters, including intrastate lakes, rivers,
rivers, streams (including intermittent streams),
streams (including intermittent streams), mudflats,
mudflats, sandflats, wetlands, sloughs, prairie
sandflats, wetlands, sloughs, prairie potholes, wet
potholes, wet meadows, playa lakes, or natural
meadows, playa lakes, or natural ponds, the use,
ponds, the use, degradation or destruction of which
degradation, or destruction of which does or would affect
could affect interstate or foreign commerce
interstate or foreign commerce, the obligations of the
including any such waters:
United States under a treaty, or the territory or other
property belonging to the United States;
(i) Which are or could be used by interstate or
foreign travelers for recreational or other purposes;
(iv) all impoundments of waters otherwise defined as
or
waters of the United States under this paragraph;
(ii) From which fish or shellfish are or could be
(v) tributaries of waters identified in clauses (i) through
taken and sold in interstate or foreign commerce; or (iv);
(iii) Which are used or could be used for
(vi) the territorial seas; and
industrial purpose by industries in interstate
(vii) waters, including wetlands, adjacent to waters
CRS-11

Current Corps/EPA Regulations
America’s Commitment to Clean Water Act—
Clean Water Restoration Act—111th Congress
(33 CFR § 328.3 and 40 CFR § 122.2)
111th Congress (H.R. 5088 as introduced)
(S. 787 as approved by Senate EPW June 2009)
commerce;
identified in clauses (i) through (vi).
(4) All impoundments of waters otherwise
defined as waters of the United States under the
definition;
(5) Tributaries of waters identified in paragraphs
(a) (1) through (4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than
waters that are themselves wetlands) identified in
paragraphs (a) (1) through (6) of this section.
(8) Waters of the United States do not include
(B) Exclusions.—The term ‘waters of the United States’
(B) Exclusions—(i) PRIOR CONVERTED CROPLAND.—
prior converted cropland. Notwithstanding the
does not include—
Waters of the United States do not include prior
determination of an area's status as prior converted
converted cropland. Notwithstanding the determination of
cropland by any other Federal agency, for the
(i) waters that are al or part of a waste treatment
an area’s status as prior converted cropland by any other
purposes of the Clean Water Act, the final authority
system, including treatment ponds or lagoons designed to
Federal agency, for the purposes of this Act, the final
regarding Clean Water Act jurisdiction remains with
meet the requirements of this Act; or
authority regarding jurisdiction under this Act remains
EPA. Waste treatment systems, including treatment
(ii) prior converted cropland, except that,
with the Environmental Protection Agency.
ponds or lagoons designed to meet the
notwithstanding the determination of an area’s status as
requirements of CWA (other than cooling ponds as
prior converted cropland by the Secretary of Agriculture,
defined in 40CFR 423.11(m) which also meet the
for the purposes of this Act, the final authority regarding
criteria of this definition) are not waters of the
jurisdiction under this Act remains with the Administrator
United States.
Note: A regulatory definition of “waste treatment
‘(27) Waste Treatment System.—
(ii) WASTE TREATMENT SYSTEMS.—Waste treatment
system” is found in EPA regulations, as follows:
systems, including treatment ponds or lagoons designed to
(A) In General.—The term ‘waste treatment system’
meet the requirements of this Act (or other cooling ponds
“Complete waste treatment system. A complete
means a confined and discrete system or structure that is
which also meet the criteria of this definition) are not
waste treatment system consists of all the treatment specifically designed and engineered to meet the
waters of the United States. This exclusion applies only to
works necessary to meet the requirements of title III requirements of this Act and that is determined by the
manmade bodies of water which neither were originally
of the Act, involved in: (a) The transport of waste
Administrator to be documented by the applicable
created in waters of the United States (such as disposal
waters from individual homes or buildings to a plant
permitting authority under section 402 or 404.
areas in wetlands) nor resulted from the impoundment of
or facility where treatment of the waste water is
waters of the United States.’
accomplished; (b) the treatment of the waste waters
(B) Special Rule.—A system or structure may not be
to remove pol utants; and (c) the ultimate disposal,
documented as a waste treatment system and the
including recycling or reuse, of the treated waste
Administrator may not make a determination under
waters and residues which result from the treatment subparagraph (A) if, after the date of enactment of this
process. One complete waste treatment system
paragraph, such system or structure is created in waters
would, normal y, include one treatment plant or
of the United States or results from the impoundment of
facility, but also includes two or more connected or
waters of the United States.
CRS-12

Legislative Approaches to Defining “Waters of the United States”

Author Contact Information

Claudia Copeland

Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227

Congressional Research Service
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