{
  "id": "R44585",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R44585",
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  "source": "EveryCRSReport.com",
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      "source": "EveryCRSReport.com",
      "id": 593704,
      "date": "2019-03-05",
      "retrieved": "2019-12-20T19:49:15.277627",
      "title": "Evolution of the Meaning of \u201cWaters of the United States\u201d in the Clean Water Act",
      "summary": "For more than forty-five years, all three branches of government have struggled with how to interpret the meaning of \u201cwaters of the United States\u201d in the Clean Water Act. In a shift from early water pollution legislation, the 1972 amendments to the Federal Water Pollution Control Act, which came to be known as the Clean Water Act, eliminated the requirement that federally regulated waters must be capable of being used by vessels in interstate commerce. Rather than use traditional navigability tests, the 1972 amendments redefined \u201cnavigable waters\u201d for purposes of the Clean Water Act\u2019s jurisdiction to include \u201cthe waters of the United States, including the territorial seas.\u201d Disputes over the proper meaning of that phrase have been ongoing since that change.\nFederal authority to regulate waters within the United States primarily derives from the Commerce Clause, and accordingly, federal laws and regulations concerning waters of the United States cannot cover matters which exceed that constitutional source of authority. During the first two decades after the passage of the Clean Water Act, courts generally interpreted the act as having a wide jurisdictional reach. In recent decades, however, the Supreme Court has emphasized that \u201cthe grant of authority to Congress under the Commerce Clause, though broad, is not unlimited.\u201d This modern Commerce Clause jurisprudence has informed federal courts\u2019 approach to interpreting which \u201cwaters\u201d are subject to the Clean Water Act. At the same time, the Supreme Court has not always provided clear rules for determining whether a particular waterbody is a water of the United States. In its most recent case on the issue, Rapanos v. United States, the High Court issued a fractured 4-1-4 decision with no majority opinion providing a rationale for how to evaluate jurisdictional disputes. \nSome courts and commentators disagree on how the scope of federal jurisdictional waters changed over time as a result of interpretative approaches taken by the agencies responsible for administering the Clean Water Act\u2014the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps). This debate resurfaced during the Obama Administration when the Corps and EPA issued a rule, known as the Clean Water Rule, which substantially redefined \u201cwaters of the United States\u201d in the agencies\u2019 regulations for the first time in more than two decades. While some argued that the Clean Water Rule constituted a large-scale expansion of federal jurisdiction, others asserted that the agencies construed the term in a narrower fashion than in prior regulations. \nA vocal critic of the Clean Water Rule, President Trump shifted the executive branch\u2019s policy toward the meaning of \u201cwaters of the United States.\u201d In February 2017, President Trump issued an executive order directing EPA and the Corps to review and revise or rescind the Clean Water Rule. The agencies currently are in the process of carrying out the executive order, and they unveiled proposed regulations redefining \u201cwaters of the United States\u201d in December 2018. As in nearly all prior attempts to define this phrase, observers disagree on whether the latest proposed definition correctly calibrates the scope of federal jurisdiction to regulate water pollution.",
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      "typeId": "REPORTS",
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    },
    {
      "source": "EveryCRSReport.com",
      "id": 454992,
      "date": "2016-08-08",
      "retrieved": "2016-11-28T21:48:33.789247",
      "title": "Evolution of the Meaning of \u201cWaters of the United States\u201d in the Clean Water Act",
      "summary": "The scope of waters that are properly the subject of federal water pollution legislation has been the subject of long-standing consideration by all three branches of the federal government, particularly in the aftermath of the 1972 amendments to the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act. In a shift from early water pollution legislation, those amendments eliminated the requirement that the federally regulated waters\u2014known as jurisdictional waters\u2014must be navigable in the traditional sense, meaning that they are capable of being used by vessels in interstate commerce. Rather than use classical tests of navigability, the amendments redefined \u201cnavigable waters\u201d for purposes of the Clean Water Act\u2019s jurisdiction to include \u201cthe waters of the United States, including the territorial seas.\u201d Disputes over the proper meaning of that phrase have been ongoing.\nSome courts and commentators also disagree on how the scope of federal jurisdictional waters changed over time as a result of interpretative approaches taken by the federal agencies responsible for administering the Clean Water Act\u2014the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps). While some believe EPA and the Corps consistently expanded the meaning of \u201cwaters of the United States,\u201d others contend that, in recent years, the agencies have construed the term in a narrower fashion than permitted under the Clean Water Act. In 2015, the Corps and EPA issued a new rule, known as the Clean Water Rule, that substantially redefined \u201cwaters of the United States\u201d in the agencies\u2019 regulations for the first time in more than two decades. Some observers disagree on whether the Clean Water Rule constitutes an expansion of jurisdiction over waters not previously regulated. This report provides context for this debate by examining the history of major changes to the meaning of \u201cwaters of the United States\u201d as expressed in federal regulations, legislation, agency guidance, and case law.\nThe Clean Water Act uses the phrase \u201cwaters of the United States,\u201d but it does not include a statutory definition of that term. The long-standing disagreement over the meaning of that phrase has centered on the degree to which the Clean Water Act should be interpreted as covering the widest amount of \u201cwaters\u201d that could permissibly be federally regulated under the Constitution, or whether that term should be interpreted in a more limited fashion.\nFederal authority to regulate waters within the United States primarily derives from the Commerce Clause, and accordingly, federal laws and regulations concerning waters of the United States cannot cover matters which exceed that constitutional source of authority. During the first two decades after the passage of the Clean Water Act, courts generally interpreted the act as having a wide jurisdictional reach. In recent decades, however, the Supreme Court has emphasized that \u201cthe grant of authority to Congress under the Commerce Clause, though broad, is not unlimited.\u201d This modern Commerce Clause jurisprudence has informed federal courts\u2019 approach to interpreting which \u201cwaters\u201d are subject to the Clean Water Act.\nMost recently, courts have taken up legal challenges to the Clean Water Rule. On October 9, 2015, the United States Court of Appeals for the Sixth Circuit stayed its enforcement, and the House version of the FY2017 Interior-Environment appropriations bill (H.R. 5538) would block its application by prohibiting the use of appropriated funds to implement changes to the meaning of jurisdictional waters beyond those that were in effect on October 1, 2012.",
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  ],
  "topics": [
    "Constitutional Questions"
  ]
}