EPA Waters of the United States Rule –

The Congressional Acts giving the Environmental Protection Agency (EPA) and the US Army Corps of Engineers (COE) authority to regulate pollution along coastlines and interstate waters are the The Rivers and Harbors Appropriations Act of 1899 and the Federal Water Pollution Control Act, better known as the Clean Water Act (CWA) of 1972.  To differentiate Federal, State and local jurisdiction over a given river, stream or tributary, the US Congress, Federal Agencies or the Courts have traditionally relied upon the definition of “Navigable Waterway” – a non-perfect definition that has roots in the The Rivers and Harbors Act.

The Navigable-in-Fact definition has a long history in practice, case law and Federal regulatory guidance, dating back to the early 1800s and the English common law system.  Of the stream of US Supreme Court court opinions surrounding definition of Navigable Waterways, the 1870 decision The Daniel Ball, 77 US 557  provides the best guidance and the most pragmatic approach – that is, if a top-down, centralized definition is considered necessary.  For its part and over time, the Daniel-Ball case has proven to be an appropriate, resilient, and implementable way of branding Navigable Waterways, and its use has a longevity in EPA and COE Practice.

Beginning with its 1985 opinion in United States v. Riverside Bayview Homes [474 US121], the US Supreme Court veered completely from the Congressional intent of the Rivers and Harbors and Clean-Water mandates, getting mired in a technical swamp of groundwater connectivity.  Until Bayview, the application of both Acts had been understood as applying only to select larger rivers and streams – those truly navigable and having import for interstate commerce.

The jurisdiction for all remaining surface waters was left to the States, local governments and private-property owners.

More importantly, the Bayview opinion crossed a technical bright-line, muddling the sole applicability of the Navigable Waterways definition to surface waters and ushering in – for purposes of federal oversight – adjacent wetlands.  This error, in turn, opened the door for review of the Interstate-Commerce and Migratory-Bird issues of SWANCC v. USACE [531 US159], where the Court somehow correctly concluded non-navigable, “isolated” intrastate waters to not be subject to CWA jurisdiction solely on the basis of supporting migratory birds.

Having brought wetlands in through Bayview and groundwater connectivity by SWANCC, the Supremes set the stage for Rapanos v. United States [547 US715] where they conjured the definition of “Significant Nexus” to navigable waterways. The “Significant Nexus” concept is so vague, arbitrary and illusive, EPA and Army Corps of Engineers now have virtually no technical restraints – nor the public recourse – as to what to constitutes a Jurisdictional Determination for purposes of Regulation.

By 2010, in Duarte v. Corps of Engineers, COE was taking full advantage of its new, Court-granted authority by taking private “wetland” farming properties through Administrative Cease-and-Desist orders;  by 2014, in US Army Corps of Engineers v. Hawkes, the Judiciary and US Army Corps of Engineers had meandered so far from the scope of Rivers and Harbors and CWA mandates as to even entertain questions of whether private property owners have any due-process right to challenge Wetland Determinations.

In simple terms the United States Judiciary is entertaining the question of whether owners of private lands and natural resources have due process to even bring a court challenge whatsoever.

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