The Waters of the United States

• Introduction
• Chapter 1 The Rivers and Harbors Act of 1899: The Origins of Navigability
• Chapter 2 Burning Rivers and the Awakening: The Birth of the 1972 Clean Water Act
• Chapter 3 Defining "Navigable Waters": The Ambiguity of Statutory Drafting
• Chapter 4 The Corps vs. The EPA: Early Inter-Agency Disputes Over Jurisdiction
• Chapter 5 NRDC v. Callaway: The First Major Judicial Expansion
• Chapter 6 The 1977 Amendments: Congress Enters the Fray
• Chapter 7 Wetlands Under Siege: Development and the Ecological Awakening
• Chapter 8 Riverside Bayview Homes: The Supreme Court Affirms Adjacent Wetlands
• Chapter 9 The Migratory Bird Rule: Stretching the Commerce Clause
• Chapter 10 Property Rights and the Sagebrush Rebellion: The Pushback Against Federal Creep
• Chapter 11 SWANCC: Severing the Isolated Ponds
• Chapter 12 The Aftermath of SWANCC: Regulatory Chaos and Shifting Policies
• Chapter 13 The Rapanos Crucible: A Divided Court and a Fragmented Doctrine
• Chapter 14 The Significant Nexus Test: Kennedy’s Enduring and Enigmatic Standard
• Chapter 15 Plurality, Dissent, and Confusion: The Lower Courts Interpret Rapanos
• Chapter 16 The Ephemeral and the Intermittent: Defining Streams in the Arid West
• Chapter 17 Agriculture at the Crossroads: Farming, Ditches, and Exemption Disputes
• Chapter 18 The 2015 Clean Water Rule: The Obama Administration's Quest for Clarity
• Chapter 19 Federalism on Trial: The States Sue the Federal Government
• Chapter 20 The Navigable Waters Protection Rule: The Trump Administration’s Retraction
• Chapter 21 The Whiplash Years: State Regulations and Administrative Pendulums
• Chapter 22 Sackett v. EPA: The Road Back to the Highest Court
• Chapter 23 The Sackett Ruling: Dismantling the Significant Nexus Test
• Chapter 24 The Redrawn Map: Vulnerable Ecosystems and Unprotected Waters
• Chapter 25 The Future of American Water: States, Science, and the Search for Permanence

In the autumn of 1972, the United States Congress enacted one of the most ambitious pieces of environmental legislation in human history. Passed over the veto of President Richard Nixon by a bipartisan coalition gripped by the visceral sight of burning industrial rivers and dying lakes, the Federal Water Pollution Control Act Amendments—known universally today as the Clean Water Act—set out an audacious objective: to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. Congress envisioned an America where every river, lake, and stream was fishable and swimmable, with the eventual elimination of all pollutant discharges into the natural world. Yet, embedded deep within the architecture of this landmark statute lay a linguistic landmine, a seemingly mundane phrase that would ignite five decades of relentless legal warfare: "the waters of the United States."

To the casual observer, defining what constitutes water within a nation’s borders might seem an exercise in simple geography. Water falls from the sky, carves channels through soil, saturates wetlands, pools in prairie potholes, flows down ephemeral arroyos in the desert Southwest, and collects in vast inland seas before journeying to the ocean. But in the halls of power, the physics of the hydrologic cycle collided head-on with the constitutional limits of the American republic. By tethering federal jurisdiction to the traditional concept of "navigable waters," Congress left the precise boundaries of federal authority undefined. What followed was a protracted, high-stakes battle over where the power of Washington ends and the autonomy of private property owners and sovereign states begins.

The Waters of the United States: The Legal Battle Over the Clean Water Act's Reach chronicles this sweeping, fifty-year struggle. It is the story of how an ambiguous statutory definition transformed into the most contested frontier in modern administrative and environmental law. For decades, the frontline of American governance has not merely been drawn along ideological lines in Congress, but across saturated peat moss in Michigan, roadside ditches in California, seasonal washes in Arizona, and residential building lots in Idaho. Every acre of marsh and every dry riverbed became a potential jurisdictional battleground, pitting environmentalists and federal regulators against farmers, homebuilders, energy developers, and property rights advocates.

At the core of this conflict is a fundamental tension between ecological reality and legal formalism. Scientifically, all water is connected; pollution introduced into a non-navigable tributary or an isolated wetland inevitably travels downstream to poison municipal drinking supplies and commercial fisheries. Legally, however, the federal government’s power under the United States Constitution’s Commerce Clause is not boundless. As the Environmental Protection Agency and the U.S. Army Corps of Engineers sought to expand their oversight to protect complex ecosystems, their regulatory reach triggered intense constitutional challenges. The dispute journeyed through conflicting presidential administrations, shifting agency rulemakings, and bitterly divided federal courtrooms, culminating in a series of fractured, paradigm-shifting Supreme Court rulings that redrew the map of federal authority.

This book provides a comprehensive narrative of that epic legal saga. By examining the origins of federal water governance, the dramatic courtroom confrontations, the intellectual clash between rival judicial philosophies, and the devastating administrative whiplash endured by stakeholders across the country, these pages demystify the complex doctrine known colloquially as "WOTUS." Readers will gain a clear-eyed understanding of how technical legal interpretations directly dictate the health of American ecosystems, the viability of agricultural enterprises, and the balance of power between the states and the federal government.

We stand today at a transformative crossroads in the history of American conservation. With the Supreme Court’s decisive repudiation of long-standing regulatory tests and the subsequent rollback of federal protections for millions of acres of wetlands and intermittent streams, the nation faces an unprecedented regulatory vacuum. The burden of water quality management has shifted dramatically back to the states, raising urgent questions about whether a patchwork of local laws can adequately safeguard shared hydrologic systems. To comprehend the uncertain future of our most vital natural resource, one must first understand the intricate legal wars of its past. This is the story of how the law attempted to master the water, and how the water continually defied the law.

Long before the first molecule of synthetic pesticide slipped into an American river, and decades before the term "ecosystem" entered the popular lexicon, the federal government was already deeply entangled in the management of the nation’s waterways. This early involvement, however, had nothing to do with ecological preservation, public health, or biological integrity. It was driven by a far more pragmatic, commercial, and muscular concern: the physical movement of goods. In the nineteenth century, water was the lifeblood of American expansion and commerce. The rivers, lakes, and coastal harbors of the young republic were the interstate highways of their day. If those highways became blocked, the economic heart of the nation would stop beating.

To understand how a modern real estate developer in Idaho could find themselves facing federal prison time over a dry patch of gravel, one must travel back to an era of paddle-wheel steamers, timber rafts, and coal barges. The legal architecture that would eventually support the Clean Water Act was laid down stone by stone, statute by statute, during a time when the federal government's primary environmental objective was not to keep the water clean, but to keep it moving. At the center of this early legal landscape stood a single, deceptively simple concept that would dominate American water law for more than a century: navigability.

Under the United States Constitution, the federal government is a entity of limited, enumerated powers. It does not possess a general "police power" to regulate health, safety, and the environment; those responsibilities were largely left to the individual states. Instead, the founders granted Congress the authority "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This brief passage, known as the Commerce Clause, became the constitutional hook upon which almost all modern federal regulation hangs. In the early decades of the republic, the Supreme Court made it clear that "commerce" was not merely the buying and selling of goods, but also the transportation of those goods. Because water was the primary medium of transportation, federal power over interstate commerce naturally translated into federal power over the watercourses that carried that commerce.

This principle was famously cemented in the landmark 1824 Supreme Court case Gibbons v. Ogden. The dispute arose from a steamboat monopoly granted by the State of New York, which sought to exclude out-of-state operators from its waters. Chief Justice John Marshall, writing for a unanimous Court, blew the monopoly apart by ruling that the federal power to regulate interstate commerce necessarily included the power to regulate navigation. Marshall observed that "the power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with 'commerce with foreign nations, or among the several States.'" With this single stroke, the Court established that the federal government held supreme authority over the navigable channels of the nation, overriding any conflicting state laws or monopolies.

As the nineteenth century progressed, the industrialization of the United States accelerated at a breakneck pace. Factories bloomed along riverbanks, cities poured raw sewage into adjacent currents, and logging operations choked channels with millions of floating logs. More importantly, private companies and local governments began constructing bridges, piers, wharves, and dams with little regard for how these structures affected the passage of vessels. The nation's aquatic highways were rapidly becoming cluttered with obstacles, both physical and ecological.

By the late 1880s, the situation had grown dire. The state of Oregon, for example, had authorized the construction of a bridge over the Willamette River that threatened to block commercial shipping. When the federal government objected, the Supreme Court ruled in Willamette Iron Bridge Co. v. Hatch in 1888 that, in the absence of an explicit federal statute, there was no federal common law prohibiting obstructions in navigable waters. If Congress wanted to keep the nation’s waterways clear of physical barriers, it would have to pass a law saying so.

Congress responded to this judicial challenge with characteristic legislative incrementalism, passing preliminary measures in 1890 and 1894. But it was the Rivers and Harbors Appropriation Act of 1899 that would permanently alter the landscape of federal water regulation. Signed into law by President William McKinley in the final year of the nineteenth century, this sprawling piece of legislation was primarily designed to fund public works projects like dredging harbors and building canals. Buried within its technical provisions, however, were several regulatory sections that would quietly lay the groundwork for the environmental battles of the next century.

The most significant of these provisions was Section 10, which prohibited the creation of any obstruction to the navigable capacity of any of the waters of the United States without the authorization of Congress. It also made it unlawful to build any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, or jetty in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, unless the work had been recommended by the Chief of Engineers and authorized by the Secretary of War.

Even more consequential for the future of water quality regulation was Section 13, which would come to be known as the Refuse Act. This section declared it unlawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited, any refuse matter of any kind or description whatever—other than that flowing from streets and sewers and passing therefrom in a liquid state—into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.

To modern eyes, Section 13 looks remarkably like a primitive water pollution control law. It banned the dumping of "refuse matter of any kind" and even reached upstream to target discharges into non-navigable tributaries if that material eventually washed down into navigable waters. Yet, the historical context reveals that the primary anxiety of the 55th Congress was not chemical toxicity or public health. The concern was physical siltation. If a factory dumped tons of solid waste, sawdust, or slag into a river, that material would eventually settle to the bottom, shallowing the channel and grounding the commercial vessels that draft deep in the water. The Refuse Act was, at its core, a navigation preservation measure, designed to prevent the physical choking of commercial shipping lanes.

The enforcement of this new regulatory regime was handed to the United States Army Corps of Engineers. Established during the Revolutionary War, the Corps was the nation’s premier engineering outfit, possessing the technical expertise required to dredge channels, build levees, and evaluate the physical impacts of structures on water navigation. For the first seventy years of the twentieth century, the Corps approached its duties under the 1899 Act with the narrow, practical focus of an engineer. It issued permits based on whether a proposed project would physically interfere with boats, showing little interest in the chemical composition of the water or the ecological health of the surrounding wetlands.

This narrow focus, however, required a precise understanding of where the Corps’ authority began and ended. The 1899 Act applied to "navigable waters of the United States," but what exactly made a waterbody "navigable" in the eyes of the law? The traditional English common law definition of navigability, which the United States inherited, was tied directly to the ebb and flow of the tide. In Great Britain, an island nation with relatively short, swift rivers, virtually all significant commercial shipping occurred in waters influenced by the ocean's tides. Waters above the reach of the tide were generally considered private, and the Crown held no public trust over them.

But the geography of the North American continent quickly made the English tidal test absurd. The United States possessed vast, deep, inland river systems—like the Mississippi, the Ohio, the Missouri, and the Hudson—and colossal freshwater seas like the Great Lakes. These waters carried millions of tons of commerce annually, yet they were hundreds of miles away from the influence of any ocean tide. To apply the English rule would have stripped federal protection from the very arteries that made the nation’s internal expansion possible.

The Supreme Court formally severed American jurisprudence from the English tidal test in the 1870 case The Daniel Ball. The dispute involved a small steamer of that name which operated exclusively on the Grand River in Michigan, carrying goods between the cities of Grand Rapids and Grand Haven. The vessel's owners argued they did not need a federal license because the steamer did not travel outside the state, and the Grand River was entirely freshwater and unaffected by tides.

In a landmark opinion that remains a cornerstone of water law, Justice Stephen J. Field rejected the old English rule and established a uniquely American test for navigability:

"Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water."

The Daniel Ball test established three critical criteria that would define federal jurisdiction for generations. First, the waterbody must be "navigable in fact," meaning it can actually support transport. Second, it must be capable of being used as a "highway for commerce." Third, it must form a continuous interstate link, connecting with other waters to allow goods to travel across state lines or to foreign nations.

Four years later, in The Montello, the Supreme Court expanded this definition to clarify that the "customary modes of trade and travel" did not require the water to be passable by large, modern steamships. The case involved the Fox River in Wisconsin, which in its natural state was obstructed by rapids and shallow places, requiring early fur traders to use birch-bark canoes and small vessels. The Court ruled that the river was still navigable, noting that "the capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use."

As the twentieth century dawned, the Supreme Court continued to stretch the concept of navigability to accommodate the growing power of the federal government. In the 1921 case Economy Light & Power Co. v. United States, the Court addressed whether a dam could be constructed without a federal permit on the Des Plaines River in Illinois. The river had not been used for commercial navigation since the early nineteenth century, when the fur trade declined, and it was currently blocked by physical changes and official declarations that it was non-navigable. The Court held that once a waterbody is shown to be navigable in its natural state, it remains a navigable water of the United States forever, regardless of subsequent changes or periods of disuse. "Navigability," the Court famously declared, "is not destroyed by the state of the water being at times such that navigation is difficult or impossible, nor by the presence of sandbars or other obstructions."

An even more dramatic expansion occurred in 1940 with United States v. Appalachian Electric Power Co., often referred to as the New River case. Here, the federal government sought to prevent the construction of a hydroelectric dam on the New River in Virginia and West Virginia, arguing the river was navigable and therefore required a license from the Federal Power Commission. The utility company argued that the river's swift currents, shoals, and rapids made it completely unsuitable for commercial vessels.

The Supreme Court, however, ruled that navigability did not just mean a waterbody was navigable in its natural, "ordinary" condition. It also included waters that could be made navigable through reasonable improvements. Justice Stanley Reed, writing for the majority, observed: "A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids are required before commercial navigation may be undertaken... balance of cost and need at a time when the improvement would be useful must be appreciated." Furthermore, the Court made it clear that federal power over these waters was not limited solely to the protection of navigation itself. "In our view, it cannot properly be said that the federal power over navigation is confined to the very commercial tracts which have been moved on the physical watercourse," Reed wrote. "That authority is as broad as the needs of commerce."

By the mid-twentieth century, the legal concept of navigability had been stretched far beyond its original moorings. It now encompassed waters that were once navigable but no longer were, and waters that were not currently navigable but could be made so with the expenditure of engineering effort and capital. Yet, even with these expansions, the entire regulatory structure remained tied, however loosely, to the concept of commercial transport. The Army Corps of Engineers continued to use this navigation-based framework to police the nation’s waters, focusing its energy on keeping the channels clear for the vessels that moved the nation’s wealth.

But beneath the surface of this commerce-focused regime, a quiet ecological crisis was brewing. The very industrial activities that generated the cargo carried by these navigable waters were also poisoning the aquatic systems that sustained them. Chemical plants, paper mills, and slaughterhouses were treating the nation’s rivers as convenient, free disposal systems for toxic waste. Because these liquid wastes did not physically obstruct shipping, the Corps of Engineers rarely intervened. The Refuse Act’s exemption for material "flowing from streets and sewers and passing therefrom in a liquid state" was widely interpreted as a green light for industrial water pollution.

The disconnect between the physical reality of water pollution and the narrow, navigational focus of the law could not last forever. In the decades following World War II, the American public began to wake up to the ecological devastation surrounding them. The rivers that had served as the highways of commerce were turning into open, foul-smelling sewers.

As the environmental movement began to find its voice in the 1960s, legal scholars and activists began looking for existing tools to combat this tide of pollution. Their eyes fell upon the long-dormant provisions of the Rivers and Harbors Act of 1899, and specifically the Refuse Act. They began to ask a radical question: could a nineteenth-century statute designed to protect wooden barges from floating logs be used to prosecute twentieth-century corporations for dumping chemical waste?

This legal pivot began to manifest in the federal courts. In the 1960 case United States v. Republic Steel Corp., the federal government sued an industrial plant for discharging fine particles of flue dust into the Calumet River in Illinois, which settled to the bottom and reduced the depth of the channel. The Supreme Court ruled in favor of the government, holding that the discharge of industrial solids constituted an "obstruction" under Section 10 and fell under the ban on "refuse" in Section 13. Justice William O. Douglas, writing for the majority, urged a broad, purposive reading of the 1899 Act, stating, "We cannot read the 1899 Act in a penny-pinching way... It is a codes designed to protect the safety of navigation, and we should read it with the breadth necessary to give it full effect."

Six years later, in United States v. Standard Oil Co., the Court took an even bigger step. Standard Oil was prosecuted under the Refuse Act after a valve was accidentally left open, discharging high-grade aviation gasoline into the St. Johns River in Florida. The company argued that gasoline was a valuable commercial product, not "refuse matter" within the meaning of the statute. The Supreme Court disagreed. Justice Douglas, again writing for the Court, declared that "refuse" included all foreign substances and pollutants, regardless of their commercial value. "The word 'refuse' includes all foreign substances and pollutants apart from those 'flowing from streets and sewers and passing therefrom in a liquid state' into the watercourse," Douglas wrote. He noted that the 1899 Act was designed to prevent the "progressive pollution" of the nation's waters, signaling a profound shift in how the judiciary viewed the purpose of the statute.

Suddenly, the Rivers and Harbors Act of 1899 was no longer just an engineering manual; it was an environmental weapon. Conservation groups and enterprising federal prosecutors began using the Refuse Act to bring enforcement actions against industrial polluters across the country. In 1970, President Richard Nixon, seeking to head off more radical legislative proposals from a Democrat-controlled Congress, issued an executive order establishing the Refuse Act Permit Program. This program required any facility discharging industrial waste into navigable waters or their tributaries to obtain a permit from the Army Corps of Engineers, which would consult with the newly created Environmental Protection Agency (EPA) to assess the environmental impact of the discharges.

This administrative maneuver, however, was quickly tied up in legal knots. In the 1971 case Kalur v. Resor, a federal district court ruled that the Corps of Engineers could not issue permits under the Refuse Act without first preparing environmental impact statements for every single permit, as required by the newly enacted National Environmental Policy Act (NEPA). The ruling effectively paralyzed the permit program before it could get off the ground. The administrative machinery of the 1899 Act, designed for an era of simple physical dredging, was collapsing under the weight of modern environmental administrative law.

The crisis of the Refuse Act Permit Program made one thing abundantly clear: the nineteenth-century framework of navigability was no longer capable of managing the ecological realities of the twentieth century. The nation’s water pollution crisis could not be solved by stretching a statute designed to protect shipping lanes. The physical, chemical, and biological degradation of the aquatic environment required a comprehensive, modern legislative solution.

Yet, when Congress finally sat down to draft that solution in 1972, it did not write on a clean slate. The legacy of the Rivers and Harbors Act of 1899 and the century of jurisprudence that followed it had left an indelible mark on the American legal imagination. The concept of "navigability" was deeply woven into the constitutional fabric of federal water regulation. Even as lawmakers sought to build a revolutionary new system of environmental protection, they found themselves unable to escape the linguistic gravitational pull of the past. When they drafted the definition of what waters would be protected under the new Clean Water Act, they would once again reach for the familiar, yet fraught, terminology of "navigable waters." In doing so, they ensured that the ghosts of the nineteenth-century river barons would continue to haunt the environmental battles of the twenty-first.