Public outcry over dirty rivers spurred Congress to pass the Clean Water Act in 1972. The Act established the basic structure for regulating discharges of pollutants into “waters of the United States” (WOTUS). It gave the EPA authority to implement pollution control programs such as setting wastewater standards for industry and made it unlawful to discharge any pollutant from a “point source” into waters of the United States. The law also recognized the need to address the critical problems posed by nonpoint source pollution.[1,2]
U.S. EPA (2022) History of the Clean Water Act. https://www.epa.gov/laws-regulations/history-clean-water-act
The Clean Water Act, 33 U.S.C. § 1251 et seq.
The Clean Water Act (CWA) defines “point source” primarily as a type of “conveyance,” such as a pipe, ditch, channel, or conduit. While commonly understood as a factory or sewage treatment plant that discharges pollutants into waterways, the statutory definition explicitly refers to one industrial category by name – “concentrated animal feeding operation” or CAFO. Most other agricultural pollution sources are deemed to be nonpoint sources.[1]
The Clean Water Act, Definitions 33 U.S.C. § 1362(14) [“The term “point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.”]
The Congressional declaration made it a “national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” An interim goal to be achieved by July 1, 1983, was to provide better water quality for the protection and propagation of fish, shellfish, and wildlife as well as for recreation in and on the water. The Act also made it national policy that programs for the control of pollution be developed and implemented “in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution.”[1]
The Clean Water Act, 33 U.S.C. § 1251(a) – Congressional declaration of goals and policy
The definition of “waters of the United States” (WOTUS) is a contentious issue and has undergone changes depending on the political leanings of the presidential administration and the makeup of the Supreme Court.
Under regulations enacted early in 2023, the EPA defined WOTUS as including traditional navigable waters, the territorial seas, and interstate waters, all of which are encompassed in the term primary waters. In addition, the definition included lakes, ponds, streams, and wetlands if they met one of two tests:
a) “relatively permanent standard” – waters that are relatively permanent, standing or continuously flowing waters connected (or with a continuous surface connection) to the primary waters.
b) “significant nexus standard” – waters that, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters.[1]
But on May 25, 2023, in Sackett v EPA, the U.S. Supreme Court issued a decision that sharply restricts the definition of WOTUS, thereby substantially limiting the Clean Water Act’s reach.
The Court ruled that protection under the CWA would apply to wetlands only if they are “as a practical matter indistinguishable from waters of the United States.”[2] This has the effect of making a “continuous surface connection” the only applicable test.[3]
Four justices took issue with the Sackett majority, arguing that the new test would leave “some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”[4]
U.S. EPA & Dept of the Army, Corps of Engineers (2023), Revised Definition of “Waters of the United States,” 88 Fed. Reg 3004, 3066. https://www.epa.gov/system/files/documents/2023-01/Revised%20Definition%20of%20Waters%20of%20the%20United%20States%20FRN%20January%202023.pdf
Sackett v. Environmental Protection Agency (May 25, 2023), Opinion of the Court, p. 22. https://www.epa.gov/system/files/documents/2023-05/Sackett%20Opinion.pdf
Harvard Law Review (November 2023) Sackett v. EPA, 137 Harv. L. Rev 390.
Sackett v. EPA, Kavanaugh, J., concurring in judgment, p. 2. [Wetlands are crucial ecosystems for mitigating flood waters.]
The Court’s decision means that many wetlands, including floodplain wetlands cut off from rivers by levees and berms, as well as many prairie wetlands, will no longer be covered by the Clean Water Act.
In addition, with the new test in place for wetlands, the status of intermittent streams and other waters that are tributaries of traditionally navigable waters remains unclear. The Court’s decision “spoke only directly to wetlands, while suggesting a very narrow view of the protection of other waters.“[1] This leaves decisions up in the air about how to deal with “levees, seasonally flooded wetlands, and many other bodies of water with substantial hydrological connections to the nation’s waters but without continuous surface connection.”[2]
The EPA recognizes the importance of wetlands, stating, “wetlands are among the most productive ecosystems in the world, comparable to rain forests and coral reefs.”[3] And environmental organizations believe the Sackett decision dramatically weakens the ability of the Clean Water Act to protect all waters. “As almost any water expert would tell you, Alito’s opinion has no basis in science. Water flows in all sorts of ways: aboveground; belowground; rapidly, down rivers and streams; and also slowly—through the cleansing filters of the reeds, soils, and grasses that make up a wetland.”[4]
It will now be up to the states to independently impose regulatory requirements.[5]
James M. McElfish (May 26, 2023) What Comes Next for Clean Water? Six Consequences of Sackett v. EPA, Environmental Law Institute. https://www.eli.org/vibrant-environment-blog/what-comes-next-clean-water-six-consequences-sackett-v-epa
James M. McElfish (May 26, 2023).
U.S. EPA (March 22, 2023) Why are Wetlands Important? https://www.epa.gov/wetlands/why-are-wetlands-important#
Jeff Turrentine (June 5, 2023) What the Supreme Court’s Sackett v. EPA Ruling Means for Wetlands and Other Waterways, National Resources Defense Council. https://www.nrdc.org/stories/what-you-need-know-about-sackett-v-epa
James M. McElfish (May 26, 2023) What Comes Next for Clean Water? Six Consequences of Sackett v. EPA.
Perhaps in some very limited cases, though probably not from nonpoint sources and almost certainly not for agricultural runoff.
The EPA and the Corp of Engineers take the position that groundwater (water that exists underground in saturated zones beneath the land surface) is not within its jurisdiction as “waters of the United States.”[1] And in County of Maui, Hawaii v. Hawaii Wildlife Fund, the Supreme Court stated that, “Congress was fully aware of the need to address groundwater pollution, but it satisfied that need through a variety of state-specific controls.”[2]
The Court also found that a permit is required “when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means,” a test the Court refers to as a “functional equivalent.”[3] However, the case in County of Maui dealt with sewage from a treatment plant a half mile from the ocean. And the Court suggested that time, distance, and how the pollutant was diluted were important factors to consider, making it very unlikely that the “functional equivalent” test would be successfully applied to agricultural runoff.
The exclusion of groundwater from federal oversight becomes crucial in any attempt to deal with water pollution from animal agriculture.[4]
85 Fed. Reg. 22250, 22278 (2020) The Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States’’ [“The agencies have long interpreted the CWA as not authorizing jurisdiction over groundwater and have historically excluded groundwater from the definition of ‘‘waters of the United States.’”]
County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020) at p. 8. https://www.supremecourt.gov/opinions/19pdf/18-260_jifl.pdf
County of Maui, Hawaii v. Hawaii Wildlife Fund at p. 15.
See, Animal Ag Contributions to Water Pollution
Any negligent violation of the Clean Water Act, such as discharging water pollution without a permit or exceeding pollution levels authorized by an existing permit, gives rise to a potential penalty of up to $50,000 per violation, per day. A knowing or intentional violation of the Clean Water Act is a crime, carrying with it a possible sentence of up to 3 years in federal prison, and up to 6 years for a repeat conviction.[1] The Clean Water Act also allows private citizens affected by point-source water pollution to sue polluters directly to enforce the law in an action known as a “citizen suit.”[2]
Clean Water Act, 33 USC § 1319, Enforcement
Clean Water Act, 33 USC § 1365, Citizen Suits