Turtles All the Way Down: A Clearer Understanding of the Scope of Waters of the United States Based on the United States Supreme Court Decisions

Abstract

The meaning of “waters of the United States” under the Clean Water Act has been debated in Congress, federal agencies and courtrooms across the country for almost 50 years. Despite the longstanding attention to the term, most consider the term even more unclear today than in 1972 when the Clean Water Act was adopted. However, a methodical examination of the statutory and regulatory history and the United States Supreme Court decisions on the issue reveal more consensus than previously understood. In addition, this focused examination shows that the debate centers on one problem that the arguments rarely acknowledge: wetlands adjacent to a “tributary”. Specifically, litigants and agencies attempt to show that the wetland at issue lies close to some type of water, whether a ditch, drain, or creek. If that water eventually reaches a navigable water, no matter how indirect or attenuated the path, the wetland is arguably jurisdictional. This article distills the issues and clarifies the agreements and controversies surrounding “waters of the United States”.

Keywords: SCOTUS, United States Supreme Court, Clean Water Act, "waters of the United States", wetlands, tributary, navigable water, administrative law, water law, environmental law

JEL Classification: K00, K10, K23, K32