1. Running head: FINAL PAPER 1
Final Paper
Dr. Maser
ESM 222
Trevor Lee
Portland State University

2. FINAL PAPER 2
An Editorial (2012) from the New York Times described how Environmental Protection
Agency proposed a badly needed policy to encourage the Army Corps of Engineers duty under
the Clean Water Act to protect all bodies of water from harmful pollution. The 1972 Clean Water
Act is to protect “the waters of the United States” from pollution and restore the damage of
natural resources, which is under pressure of court rulings and protections are at risk. The Clean
Water Restoration Act of 2009 has been weakened and misunderstood by two rulings, the first in
2001 (SWACC) and the second (Rapanos). Due to these two rulings, the CWA only protects the
“navigable” bodies of water, as many as 10,000 bodies of waters are not protected by the EPA.
All bodies of water in America is needed to be protected like rivers, lakes and estuaries, they are
all interrelated as a whole system for our future generations of healthy environment and
economy.
Background information
The Clean Water Act was weakened. The Clean Water Restoration Act was passed over
President Nixon’s veto in 1972. Its purpose is to prohibit “point and non-point” discharge into
US water bodies. It restores and maintains the chemical, biological integrity of US waters. It also
provides clean, safe drinking water, fishing, swimming and eliminates all uncontrolled
pollutants. The CWA focuses on point source pollutants, control of effluent from industries,
water qualities and standards, controlled by permits from the EPA, national pollution discharge
elimination system (NPDESC), and streams exceeding state standards (TMDL). This Act
protects all the “waters of the United States” and the law prohibits unpermitted point-source
pollution by businesses, oil spill prevention program and the impaired water cleanup program.
The federal Environmental Protection Agency (EPA) and Army Corps of engineers, regulates
and implement the law successfully until recently. The CWA covers tributaries of various water,

3. FINAL PAPER 3
wetland and intrastate waters with linkages to interstate commerce. However, in 2001 a Supreme
Court case called Solid Waste Agency of Northern Cook County v U.S. Army Corps of
Engineers-challenged that non-navigable intrastate waters are not protected by the CWA, just
because they could serve as habitat for migratory birds. The “waters of the United States” are
segregated by the CWA.
Congress created controversy. According to an article named, “Restoring America’s
Clean Water Legacy” written by the NRDC (2008), the Congress decision was a messy split. The
Court did not invalidate the existing rules, but the various opinions suggested different tests.
Justice Kennedy would require the agencies to show a physical, biological, or chemical
linkage—an important connection between a water body and an actually navigable one to protect
it. Four other justices would require most water bodies to be continuously flowing or standing,
and would require wetlands to have a continuous surface connection to such waters (NRDC,
2008). The confusion allows businesses and polluters an opportunity to pressure EPA and Army
Corps of Engineers to weaken the rules. So the agency rejected overwhelming support to keeping
the law intact and stopped applying the CWA protections to many waters, unless they have
permission from Congress. The confusion of the Supreme Court’s decisions impacted the Corps
and tried to protect the “navigable waters”, while ignoring small streams, millions of acres of
wetlands, nation’s drinking water and aquatic ecosystem.
The rational argument from the opponents stated that the water on particular properties in
disagreement do not connect with the interstate bodies of water and therefore should be
eliminated from the federal regulation of the CWA. Federal courts are struggling to determine on
how to implement the Supreme Court’s decision. Uncertain standards in different areas of the

4. FINAL PAPER 4
country and at the same time, the lower courts have various opinions and decisions on how to
determine what water bodies are protected.
Difference between “navigable” and non-“navigable” bodies of water
“Navigable waters” are bodies of water like a river, canal or lake that is deep, wide and
slow enough for a vessel/ship to pass through. Navigability depends on the context. A small river
can be navigable by a small boat, kayak, but unnavigable by a cruise ship or commerce. Water
bodies may be unnavigable due to ice, rocks, installation of locks, bridges, high water speed and
low water depth. According to US EPA (2008), on November 26, 2008, the Federal Register
published EPA’s final rule to amend the Clean Water Act which defines “navigable waters”. The
EPA announced the revisions to the definition of “navigable waters” along with an issue from
the United States District Court for the District of British Columbia. The term “navigable
waters” from the United States is described as 1) all “navigable waters of the United States, as
defined in judicial decisions prior to the passage of the 1972 Amendment of the Federal Water
Pollution Act. 2) Interstate waters, 3) intrastate waters, rivers, and streams, which are used by
travelers for recreational purposes and 4) intrastate lakes, rivers and streams where fish are taken
and sold in interstate commerce. CWA defines navigable waters.
How “navigable waters is used and separated from the CWA
Numerous federal and states define navigability for various purposes from jurisdiction to
pollution control, also from property boundaries to licensing dams. These numerous definitions
and jurisdiction statues have created law specific to the context of navigability. Navigable waters
of the United States is defined in 33 CFR 329 as waters that are subject to the flow of the tide
that are used for transportation, interstate or foreign commerce. Section 10 of the Rivers and
Harbors Act of 1899 (33 U.S.C. 403) was approved on March 3rd, 1899, which prohibits

5. FINAL PAPER 5
unauthorized obstruction of “navigable waters”. This statute requires a permit from the US Army
Corps of Engineers for any construction, excavations or discharge of waste material into water
bodies.
Impact of SWANCC of 2001 and Rapanos of 2006
These two measures weakened and misinterpreted protection of the nation’s rivers, lakes,
streams, wetlands from unregulated pollution and destructions. The EPA only protects the
“navigable” bodies of water. According to NRDC (2008), Supreme Court misinterpreted the law
and placed pollution limitations for many vital water bodies in doubt. After the decisions, the
Bush administration’s Environmental Protection Agency (EPA) and Army Corps of Engineers
(Corps) excluded numerous waters from protection and placed unnecessarily high hurdles to
protecting others. Due to uncertainty about whether the waters remained within the scope of the
Clean Water Act. On top of that, polluters in enforcement actions raised the lack of Clean Water
Act jurisdiction as an affirmative defense in 61 other cases. In sum, over 500 enforcement cases
were affected during this time period. For decades, the Clean Water Act protected the nation’s
surface water bodies from unregulated pollution and rescued them from the crisis status they
were in during the late 1960s and early 1970s. Now these vital protections are being lost. The
threat of our Nation’s waters examines case studies, and highlights the urgent needs for Congress
to restore full Clean Water Act protections to our waters.
Impact of “non-navigable waters” being unprotected from pollution
According to an article named, “Overview: Clean Water Restoration Act of 2009” by the
Clean Water Action (Schwartz, 2012, it described how the EPA estimated about a third of the
nation’s water are still unhealthy, 117 millions of American get some of the drinking water from
unprotected resources. Hundreds of Clean Water Act enforcement cases have either been

6. FINAL PAPER 6
dropped completely or made lower priorities due to concerns over the recent Supreme Court
decisions questioning whether certain rivers, streams, wetlands and other waters remain
protected from pollution by the Clean Water Act. Congress has been unwilling to clarify the
CWA. The EPA and United States Army Corps of Engineer are left to draft new rules to clarify
which water ways are protected.
Economic impacts of “navigable waters”
According to Hurst (2010), the Idaho House condemned parts of the federal Clean Water
Restoration Act. The legislation pending in Congress would have “drastic” negative effects on
the state and its economy. If the Clean Water Act was replaced by the words “navigable waters”
with the “waters of the United States”, the regulation will harm the farming industry. Water
bodies like ditches, irrigation canals and underground waters by the farmers could be subjected
to regulation by the EPA. In a letter to the Senate Environment and Public Works Chair Barbara
Boxer, the American Farm Bureau said the proposed CWA law would “extend to all water
bodies”. Agricultural operations are subjected to a civil lawsuit that is not possible. If non-
navigable waters are used, businesses and farms could be subjected to civil lawsuits from
organizations or individuals who don’t like the way the business or farm is operating. The
Heritage Foundation claimed the law could be used to stop a tremendous amount of economic
activity. According to a New York Times article called, “Oil Industry Threatens Obama Admin
Over Clean Water Act Guidance for Wetlands” by Paul Quinlan (2011), both industry and
environmentalist groups have different perspectives. Environmental groups are interested in new
water protection regulation that would protect the CWA. Industry groups want the EPA to avoid
creating regulations and begin working on the rulemaking process. The rulemaking process
involves the industry group to create a case that strengthens federal regulations in more

7. FINAL PAPER 7
economic issues. The industry groups do not want the EPA to make any regulations, which they
could undoubtedly litigate and begin on the rulemaking process. This process will create higher
costs and economic drag than benefits to the environment.
Group proposal
The CWA should use the definition of “waters of America”: based on EPA and Army
Corps of Engineering regulations. The new law should eliminate the phrase “navigable waters”
from the CWA to enforce the purpose of the law is to protect all bodies of water. The main
function is to protect the nation’s health, protect all water bodies from pollution and not just to
maintain “navigable waters” healthy, Congress should also make judgments that the law include
isolated waters, streams, headwaters, rivers, lakes and wetlands. The issue of the CWA to clarify
the “waters of the United States”. The group is interested to protect all bodies of waters from
pollution and destruction, exclude the term “navigable” bodies of water. The CWA is to keep
“the bodies of water”, streams and wetlands that affect the quality of water for drinking,
swimming, farming, industry and tourists, etc. The choice of a healthy environment and
economy is crucial to the United States. We are totally blessed with an abundance of natural
resources. The demand for water, food, energy production and manufactures, creates pollution,
contaminants and climate change. We must focus on the CWA to provide a better environment
for our future generations.
It is important to protect the well-being of our water bodies, preserve renewable and non-
renewable natural resources, and provide a clean and livable environment. We need to safeguard
what we have now on Earth for ourselves and the next generations.

8. FINAL PAPER 8
References
Editorial (2012) “Where are the Clean Water Rules?” The New York Times The Opinion Pages
pg. 1-3 Retrieved from: http://www.nytimes.com/2012/06/21/opinion/where-are-the-
clean-water-act-rules.html
Group Proposal
Hurst, Dustin (2010) “House condemns parts of federal Clean Water Restoration Act”
Retrieved from: http://www.idahoreporter.com/2010/house-condemns-parts-of-federal-
clean-water-restoration-act/
NRDC (2008) “Restoring America’s Clean Water Legacy” Natural Resources Defense Council
Pg. 1-2 Retrieved from: http://www.nrdc.org/legislation/factsheets/leg_07020201A.pdf
Quinlan, Paul (2011) “Oil Industry Threatens Obama Admin Over Clean Water Act Guidance
for
Wetlands “The New York Times” Business Day Energy and Environment
Retrieved from: http://www.nytimes.com/gwire/2011/04/15/15greenwire-oil-industry-
threatens-obama-admin-over-clean-96759.html?pagewanted=all
Reilly, Williams (2011) “Keep the Clean Water Act Strong” The New York Times The Opinion
Page pg. 1-4
Retrieved from: http://www.nytimes.com/2011/11/29/opinion/keep-the-clean-water-act-
strong.html
Schwartz, Paul (2012) “Overview: Clean Water Restoration Act of 2009” Clean Water Action
Retrieved from: http://www.cleanwateraction.org/mediakit/overview-clean-water-
restoration-
act-2009
US EPA (2011) “Revisions to the Regulatory Definition of “Navigable Waters” United State
Environmental Protection Agency Retrieved from:
http://www.epa.gov/osweroe1/content/spcc/spcc_nov08waters.htm