Tuesday, May 30, 2023

Episode 658 (6-26-23): Another Chapter in the Story of Defining the “Waters of the United States”

CLICK HERE to listen to episode audio (5:35).

Sections below are the following:
Transcript of Audio
Audio Notes and Acknowledgments
Extra Information

Related Water Radio Episodes
For Virginia Teachers (Relevant SOLs, etc.).

Unless otherwise noted, all Web addresses mentioned were functional as of 5-29-23.


From the Cumberland Gap to the Atlantic Ocean, this is Virginia Water Radio for the weeks of June 26 and July 3, 2023.

MUSIC – ~8 sec –lyrics: “Ah reflections in the window pane, fallin’ in love, in the drivin’ rain.”

That’s part of “Driving Rain,” by the Charlottesville- and Nelson County, Va.-based band, Chamomile and Whiskey.  The song’s a love story, but its title and main phrase lead in to a legal water story—that is, how does rain, and any other water on the landscape, become water covered by the federal Clean Water Act, specifically by the Act’s phrase, the “waters of the United States?”  On May 25, 2023, the U.S. Supreme Court wrote a new chapter in this story.

Passed in 1972, the Clean Water Act’s main goal is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”  The Act states that it applies to “navigable waters,” defined as “waters of the United States, including the territorial seas,” and amendments in 1977 added wetlands that are adjacent to other covered waters.  All waters covered by the Act are known as “jurisdictional waters,” and any discharges into such waters require a federal permit.  Defining what waters—particularly what wetlands and small tributaries—are jurisdictional has enormous impact on the Act’s environmental and economic reach.

Many questions and legal challenges have been raised over the meaning of “waters of the United States,” its relation to the term “navigable waters,” and the Act’s implementation by the U.S. EPA and the Army Corps of Engineers.  The Supreme Court has a long history of decisions on these questions.  Here are short accounts of five important Court decisions, including the most recent one, affecting the Act’s jurisdiction.

1.  The 1870 Daniel Ball decision held that “navigable waters of the United States” are those that support commerce between states or with foreign countries.  Later Supreme Court cases expanded that test to include waters that formerly supported, or could support, such commerce.

2.  The 1985 Riverside Bayview decision affirmed that the Act covered wetlands adjacent to other “waters of the United States.”

3.  The 2001 SWANCC decision held that the Act did not cover wetlands solely on the basis of their use by migratory birds.

4.  In the complicated 2006 Rapanos decision, a plurality opinion by Justice Antonin Scalia held that the Act covers only relatively permanent water bodies that form recognizable geographical features, plus wetlands only if they have a “continuous surface connection” to other covered waters.  Justice Anthony Kennedy’s concurring opinion held that wetlands were covered if they have a quote, “significant nexus,” unquote, to conditions in other covered waters.

And 5.  The 2023 Sackett decision returned to the Scalia opinion of 2006, while dismissing Justice Kennedy’s “significant nexus” test.  So the Court now holds that the Act covers only, quote, “relatively permanent, standing or continuously flowing water bodies, forming geographical features…described in ordinary parlance as streams, oceans, rivers, and lakes,” unquote;  plus wetlands with a “continuous surface connection” to such water bodies.  This removes many previously regulated wetlands from the Act’s jurisdiction.  While the Sackett decision focused particularly on wetlands, the new test articulated in the decision may have impacts as well for small streams that do not flow year-round.

Through amendments, executive orders, agency actions, and litigation, defining the reach of the Clean Water Act has been a long, meandering story.  It’s probably safe to say that more turns await.

Thanks to Chamomile and Whiskey for permission to use “Driving Rain.”  We close with some more music, this time from Wake Up Robin, with musicians from California, New York, North Carolina, New York, and Washington.  The song’s watery title recalls debates over what water bodies are, so to speak, enough like navigable waters to be covered by the Clean Water Act.  Here’s about 20 seconds of “Like a River.”

MUSIC – ~19 sec – instrumental.


Virginia Water Radio is produced by the Virginia Water Resources Research Center, part of Virginia Tech’s College of Natural Resources and Environment.  For more Virginia water sounds, music, or information, visit us online at virginiawaterradio.org, or call the Water Center at (540) 231-5624.  Thanks to Stewart Scales for his banjo version of “Cripple Creek” to open and close this episode.  In Blacksburg, I’m Alan Raflo, thanking you for listening, and wishing you health, wisdom, and good water.


“Driving Rain,” from the 2012 album “The Barn Sessions,” is copyright by Chamomile and Whiskey and by County Wide Records, used with permission.  More information about Chamomile and Whiskey is available online at http://www.chamomileandwhiskey.com/.  This music was used previously by Virginia Water Radio most recently in Episode 650, 3-6-23.

“Like a River,” from the 2018 album “Wake Up Robin,” on Great Bear Records, by the group of the same name, is used with permission of Andrew VanNorstrand.  More information about the album and band is available online at https://wakeuprobin.bandcamp.com, and at https://www.wakeuprobin.com/.

Virginia Water Radio thanks Stephen Schoenholtz, Kevin McGuire, and Daniel McLaughlin, all of the Virginia Water Resources Research Center and the Virginia Tech Department of Forest Resources and Environmental Conservation, for their help with this episode.

Click here if you’d like to hear the full version (1 min./11 sec.) of the “Cripple Creek” arrangement/performance by Stewart Scales that opens and closes this episode.  More information about Mr. Scales and the group New Standard, with which Mr. Scales plays, is available online at http://newstandardbluegrass.com.


(Photographs are by Virginia Water Radio.)

What does the definition of “waters of the United States” say about the following areas?

Marsh at Eyre Hall near Cheriton, Virginia (Northampton County), October 6, 2007.

Bog near the community of Interior in Giles County, Virginia, October 3, 2009.

Wetland-lake complex in the Loup River watershed near Valentine, Nebraska, July 14, 2011.

Upper photo: Dry (at the time) seasonal floodplain pond in Heritage Park in Blacksburg, Virginia (Montgomery County), May 27, 2023; lower photo: the same pond in wet conditions three days later, on May 30, 2023.


The following is quoted from the first page of the Supreme Court’s syllabus of the Sackett v. EPA case, decided May 25, 2023; the information was accessed online (from a PDF) at https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf, May 29, 2023.



No. 21–454. Argued October 3, 2022—Decided May 25, 2023

Petitioners Michael and Chantell Sackett purchased property near Priest Lake, Idaho, and began backfilling the lot with dirt to prepare for building a home.  The Environmental Protection Agency informed the Sacketts that their property contained wetlands and that their backfilling violated the Clean Water Act, which prohibits discharging pollutants into “the waters of the United States.” 33 U. S. C. §1362(7).  The EPA ordered the Sacketts to restore the site, threatening penalties of over $40,000 per day.  The EPA classified the wetlands on the Sacketts’ lot as “waters of the United States” because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake.  The Sacketts sued, alleging that their property was not “waters of the United States.” The District Court entered summary judgment for the EPA.  The Ninth Circuit affirmed, holding that the CWA covers wetlands with an ecologically significant nexus to traditional navigable waters and that the Sacketts’ wetlands satisfy that standard.

Held: The CWA’s use of “waters” in §1362(7) refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ ” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection.  Rapanos v. United States, 547 U. S. 715, 755, 742, 739 (plurality opinion).  To assert jurisdiction over an adjacent wetland under the CWA, a party must establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”  Ibid. Pp. 6–28.


Justia Company, “U.S. Supreme Court/The Daniel Ball, 77 U.S. 557 (1870), online at https://supreme.justia.com/cases/federal/us/77/557/.

Justia Company, “U.S. Supreme Court/United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), online at https://supreme.justia.com/cases/federal/us/474/121/.

Justia Company, “U.S. Supreme Court/Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001),” online at https://supreme.justia.com/cases/federal/us/531/159/.

Justia Company, “U.S. Supreme Court/Rapanos v. United States, 547 U.S. 715 (2006),” online at https://supreme.justia.com/cases/federal/us/547/715/.

Justia Company, “U.S. Supreme Court/Sackett v. Environmental Protection Agency, 598 U.S. ___ (2023),” online at https://supreme.justia.com/cases/federal/us/598/21-454/.

John Krunzel and Andrew Chung, “US Supreme Court rules against EPA in wetlands regulation challenge,” Reuters, May 25, 2023.

Adam Liptak, “Supreme Court Limits E.P.A.’s Power to Address Water Pollution, New York Times, May 25, 2023.

John Lowenthal, “Summary on Sackett v. US EPA,” Society of Wetland Scientists [McLean, Va.], e-mail message sent May 26, 2023.

Supreme Court of the United States, No. 21-454, Michael Sackett, et ux., Petitioners, v. Environmental Protection Agency, et al., May 25, 2023.  Cited as 598 U.S.__(2023).  The case was argued October 3, 2022.  The opinions (majority plus two concurring) are available online (as a PDF) at https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf.

Nina Totenberg, “The Supreme Court has narrowed the scope of the Clean Water Act.” NPR, May 25, 2023.

U.S. Environmental Protection Agency (EPA):
EPA and Army Finalize Rule Establishing Definition of WOTUS and Restoring Fundamental Water Protections,” December 30, 2022, news release.
“Revising the Definition of ‘Waters of the United States’: Final Revised Definition of ‘Waters of the United States’,” online at https://www.epa.gov/wotus/revising-definition-waters-united-states, as of 5-26-23.
“Summary of the Clean Water Act,” online at https://www.epa.gov/laws-regulations/summary-clean-water-act;
“Waters of the United States,” online https://www.epa.gov/wotus.


All Water Radio episodes are listed by category at the Index link above (http://www.virginiawaterradio.org/p/index.html).  See particularly the “Community/Organizations” subject category.

This Virginia Water Radio episode builds upon two previous episodes on the “waters of the United States”:
Episode 269, 6-8-15 – What are the “Waters of the United States”?
Episode 451, 12-17-18 – The Continuing Story of Defining the “Waters of the United States.”

Another previous episode related to the federal Clean Water Act is Episode 380, 8-7-17 – Natural Gas Pipelines, Water Resources, and the Clean Water Act.  (Please note that this episode does not have information relevant to the definition of “waters of the United States.”)


Following are some Virginia Standards of Learning (SOLs) that may be supported by this episode’s audio/transcript, sources, or other information included in this post.

2020 Music SOLs

SOLs at various grade levels that call for “examining the relationship of music to the other fine arts and other fields of knowledge.”

2018 Science SOLs

Grades K-5: Earth Resources
3.8 – Natural events and humans influence ecosystems.
4.8 – Virginia has important natural resources.

Grade 6
6.6 – Water has unique physical properties and has a role in the natural and human-made environment.
6.8 – Land and water have roles in watershed systems.
6.9 – Humans impact the environment and individuals can influence public policy decisions related to energy and the environment.

Life Science
LS.9 – Relationships exist between ecosystem dynamics and human activity.

Earth Science
ES.6 – Resource use is complex.
ES.8 – Freshwater resources influence and are influenced by geologic processes and human activity.

BIO.8 – Dynamic equilibria exist within populations, communities, and ecosystems.

2015 Social Studies SOLs

Virginia Studies Course
VS.10 – Knowledge of government, geography, and economics in present-day Virginia.

United States History: 1865-to-Present Course
USII.8 – Economic, social, and political transformation of the United States and the world after World War II.
USII.9 – Domestic and international issues during the second half of the 20th Century and the early 21st Century.

Civics and Economics Course
CE.6 – Government at the national level.
CE.7 – Government at the state level.
CE.10 – Public policy at local, state, and national levels.

World Geography Course
WG.4 – Types and significance of natural, human, and capital resources.

Virginia and United States History Course
VUS.13 – Changes in the United States in the second half of the 20th Century.
VUS.14 – Political and social conditions in the 21st Century.

Government Course
GOVT.4 – Purposes, principles, and structure of the U.S. Constitution.
GOVT.5 – Federal system of government in the United States.
GOVT.7 – National government organization and powers.
GOVT.9 – Public policy process at local, state, and national levels.
GOVT.10 – Understanding the federal judiciary.
GOVT.15 – Role of government in Va. and U.S. economies, including examining environmental issues and property rights.

Virginia’s SOLs are available from the Virginia Department of Education, online at https://www.doe.virginia.gov/teaching-learning-assessment/instruction

Following are links to Water Radio episodes (various topics) designed especially for certain K-12 grade levels.

Episode 250, 1-26-15 – on boiling, for kindergarten through 3rd grade.
Episode 255, 3-2-15 – on density, for 5th and 6th grade.
Episode 282, 9-21-15 – on living vs. non-living, for kindergarten.
Episode 309, 3-28-16 – on temperature regulation in animals, for kindergarten through 12th grade.
Episode 333, 9-12-16 – on dissolved gases, especially dissolved oxygen in aquatic habitats, for 5th grade.
Episode 404, 1-22-18 – on ice on ponds and lakes, for 4th through 8th grade.
Episode 407, 2-12-18 – on snow chemistry and physics, for high school.
Episode 483, 7-29-19 – on buoyancy and drag, for middle school and high school.
Episode 524, 5-11-20 – on sounds by water-related animals, for elementary school through high school.
Episode 531, 6-29-20 – on various ways that animals get water, for 3rd and 4th grade.
Episode 539, 8-24-20 – on basic numbers and facts about Virginia’s water resources, for 4th and 6th grade.
Episode 606, 12-6-21 – on freezing and ice, for kindergarten through 3rd grade.