27
May
Revision to Clean Water Regulations Threatens Biological Integrity of the Nation’s Waters
(Beyond Pesticides, May 27, 2025) Ever since the Clean Water Act (CWA) became law in 1972, to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,†the definition of the “Nation’s waters,†aka “waters of the U.S.†or “WOTUS,†has been cloaked in controversy. This controversy is coming to a head again as the Trump administration revises regulations in which the Biden administration attempted to interpret the Supreme Court’s decision in Sackett v. EPA (2023) in a way that is consistent with the goals of CWA.Â
The declaration of goals and policy in CWA begins:Â
The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act—Â
(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;Â
(2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;Â
(3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited; . . .Â
Section 502(7) of CWA defines the term “navigable waters,†which delineates the jurisdiction of CWA regulation to be “waters of the United States, including the territorial seas,†thus removing the nexus to navigability in earlier law. According to the Congressional Research Service (CRS), “The Clean Water Act itself does not expand further on the meaning of ‘waters of the United States.’ Instead, the Corps [Army Corps of Engineers] and EPA have expounded on this phrase through agency guidance and regulations, which federal courts have struck down on various occasions as failing to satisfy statutory or constitutional requirements.†The CRS further explains:Â
In debating the 1972 amendments that created the Clean Water Act, some Members of Congress explained that they intended the revised definition to expand the law’s jurisdiction beyond traditionally navigable or interstate waters. The conference report states that the “conferees fully intend that the term ‘navigable waters’ be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.” And during debate in the House on approving the conference report, one Representative explained that the definition “clearly encompasses all water bodies, including streams and their tributaries, for water quality purposes.” Courts have frequently referred to the act’s legislative history when interpreting its jurisdictional reach, but they have not always agreed on the import of this history.Â
As a result, the jurisdiction of EPA and delegated state and tribal entities to protect water quality has varied according to the politics of the administration in power at the time. There is clearly a need to clarify the scope of CWA protections. Â
Science also has a role to play. Bodies of surface water do not exist as independent entities. Intermittent streams flow into rivers and lakes. Ponds, ditches, and wetlands may feed lakes and streams either directly or through groundwater. Contaminants of intermittent or ephemeral water bodies can affect wildlife dependent on them, as well as the waters to which they are connected. The toxic soup in many U.S. waterways is unsustainable and threatens the foundation of many food chains. Imbalances in aquatic environments can ripple throughout the food web, creating trophic cascades that further exacerbate health and environmental damage. Studies of major rivers and streams find that 90% of fish, 100% of surface water samples, and 41% of major aquifers contain one or more pesticides at detectable levels. Almost 90% of water samples contained at least five or more different pesticides. Furthermore, the U.S. Geological Survey (USGS) reports at least 143 pesticides and 21 pesticide transformation/breakdown products (metabolites) in the groundwater of over 43 states.Â
The broad goals of CWA can be met only if agencies adopt a consistent “broadest possible constitutional interpretation†of WOTUS. In the last Congress, H.R. 5983 (2023), introduced by U.S. Representative Rick Larsen (D-WA) and 131 cosponsors, would have provided the needed clarity. The goals of H.R. 5983 are “… (1) To reaffirm the commitment of Congress to restore and maintain the chemical, physical, and biological integrity of the Nation’s protected water resources. (2) To clearly define the Nation’s protected water resources that are subject to the Federal Water Pollution Control Act (33 U.S.C. 1252 et seq.) (commonly known as the “Clean Water Actâ€) based on the best available scientific evidence and decades of partnership between the Federal, State, and Tribal governments to protect water quality. (3) To eliminate the confusion initiated by the Supreme Court’s overly narrow interpretation of the term ‘navigable waters.’ (4) To reestablish the comprehensive authority necessary to meet the codified objective of the Clean Water Act; and to restore a national minimum standard of protection of the Nation’s protected water resources to the fullest extent of the legislative authority of Congress under the Constitution.â€Â
>> Tell your U.S. Representative and Senators to ensure that agencies reaffirm U.S. commitment to restoring and maintaining the chemical, physical, and biological integrity of all the nation’s protected water resources.Â
Letter to U.S. Representative and Senators:
I am concerned about the deterioration of protection of our nation’s waters. Ever since the Clean Water Act (CWA) became law in 1972, to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,†the definition of the “Nation’s waters,†aka “waters of the U.S.†or “WOTUS,†has been cloaked in controversy. This controversy is coming to a head again as the Trump administration revises the definition.
*** The declaration of goals and policy in CWA begins:
The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act—
(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;
(2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;
(3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited; . . .
Section 502(7) of CWA defines the term “navigable waters,†which delineates the jurisdiction of CWA regulation to be “waters of the United States, including the territorial seas.†CWA left the definition of “waters of the United States†to EPA and the Army Corps of Engineers, which have produced definitions changing with the politics of the administration in power. The Congressional Research Service says, “In debating the 1972 amendments that created the Clean Water Act, some Members of Congress explained that they intended the revised definition to expand the law’s jurisdiction beyond traditionally navigable or interstate waters. The conference report states that the ‘conferees fully intend that the term ‘navigable waters’ be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.’ And during debate in the House on approving the conference report, one Representative explained that the definition ‘clearly encompasses all water bodies, including streams and their tributaries, for water quality purposes.’â€
There is clearly a need to clarify the scope of CWA protections.
Science also has a role to play. Bodies of surface water do not exist as independent entities. Intermittent streams flow into rivers and lakes. Ponds, ditches, and wetlands may feed lakes and streams either directly or through groundwater. Contaminants of intermittent or ephemeral water bodies can affect wildlife dependent on them, as well as the waters to which they are connected. The toxic soup in many U.S. waterways is unsustainable and threatens the foundation of many food chains. Imbalances in aquatic environments can ripple throughout the food web, creating trophic cascades that further exacerbate health and environmental damage.
The goals of CWA can be met only if agencies adopt a consistent “broadest possible constitutional interpretation†of WOTUS. I ask you—through oversight and legislation—to reaffirm the nation’s commitment to restore and maintain the chemical, physical, and biological integrity of the nation’s protected water resources; to clearly define the nation’s protected water resources based on the best available scientific evidence; to eliminate the confusion over the term ‘navigable waters;’ to reestablish the comprehensive authority necessary to meet the objectives of the Clean Water Act; and to restore a national minimum standard of protection of the nation’s protected water resources.
In the last Congress, H.R. 5983, introduced by U.S. Rep. Rick Larsen and 131 co-sponsors, would have provided the needed clarity.
Thank you.
