Appropriations Bill Does Not Limit Clean Water Act Jurisdiction

The omnibus appropriations bill, which passed the House and Senate this past Friday and Saturday, included numerous environmental and energy riders, but it left out one that would have prevented the U.S. Army Corps of Engineers (ACOE) from clarifying what is a "water of the United States." Some environmentalists claimed that such a rider would have denied the Clean Water Act's protection to one-fifth of the nation's wetlands and nearly two million miles of streams.

What is a "water of the United States" has been the subject of three U.S. Supreme Court decisions and multiple rounds of guidance by the Environmental Protection Agency (EPA) and the ACOE. In 1985, the Supreme Court first held that wetlands adjacent to traditional navigable waterways were "waters of the United States."¹ In 2001, the Supreme Court decided that non-adjacent wetlands were not protected based solely on seasonal migratory bird use.² Finally, in 2006, the Court ruled 4-1-4 in Rapanos v. United