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Waters of the United States Compared to Waters of the State of Oregon

Frank Hammond Sept. 19, 2023

Regarding clean water regulations, permits are required only if they affect specified waters. For example, a federal wetland fill permit under the Clean Water Act is only required if the waters to be filled are waters of the United States. Insert citation. Compare this to Oregon where a wetland fill/removal permit is only required when the activity will affect waters of the state. See ORS 196.800(15) (defining “waters of the state”). A recent United States Supreme court case severely limits when wetlands will qualify as waters of the United States. Sackett v. EPA, 143 S. Ct. 1322 (2023). On the other hand, the phrase waters of the state is a broader term. ORS 196.800(15); see also ORS 468B.005(10). Therefore, to understand permitting under clean water regulations it is important to understand the difference between the federal definition of waters of the United States and the state definition of waters of the state.

Waters of the United States

Certain provisions of the Clean Water Act apply only to navigable waters, e.g 33 USC 1344, which must be waters of the United States. 33 USC 1362(7). Hence, we must first appreciate how the Supreme Court defined such waters in Sackett

In Sackett, the petitioners, Michael and Chantell Sackett, owned a residential lot in Priest Lake, Idaho. The Sacketts intended to build a home on their property, and in preparation for construction, they filled in a portion of the land with gravel and dirt. EPA issued a Compliance Order to the Sacketts, alleging that they had violated the Clean Water Act by filling in the wetlands on their property without obtaining a permit. The Sacketts disputed EPA’s allegations and believed they were not subject to the Clean Water Act’s jurisdiction. They requested a hearing to challenge EPA’s order. EPA maintained that the Compliance Order was final and that the Sacketts had no right to challenge it in court until EPA chose to enforce it through a civil action, which could potentially result in significant fines. Initially, both the district court and the Ninth Circuit Court of Appeals sided with EPA, holding that the Compliance Order was not subject to immediate judicial review. The Sacketts appealed to the U.S. Supreme Court, which agreed to hear the case.

The central legal issue in this case was whether the Sacketts had the right to seek judicial review of the EPA’s Compliance Order before the EPA initiated enforcement proceedings. But in the process of deciding this issue, the Court had to decide whether the alleged wetlands were “waters of the United States” subject to EPA’s jurisdiction under the Clean Water Act.

The Court did not decide whether the Sackett’s property had qualifying wetlands, but it did decide what constitutes waters of the United States:

“[W]e hold that the CWA extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. . . . . This requires the party asserting jurisdiction over adjacent wetlands to 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.” 

(Quotation marks and citations omitted.) This definition significantly narrows the definition in previous use, and it is more constrained than Oregon’s definition of waters of the state.

Waters of the State

Oregon has two definitions for waters of the state, one for wetlands and one for NPDES. They are, however, essentially the same. For example, the definition for wetlands is as follows:

“’Waters of this state’” means all natural waterways, tidal and nontidal bays, intermittent streams, constantly flowing streams, lakes, wetlands, that portion of the Pacific Ocean that is in the boundaries of this state, all other navigable and nonnavigable bodies of water in this state and those portions of the ocean shore, as defined in ORS 390.605, where removal or fill activities are regulated under a state-assumed permit program as provided in 33 U.S.C. 1344(g) of the Federal Water Pollution Control Act, as amended.” ORS 196.800(15). 

By covering nonnavigable waters and essentially all waters within its boundaries, Oregon’s definitions are considerably broader than the definition given to waters of the United States. This means that Oregon’s fill/removal law and its NPDES program will often apply despite the lack of federal jurisdiction. Permit seekers in Oregon must pay special attention to Oregon’s requirements when moving forward with permits or seeking to apply Oregon’s NPDES program.

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