“When the well is dry, we know the worth of water.” —Benjamin Franklin

Introduction:

The Clean Water Act serves as the bastion of hydrological regulation in the United States. Passed in the 1970’s after a series of environmental catastrophes, the act aims to impose federal standards for the conservation and regulation of the United States’ waters. To effectuate its mission, the Clean Water Act establishes numerous statutory, regulatory, and permitting schemes, all designed to sustain the quality of water in the United States.¹

Despite its ambition and renown, the Clean Water Act has encountered its share of legal setbacks, typically taking the form of Supreme Court cases or instability during the rulemaking process. To make up for any gaps in coverage, some states, like Tennessee, have opted to utilize the opportunities for cooperative federalism present in the Clean Water Act.

Tennessee serves as an exemplar within the water regulatory space. Our state boasts numerous complementary programs designed to reaffirm or supplement the programs present in the Clean Water Act, all while maintaining a public trust with the beneficiaries being the citizens of Tennessee. This paper proceeds in two parts which detail the Clean Water Act and Tennessee’s interaction with it. Part I will detail the juxtaposition between Waters of the United States and Tennessee’s state waters, along with how the Tennessee Water Quality Control Act remedies problems arising from jurisdictional waters. Part II will build upon the established jurisdictions to detail Clean Water Acts §401, §402, and §404 and will analyze the ways in which Tennessee’s water regulation supplements the Clean Water Act.

Part I: WOTUS and the TWQCA

Among the glaring flaws present in the Clean Water Act, perhaps none is more salient than the continually changing definition of “Waters of the United States” and its accompanying tests. With this, the statutory construction of the Clean Water Act poses an innate limitation on its scope, given that the definition of the “Waters of the United States” ebbs and flows according to the administration in office or the latest Supreme Court decision. Most recently, the decision in Sackett v. United States Environmental Protection Agency limited the scope of WOTUS, which had previously rested shakily on the tests stemming from the plurality decision in Rapanos v. United States Environmental Protection Agency.²³

Rapanos specifically provided two demarcations as a way of navigating WOTUS. Justice Scalia’s “relatively permanent, standing or continuously flowing bodies of water” standard, in application, would provide a limited jurisdiction designed to capture wetlands that possessed a “continuous surface connection” with other navigable waters.⁴ In opposition, Justice Kennedy’s “significant nexus” test, painting with a much broader stroke when filling in the WOTUS map, provided that wetlands need only a significant nexus to navigable waters based on connections and impacts to the chemical, physical, and biological integrity of a traditionally navigable water.⁵

Sackett, staging the most recent battle in the WOTUS saga, challenged and ultimately overruled the Ninth Circuit’s decision to utilize Kennedy’s “significant nexus” test. The Sackett opinion, authored by Justice Alito, establishes a new “continuous surface connection” test, which requires a continuous surface connection to a relatively permanent body of water connected to traditional navigable waters for a WOTUS determination, effectively narrowing the scope of the Clean Water Act by removing viability for certain hydrological features that may appear temporary in nature of tenuous in their connection to traditional navigable bodies.⁶

The Sackett decision brings attention to an act which underpins all of Tennessee’s water regulation, and while the act in itself is not a response to the WOTUS standards, the Tennessee Water Quality Control Act (“TWQCA”) establishes a public trust doctrine and broad definitional regulations which govern Tennessee’s role as trustee over “waters of the State of Tennessee” with citizens as the beneficiaries.⁷ In stark contrast to WOTUS, Tennessee’s waters of the state are defined broadly and precisely with the language, “any and all water, public or private, on or beneath the surface of the ground, which are contained within, flow through, or border upon the State of Tennessee or any portion thereof.”⁸ When juxtaposed with the federal continuous surface connection test, Tennessee’s own jurisdictional waters provide protection across the entire spectrum of its water bodies and hydrological features.

By maintaining this definition and retaining the permitting schemes discussed in Part II, Tennessee effectively fills the gaps left by the WOTUS rulings to fulfill its obligation as trustee. This continual commitment to safeguarding the waters of the state, even during periods of deregulation, provides a shining example to other states with a vested interest in maintaining the integrity of their waters.

Part II: State and Federal Regulation

For waters which fall within the WOTUS definitional scope, the Clean Water Act imposes a regulatory framework requiring the Environmental Protection Agency or United States Army Corps of Engineers to investigate and issue permits for any alteration that creates an appreciable impact on water quality.⁹ The two primary permits issued under the CWA are housed in §402 and §404, which respectively regulate pollutant discharges and dredging or filling into WOTUS.¹⁰ In addition to these permits, the CWA §401 requires state certification to ensure compliance with state water quality standards.¹¹

The Clean Water Act §402 establishes the National Pollution Discharge Elimination System permitting scheme (“NPDES”).¹² NPDES regulates the discharge of pollution into jurisdictional waters from a “point source.”¹³ A point source, as defined by the Clean Water Act, is “any discernible, confined, and discrete conveyance from which pollutants are or may be discharged.”¹⁴ Oftentimes it is difficult to identify a point source, however, once one is identified, the NPDES system then regulates the discharge of pollutants into the respective water. Recently, the United States Supreme Court decided a case which implicates both §401 and §402, while providing another potential opportunity for states to establish additional protection beyond the limitations of the CWA to their waters.¹⁵

City and County of San Francisco v. EPA provides the Court’s most recent look into the Clean Water Act. Specifically, the Court in San Francisco reviewed and struck down the viability of certain “limitations” imposed under the NPDES program, establishing that receiving water limitations fall outside of the scope of the §402 permitting program.¹⁶ In the case, San Francisco had accumulated fines for noncompliance with one of the city’s NPDES permits based on narrative limitations set regarding receiving waters.¹⁷ The receiving waters limitations in question were based on biochemical readings not from a point source itself, but from the waters into which the pollutants flow.¹⁸ These limitations are to be contrasted with “effluent limitations,” which afford a permit which is contingent upon the number of pollutants actually flowing from the point source itself.

An opportunity for states wishing to regulate their waters through receiving water limitations may be able to manage through the §401 certification which accompanies §402 permits. Tennessee, utilizing the water quality standards regarding conditions of pollution set out in the Tennessee Water Quality Control Act, may possess the capability to establish regulations which hold polluters accountable for the status of the receiving waters in addition to effluent limitations by requiring specific provisions for §401 certification. While this is not practicable in all scenarios, the potential for states to use this avenue for cooperative federalism may improve overall water quality if implemented properly.

In addition to §402, the Clean Water Act provides permitting requirements and guidance for any act which would discharge dredged or fill material into any Water of the United States with CWA §404.¹⁹ Similar to its counterpart, §404 requires a §401 certification, but the “dredge and fill” permits are typically contingent upon the WOTUS status of the receiving water. This WOTUS contingency establishes a limiting factor on the federal protections provided to waters, effectively leaving states to regulate their jurisdictional waters outside of the program.

To remedy this, Tennessee provides its own form of statutory protections housed within with the Tennessee Water Quality Control Act (“TWQCA”).²⁰ With its permitting, Tennessee attempts to effectuate the stateside public trust doctrine outside of federal certification by requiring persons who wish to make an alteration to a stream, river, lake or wetland to first obtain an Aquatic Resource Alteration Permit (“ARAP”) issued by the Tennessee Department of Environment and Conservation.²¹ This permitting regime effectively creates a complementary program that which holds fidelity to the standards set in CWA §404. This permitting scheme present in the TWQCA is an attempt to capture, regulate, and ensure Tennessee’s jurisdictional waters, being ones that fall outside of the ambit of the Clean Water Act, remain secure for its citizens.

Conclusion

When considering the entirety of Tennessee’s environmental regulations, our state effectively fills the gaps left by the Clean Water Act, providing a noteworthy example for other states who wish to maintain the quality of their hydrological features. As the continually pending status of WOTUS shifts in the wake of our political processes, it may be best to consider what state regulatory bodies can provide for their citizens and environment.

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OWEN KING is

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1 Clean Water Act, 33 U.S.C. § 1251.
2 Sackett v. EPA, 598 U.S. (2023).
3 Rapanos v. United States, 547 U.S. 715 (2006).
4 See Rapanos, 547 U.S. at 739 (plurality opinion).
5 See Rapanos, 547 U.S. at 779 (Kennedy, J., concurring).
6 Sackett v. EPA, 598 U.S. (2023).
7 Tenn. Code Ann. § 69-3-101.
8 Id.
9 33 U.S.C. § 1341
10 Id.
11 Id. at §1251.
12 Id. at §1342.
13 Id.
14 Id.
15 Id.
16 County of San Francisco v. Environmental Protection Agency, 604 U.S. ___ (2025).
17 Id.
18 Id.
19 33 U.S.C. § 1344
20 Tenn. Code Ann. § 69-3-101
21 Tenn. Comp. R. & Regs. § 0400-40-07-.04