AEI: Waters of the US Rule and Clean Water Act Fail to Provide Cost-Effective Improvements in Water Quality

To protect navigable waters, the Clean Water Act’s jurisdiction extends to waters linked to navigable ones. But because essentially all waters are connected, under the 2015 Waters of the United States (WOTUS) rule, agencies will assess the degree of connectivity on a case-by-case basis. A recent executive order from President Donald Trump asks the Environmental Protection Agency to rewrite the WOTUS rule using Justice Antonin Scalia’s “continuous surface connection” definition. All this confusion threatens property rights.

Farmers often will not know if their land is under Clean Water Act jurisdiction, yet they can face fines of $25,000 per day of violation for certain activities. If farmers are aware that their land is under Clean Water Act jurisdiction, then they must apply for costly permits: up to $28,915. Moreover, the WOTUS rule fails to address pollution from nonpoint sources and ongoing farming activity. It does not estimate the cost and benefit trade-offs well. In the past 25 years, water quality has seldom improved.

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THE HERITAGE FOUNDATION: What You Need to Know About the EPA/Corps Water Rule: It’s a Power Grab and an Attack on Property Rights

By Daren Bakst

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THE HERITAGE FOUNDATION: The “Waters of the United States” Rule and the Void-for-Vagueness Doctrine

By Paul J. Larkin Jr.

Because the Clean Water Act imposes criminal sanctions for violation of its terms, agency rules interpreting those terms must be precise. The breadth and complexity of the EPA–Army Corps of Engineers Waters of the United States Rule exceed what the law can demand of a “person of ordinary intelligence,” but “waters of the United States” can be construed in a manner that is faithful to its Commerce Clause origins and readily applicable by the average person. That construction—a body of water that can be used by ark, raft, or boat to reach a traditional navigable water—allows the federal government to protect navigation and water quality without putting the average American at risk of violating the criminal law.

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OVERSIGHT COMMITTEE: Politicization of the Waters of the United States Rulemaking

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EPW: From Preventing Pollution of Navigable and Interstate Waters to Regulating Farm Fields, Puddles and Dry Land: A Senate Report on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers and the U.S. Environmental

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THE FEDERALIST SOCIETY: Redefining “Waters of the United States”: Is EPA Undermining Cooperative Federalism?

By Karen Bennett (Hunton & Williams LLP environmental counsel) and John Henson (Hunton & Williams LLP associate)

This article discusses the Environmental Protection Agency’s “Waters of the United States” Rule under the Clean Water Act. As always, The Federalist Society takes no position on particular legal or public policy initiatives. Any expressions of opinion are those of the authors. Generally the Federalist Society refrains from publishing pieces that advocate for or against particular policies. However, in some cases, such as with this article, we will do so because of some aspect of the specific issue. In the spirit of debate, whenever we do that we will offer links to other perspectives on the issue, including ones in opposition to the arguments put forth in the article. We also invite responses from our audience.

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