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.