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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