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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THE MERCATUS CENTER: Public Interest Comment: Definition of “Waters of the United States” Under the Clean Water Act

By Ryan Yonk, Ken Sim, and Josh DeFriez

The Environmental Protection Agency and Army Corps of Engineers have proposed a rule changing the definition of “waters of the United States” under the Clean Water Act (CWA). Under current law, whether or not a water body qualifies as “waters of the United States” is determined case-by-case. The proposed rule seeks to add clarity to this process by providing a more robust definition for “waters of the United States.”

The rule would lead to expansion of the agencies’ jurisdiction, and it would impose higher costs on those who comply with the CWA. The proposed rule fails to demonstrate that its benefits outweigh its costs. It will likely fail to improve environmental outcomes and lead to uncertainty about what is allowed under the CWA.

Continue reading at The Mercatus Center…