The Clean Water Act

The Environmental Protection Agency and the Corps of Engineers’ recently released an administrative rule interpreting the phrase “Waters of the United States” under the Clean Water Act of 1972. That Rule ignores the clear language and intent of the statute.

The WOTUS Rule extends federal jurisdiction far beyond the reach of the Clean Water Act—any area of land that is wet occasionally may be subject to federal jurisdiction.

This is important because the Clean Water Act’s prohibition on “pollutants” extends to ordinary materials like sand, dirt, and backfill. This broad definition of “pollutant” subjects many ordinary farming, residential, and commercial activities to permitting requirements. For example, any time a farmer wants to plow a field in a covered area, she likely must obtain a permit.

These permits are extremely costly and put an unwarranted burden on farmers, landowners, and businesses.

Ironically, the WOTUS Rule comes after the Supreme Court’s rejection of the EPA and Corps of Engineers’ broad view of federal jurisdiction.

Accordingly, states have filed lawsuits around the country, and a number of federal courts have agreed with their argument that the WOTUS Rule is inconsistent with the Clean Water Act.

The bigger story, however, is that the Clean Water Act has been rendered unrecognizable by a series of expansive federal court and agency interpretations. It is time for Congress to clarify that the Clean Water Act has a more limited application.

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