The Clean Water Act forbids the discharge of pollutants into the navigable waters of the United States. It would be hard to find anyone who opposes that objective. But as is so often the case when it comes to the law, the devil is in the details.
Implementation of the Clean Water Act is primarily entrusted to the Environmental Protection Agency (EPA) and the Army Corps of Engineers. Since the Act itself is notoriously short on definitions (“navigable waters,” for example, is defined as “waters of the United States,” while the latter term is not defined at all), these agencies are given broad latitude to determine the scope of their own authority. They have approached that task with enthusiasm and vigor.
Federal jurisdiction to regulate the use of private property under the Act depends in large part on how broadly the Agencies define “waters of the United States.” The Supreme Court has occasionally stepped in to cut back on regulatory overreach in this area, but not often. As a result, horror stories abound. John Rapanos, a Michigan builder, was imprisoned and fined millions of dollars for dumping sand on dry land up to 20 miles away from any navigable water. To the Corps of Engineers, this amounted to polluting the waters of the United States. Wyoming rancher Andy Johnson was fined more than $20 million by the EPA for creating a pond on his land to water his cattle, even though stock ponds are specifically exempt from the Act. Mike and Chantell Sackett were fined $75,000 per day for starting to clear and fill a lot in an ordinary residential subdivision; the EPA claimed the couple did not even have the legal right to challenge the Agency’s orders in court.
Not satisfied, the Corps and EPA issued a new administrative rule in 2015 defining their jurisdiction even more broadly. The so-called Waters of the United States (or WOTUS) Rule has been described as the most far-reaching expansion of federal power over private property in the Nation’s history. In addition to actual interstate waterways and territorial seas, the WOTUS Rule gives the Agencies jurisdiction over natural and man-made tributaries (including ditches), whether flowing or not; all water within 1,500 (or sometimes 4,000) feet of any of the foregoing, regardless of barriers preventing actual contact; prairie potholes, vernal pools, and the like, if they have a “significant nexus” (as determined by the Agencies) to interstate waterways or seas, etc. Any activity on one’s own property that would disturb any of these “jurisdictional waters” would require a costly federal permit. Perhaps more importantly, it could cost tens of thousands of dollars and lengthy delays even to determine whether the Agencies claim jurisdiction over your land.
Within six weeks of it adoption, a federal court stayed implementation of the 2015 WOTUS Rule, which remains mired in legal disputes. But then in February of this year, the president issued an executive order directing the Agencies to rescind or revise the Rule, with the objective of balancing environmental protection with economic growth and reduced regulatory uncertainty. In their deliberations, the Agencies were directed to consider an opinion by the late Justice Antonin Scalia, under which Clean Water Act jurisdiction would be limited to waterways with a relatively permanent flow, such as rivers, lakes, and streams, plus wetlands having a continuous surface water connection to some relatively permanent body of water. Redrafting the WOTUS Rule to conform to Justice Scalia’s definition would mark a major advance for private property rights, without detracting from the government’s legitimate interest in protecting navigable waters from pollution.