On August 22, 2014, WLF filed formal comments with the Environmental Protection Agency, cautioning the agency that a proposed rule intended to clarify the scope of federal jurisdiction under the Clean Water Act (CWA) conflicts with binding Supreme Court precedent. Based in part on a controversial draft EPA report that considers studies of the connectivity of streams and wetlands to downstream waters, the proposed rule would presumptively determine that certain waters are subject to regulation under the CWA. WLF expressed concern that the rule’s proposed definition of “waters of the United States” was inconsistent with the leading Supreme Court cases—SWANCC and Rapanos—interpreting the permissible outer limits of federal jurisdiction under the CWA. If EPA were to embrace the proposed construction of the CWA, WLF warned, the statute as so construed would exceed the outer bounds of Congress’s power under the Commerce Clause.
