“Past administrators have spent years capriciously expanding and redefining what constitutes a water of the United States. It’s time for a narrow, clear definition that follows the letter of the law and Supreme Court precedent.” -Mark Robertson, WLF Staff Attorney

WASHINGTON, DC— Washington Legal Foundation (WLF) today filed formal comments with the Environmental Protection Agency and the Army Corps of Engineers (collectively, “Agencies”) in response to a request for stakeholder input on the new definition of “waters of the United States” in the Clean Water Act (CWA). WLF’s comments applaud the Agencies’ efforts and urge the Agencies to implement a predictable and more easily implementable rule so as to prevent spurious reinterpretation whenever an administrator seeks to regulate a body of water.

For years, states and landowners have struggled to interpret the definition of “waters of the United States.” The Agencies’ proposed rule is the second part of a two-step process intended to review and revise the definition of “waters of the United States” consistent with the February 28, 2017 Executive Order, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The new definition would more clearly establish the scope of federal regulatory authority under the CWA. The proposed rule would apply nationwide, replacing the current patchwork framework of the CWA that has resulted from litigation challenging the 2015 Rule.

The proposed rule tracks Supreme Court precedent that recognized a narrow definition of “waters of the United States.” It recognizes CWA jurisdiction over tradition navigable waters and those bodies of water that are physically and meaningfully connected to traditional navigable waters while establishing a clear distinction between federal waters and those subject to the sole control of the States and Tribes. States and Tribes are in the best position to regulate waters within their borders, as they know the needs of their citizens and can properly address pollution issues affecting them, WLF asserts.

As the current administration scrutinizes burdensome and vague regulations, WLF encourages the Agencies to adopt a standard that clearly defines what constitutes “waters of the United States” and eliminates the confusion cause by the 2015 Rule and previous interpretations. This will provide clarity to landowners, helping sustain economic growth and reducing barriers to business development.

Celebrating its 42nd year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.