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Blog > Issues > Property Rights > Why a major Clean Water Act regulation is unconstitutionally broad

Why a major Clean Water Act regulation is unconstitutionally broad

April 22, 2019 I By MOLLIE WILLIAMS

The Clean Water Act protects the navigable waters of the United States. One of the ways it does this is by prohibiting the discharge of pollutants to these waters. These are important aims, but the current definition of “navigable waters” is unconstitutionally broad. This overbroad definition means that ordinary activities like farming, digging ponds, or simply moving dirt remotely near a navigable water can violate the Clean Water Act.

So, what waters are “navigable?” Pacific Legal Foundation asked courts to answer this important question in three lawsuits filed this month.

In 2015, the government agencies that enforce the Clean Water Act enacted a definition of “navigable waters” that is incredibly broad—so broad, in fact, that it violates the terms of not only the Clean Water Act but also the Constitution. It includes, among other things, streams, channels, tributaries, and wetlands, no matter how small or far from actual navigable waters. Many of these water features are seasonal and only exist during the rainy season. What makes the broad definition even more concerning is the harsh penalties that Americans face when they unknowingly violate the Clean Water Act. Benign activities like plowing or digging a ditch near “navigable waters” can subject landowners to harsh penalties, including devastating fines or even jail time.

Take Joe Robertson, who served 18 months in prison for building fire protection ponds on his land, even though his property was 40 miles from navigable waters. Sadly, Joe is not an outlier. Others have lived similar horror stories of government overreach under the Clean Water Act. This kind of Clean Water Act abuse is why the Supreme Court has previously held that broad definitions of navigable waters, like the definition challenged in these cases, are unlawful and unconstitutional.

In Oregon and Washington, we filed a lawsuit on behalf of the members of Oregon Cattlemen’s Association and Washington Cattlemen’s Association. In North Dakota, we intervened in an ongoing case on behalf of the members of the Coalition of Arizona/New Mexico Counties for Stable Economic Growth. The Coalition intervened after the state of New Mexico decided to withdraw from the lawsuit. By intervening, the Coalition hopes to maintain the injunction the District of North Dakota issued against the 2015 Rule in New Mexico.

These cases aim not only to clarify what waters are regulated under the Clean Water Act but also to ensure that the definition is within limits set by Supreme Court precedent and the Constitution. Most importantly, these cases give Americans hope that they can soon carry out ordinary activities on their land free from government overreach and abuse.

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