(Ground)Waters of the United States: Unlawfully Excluding Tributary Groundwater from Clean Water Act Jurisdiction

Abstract

The controversial 2015 federal rule defining “waters of the United States” -- the jurisdictional determinant for regulation under the Clean Water Act (CWA), now the subject of numerous lawsuits -- has been attacked largely for its alleged federal overreaching. Actually, the rule is under inclusive, for it categorically exempted all groundwater from CWA regulation. We think this exclusion conflicts with the purposes, terms, and judicial interpretations of the statute -- including those of the Supreme Court -- all of which have consistently interpreted the jurisdictional scope of the statute on the basis of a “significant effects” test, not an unscientific pronouncement based on administrative convenience. We explain the case for inclusion of tributary groundwater in this Article, even though the impending litigation over the rule is unlikely to address the issue.

Keywords: Clean Water Act, jurisidiction, waters of the United States, groundwater, Environmental Protection Agency, U.S. Army Corps of Engineers

JEL Classification: H77, I18, K23, K32, K49, L98, O13, Q25, Q28