The Intended Scope of Clean Water Act Jurisdiction

December 2011
ELR 11118
Jon Devine, Joan Mulhern, Jan Goldman-Carter, Jim Murphy, Rebecca Hammer, and Jared Thompson

In an unnecessarily exaggerated response to U.S. Supreme Court decisions over the past decade, the agencies that implement the Clean Water Act have substantially reduced the scope of waters that are considered jurisdictional “waters of the United States” under the Act. The agencies are now working on new guidance and regulations that would be a step toward restoring the intended scope of “waters of the United States.” However, in an attempt to narrow interpretations of the Act, opponents of clean water regulation have sought to rewrite the history of the Act and its implementation. Their revisionism seeks to obfuscate the intended scope of “waters of the United States” and dissuade the agencies from reaffirming the broad scope and purpose of the Act.

Jon Devine is a senior attorney with the Natural Resources Defense Council (NRDC). Joan Mulhern is senior legislative counsel with Earthjustice. Jan Goldman-Carter
is senior manager, wetlands and water resources for the National Wildlife Federation (NWF). Jim Murphy is senior counsel for water resources for the NWF. Rebecca
Hammer is an associate advocate with the NRDC. Jared Thompson is an associate at Hogan Lovells US LLP; he contributed to this Article as a legal fellow at the NRDC.

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