The Shifting Boundaries of Clean Water Act Jurisdiction

Abstract

As a presidential candidate, Donald Trump promised to figuratively drain the ethical swamp of Washington. This has not come to pass. But as president, he has ordered regulatory changes that, if implemented, would result in the actual draining of swamps and other wetlands. These regulatory changes also may not come to pass—at least not right away. The Clean Water Act (CWA) (33 U.S.C. §1251 et seq.) is the primary wetland protection law in the United States. If a wetland qualifies under the CWA as “waters of the United States”—often referred to as WOTUS—no one may discharge pollutants into that wetland without a federal permit. As of mid- September 2018, the precise authority of the federal government to regulate wetlands under the CWA exists in a muddled state.