The 'Waters of the United States' Rule and the Void-for-Vagueness Doctrine

The Heritage Foundation, No. 207, June 22, 2017

22 Pages Posted: 4 Oct 2017

Date Written: June 22, 2017

Abstract

Because the Clean Water Act imposes criminal sanctions for violation of its terms, agency rules interpreting those terms must be precise. The breadth and complexity of the EPA–Army Corps of Engineers Waters of the United States Rule exceed what the law can demand of a “person of ordinary intelligence,” but “waters of the United States” can be construed in a manner that is faithful to its Commerce Clause origins and readily applicable by the average person. That construction — a body of water that can be used by ark, raft, or boat to reach a traditional navigable water — allows the federal government to protect navigation and water quality without putting the average American at risk of violating the criminal law.

Keywords: Waters of the United States, Clean Water Act, void for vagueness doctrine

Suggested Citation

Larkin, Jr., Paul James, The 'Waters of the United States' Rule and the Void-for-Vagueness Doctrine (June 22, 2017). The Heritage Foundation, No. 207, June 22, 2017. Available at SSRN: https://ssrn.com/abstract=3046861

Paul James Larkin, Jr. (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)

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