Research & Commentary: The Clean Water Act

Published September 23, 2014

After creating the Environmental Protection Agency (EPA), Congress passed numerous landmark environmental laws, including the Clean Water Act (CWA), which achieved a bipartisan majority in 1972.

The stated goals of CWA are to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and make “all waters … fishable and swimmable where possible.” The CWA does this by establishing a baseline structure for discharge of pollutants into the waters of the United States. For example, under the CWA, it is unlawful to discharge any pollutant into U.S. waters without a permit. The permits are authorized using “across-the-board technology-based controls for municipalities and industry.”

Such a baseline for regulatory action demonstrates the primary inefficiency of the CWA: There is no way to determine scientifically what the correct standard of water quality is, given people’s variable tolerance of risk. Moreover, there is no fair justification for erring toward those who prefer tighter water quality restrictions without infringing on someone else’s preference for a greater manufacturing sector, etc.

Although the CWA has contributed to improvements in water quality, so have technological progress, voluntary initiatives, and economic prosperity. Unlike the latter three environmental contributors, the CWA has major unintended consequences. The confusing jurisprudence around the law has allowed EPA to get away with very expansive interpretations, leading to some of its most notorious cases of property rights abuse. These include the case of an Idaho couple EPA ordered to immediately stop development of their land and restore it to its “original state” or be subjected to a $37,500 fine per day. EPA said their property was a wetland, even though the couple had had no reason to believe that was the case and had been given all necessary clearances by the Idaho state government.

In May 2013, a group of U.S. senators introduced the “Defense of Environment and Property Act of 2013,” which would rein in EPA’s power by better defining the terms for what constitutes federal jurisdiction. The bill was referred to the Senate Committee on Environment and Public Works and stalled there.

Heavy-handed enforcement of wetland protection without compensating property owners merely provides disincentives for proper conservational stewardship. Congress should repeal Section 404 of the Clean Water Act, which empowers EPA to regulate wetlands, and replace it with a federal biological trust fund that uses general revenue to purchase easements from property owners to protect wetlands.

The following documents provide additional information about the Clean Water Act.


Ten Principles of Energy Policy
Heartland Institute President Joseph Bast outlines the ten most important principles for policymakers confronting energy issues, providing guidance to help deal with ongoing changes in markets, technology, and policies adopted in other states, supported by a thorough bibliography. 

The Clean Water Act: Protecting and Restoring our Nation’s Waters
The Environmental Protection Agency provides an overview of the Clean Water Act, its background, the goals it was intended to accomplish, and how EPA plans to accomplish those goals. 

Stopping the EPA from Regulating Puddles
Constitutional scholar Ilya Shapiro notes EPA’s loose interpretations of the Clean Water Act have led to some of the agency’s biggest abuses of property rights. A bill introduced by Republican senators would tighten the law’s jurisdiction and thus prevent it from leading to property rights abuse. Shapiro concludes such a bill could benefit numerous people directly and quickly. 

The Clean Water Act: 40 Years of Inefficient Solutions
David Currie, a research associate at the Property and Environment Research Center, notes the Clean Water Act has led to billions of dollars being spent on water quality improvement and argues the multibillion-dollar price tag isn’t as much of a problem as the intrusive regulatory structure. 

Sen. Paul Introduces Defense of Environment and Property Act of 2013
In a press release announcing the introduction of a bill to reform the Clean Water Act, U.S. Sen. Rand Paul (R-KY) says the legislation balances environmental protection with the constitutional right to private property. 

A Reconsideration of Environmental Federalism
In a 2001 paper for Resources for the Future, University of Maryland economist Wallace Oates argues states should be responsible for the water quality standards within their borders. Oates describes a potentially useful framework for determining the appropriate level of government at which a given problem should be regulated.


Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Environment & Climate News Web site at, The Heartland Institute’s Web site at, and PolicyBot, Heartland’s free online research database, at

The Heartland Institute can send an expert to your state to testify or brief your caucus; host an event in your state; or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Logan Pike, Heartland’s state government relations manager, at [email protected] or 312/377-4000.