The Clean Water Act: What's Commerce Got to Do With It?

I. Introduction

Few commentators doubt the value of clean, unadulterated waters teeming with varied and colorful aquatic life. The debate centers instead on more pragmatic concerns, that is, how to best accomplish the accepted imperative. Some maintain that the primary responsibility should fall on the federal government because of its insularity from regional economic and political pressures.¹ Others suggest that states should take the lead because of their familiarity with and ability to respond to local environmental concerns.² Both sides have valid points. The fundamental question, however, is not whether the states or Washington is better positioned to protect the environment, but which part of the federalist structure has authority to regulate in this area.

This inquiry is necessary because our republic rests upon purposeful divisions of power.³ "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front."⁴ For that reason, the federal government was granted a limited number of specific powers and the balance left to the states.⁵