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From the Fields of Runnymede to the Waters of the United States: A Historical Review of the Clean Water Act and the Term "Navigable Waters"

March 2006

Citation: 36 ELR 10190

Issue: 3

Author: William W. Sapp, Tracy L. Starr, and M. Allison Burdette

Editors' Summary: This spring, the U.S. Supreme Court will be deciding two very important wetlands cases. In both, the Court is asked to decide whether the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency exceeded the bounds of the CWA by claiming jurisdiction over certain wetlands or, alternatively, whether such jurisdiction violates the Commerce Clause of the U.S. Constitution. As a preview to what the Court will find in determining the jurisdictional reach of the CWA, this Article examines the legislative history of the CWA and its various precursors, as well as the term "navigable waters." The authors conclude that the CWA, as enacted in 1972 and as amended in 1977, was intended to encompass all the nation's waters, including wetlands, with the exception of truly isolated intrastate waters.

Mr. Sapp received his B.A., summa cum laude, from St. Lawrence University in 1987; his J.D. from Harvard Law School in 1990; and his LL.M. in environmental law, with highest honors, from George Washington University in 1995. He is currently the lead wetlands attorney for Region 4 of the U.S. Environmental Protection Agency (EPA). This Article expresses only the personal views of Mr. Sapp and does not necessarily reflect the official positions of the EPA. Ms. Starr is currently a second year law student at Georgia State University in Atlanta, Georgia, and works for Andrews, Knowles & Princenthal, LLC. Ms. Starr received her Masters, magna cum laude, with a concentration in Environment and Development from American University in 1997; and her B.A. from Clemson University in 1991. Ms. Burdette received her B.A., with highest honors, from the University of Tennessee in 1986 and her J.D. from Harvard Law School in 1989. She is an Assistant Professor in the Practice of Business Law at Emory University's Goizueta Business School where she has been teaching since 1999. We thank the following individuals for their assistance on this Article: West Gregory, Buddy Meyers, Mark Ryan, Stephen Samuels, and Tamara Watson.

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