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A New Clean Water Act

March 2007

Citation: ELR 10171

Author: Paul Boudreaux

Editors' Summary: The Supreme Court's new federalism has struck its strongest blows so far on the CWA. Last summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act's protection of wetlands and other small waterways--five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the CWA been the Court's favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover "navigable waters," but its practical definition has never been clear. The result is a statutory and jurisprudential mess, with lessons that extend across issues of constitutional law, statutory construction, and, of course, federalism. Paul Boudreaux proposes in this Article to revise statutory language in order to revive the CWA. He suggests jettisoning the Act's reliance on the misguided term "navigable waters" and advocates that, instead, the statute should directly regulate activities that substantially affect interstate commerce, such as fisheries, migratory birds, floods, and agriculture. An Act whose limits are tied to the law of the commerce power would be shielded from the federalist ax.

Paul Boudreaux is an Associate Professor at Stetson University College of Law, Gulfport and Tampa, Florida. He earned his J.D. from the University of Virginia and his LL.M. from Georgetown University. This Article was supported by a grant from Stetson. The author thanks his colleague, Prof. Royal C. Gardner, for comments on an earlier version. The author once litigated CWA cases for the U.S. Department of Justice.

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