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Golden Gate University Environmental Law Journal

Abstract

The Clean Water Act has traveled a successful but tortuous path. From combustible beginnings on the Cuyahoga River; through the Lake St. Clair wetlands; to reservoirs near the Miccosukee; and eventually discharged (or “functionally” discharged) off the Maui coast. With each bend, the nearly fifty-year-old Act has proven to be not just resilient, but among our most successful environmental laws. Much of that success stems from an effective enforcement structure that focuses more on treating pollutant sources rather than just impaired waters. The text creating that structure has largely remained untouched by Congress for decades.

This article begins by posing a thesis: The Clean Water Act regulates all “waters of the United States.” It then suggests a two-part antithesis: Congress violated the nondelegation and void-for-vagueness doctrines by defining the Clean Water Act only as reaching “waters of the United States.” And it resolves the conflict with a synthesis: a call for Congress to amend the Clean Water Act by providing the statute with a more stable and intelligible jurisdictional reach. Federal oversight in water quality regulation is a necessity. But to what degree is a policy decision that Congress has yet to make.

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