In his article, LaRue proposes that “navigable waters”—the jurisdictional term for classifying which waters are within the scope of the Clean Water Act, which ambiguously defines “navigable waters” as Waters of the United States or WOTUS—would better achieve the purposes of the CWA by encompassing all of the nation’s commercial waters. This interpretation, he asserts, would help ensure that the CWA is applied more consistently by the Environmental Protection Agency and the Army Corps of Engineers.
“The goal of the Clean Water Act is to restore and maintain the chemical, physical and biological integrity of the nation’s waters,” LaRue stated. “The CWA requires states to identify and list the navigable waters within their boundaries where water quality is a concern and then restrict the discharge of pollutants into navigable water. But Congress has never clarified the Act’s jurisdiction, which means the definition of the ‘navigable waters,’ and thus the scope of the CWA, is subject to change with each successive administration.”
Federal regulation designed to protect the nation’s waters dates back well over a century, beginning with statutes like the Rivers and Harbors Act of 1899. “Regulation was initially designed to protect the nation’s waters for interstate and foreign commerce,” LaRue said. “Then, as industrialization increased, regulations to address water pollution were introduced.”
The Clean Water Act, which regulates the discharge of pollutants into the nation’s waters, passed through Congress in 1972, but its jurisdiction has fluctuated during the time since, due in part to competing interests, according to LaRue. “The other issue is that the definition of navigable waters, and thus the assessment for which bodies of water are covered under the CWA, remains vague because Congress has never acted to clarify the definition,” he said.
LaRue provides an overview of the tortured history of federal water regulation in his article, describing the almost 50-year struggle by federal agencies and the courts to enforce and interpret the CWA absent a clear definition of “navigable waters” or WOTUS. Chief Justice John G. Roberts articulated the impact of this long-standing confusion in his concurrence in Rapanos v. U.S., a 2006 case challenging the CWA’s jurisdiction over isolated wetlands. “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act,” Roberts wrote. “Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”
LaRue concludes that, given the current political environment, Congress is unlikely to pass needed reforms to the CWA that could clarify the definitions of navigable waters or WOTUS. He proposes a simpler solution to protect and maintain the nation’s waters: that agencies and federal courts should apply the CWA through an interpretation of “navigable waters” that includes all waters used for commercial purposes. “This interpretation both respects the CWA’s origins in the Commerce power and achieves its environmental aims,” he said. “To protect our nation’s waters, its commerce and the well-being of its citizenry, the CWA’s jurisdiction must incorporate all economic aspects of water. This can be achieved if both agencies and courts interpret ‘navigable waters’ as including all commercial waters.”
The article, he says, grew out of a discussion in his Environmental Law class, taught by Michael Vanderbilt, who holds a David Daniels Allen Distinguished Chair of Law. “Professor Vandenbergh encouraged the class to come up with an alternative theory for the interpretation of ‘navigable waters,’” he said. “I took Professor Vandenbergh’s suggestion as a challenge. The most plausible theory I came up with was that ‘navigable waters’ should incorporate any body of water that is associated with commerce.”
“Matthew’s paper demonstrates that diligent research and creative thinking by law students can add valuable new ideas to some of the most difficult and contentious debates in environmental law,” Vandenbergh said.
“Water is one of our most precious resources, and fresh water is a limited resource,” LaRue said. “It doesn’t matter why we protect our waters, but if we fail to protect this priceless resource we will see catastrophic impacts to commerce, the economy, health and welfare, and life itself.”
“The Stream of Commerce” was published, along with other winners of the 2019 ABA Water Resources Law Student Writing Competition,” on the section’s website on Aug. 27, 2019