THE MUDDIED TEXT OF THE CLEAN WATER ACT SPELLS TROUBLE AHEAD

by Sean G. Herman*

The Clean Water Act is in peril, and Congress must save it. As the Act becomes more inscrutable with age, a need for clarity drives this imperative. Developments in technology and statutory interpretation, together with increased litigation, animate this concern by highlighting ambiguities in the Act’s keystone provisions. And since the Act imposes criminal penalties, these ambiguities are running afoul of the Constitution by giving inadequate notice of the conduct it punishes.

As Congress has not legislated meaningful updates to the Act since 1987, presidential administrations have exploited these ambiguities. There are, of course, substantial disagreements about how the federal government should regulate water quality. But instead of resolving these differences through the forge of the legislative process, the debate’s extremities reach society through each new administration’s increasingly substantial shift in executive action. As Congress fails to act while the judiciary defers to agencies, the executive branch is in many respects the controlling authoritative body that determines and enforces the Act’s central provisions.

This accumulation of power seems at odds with the rise of textualism, the primary device for interpreting statutes. Through textualism, courts are growing concerned about "elephant-sized" regulations based upon "mousehole-sized" ambiguous statutes. This presages trouble for continued regulation under the Act’s current language.