Volume 20

The Clean Water Act and the Void-for-Vagueness Doctrine

by Paul J. Larkin

The Clean Water Act (CWA) seeks protect “the chemical, physical, and bio-logical integrity of the Nation’s waters.” To do so, the act uses administrative, civil, and criminal sanctions to penalize the unpermitted discharge of a pollutant into the “navigable waters,” which the act defines as “the waters of the United States.” The availability of criminal punishments as an enforcement tool, however, creates a severe problem for the interpretation and constitutionality of the CWA. The Void-for-Vagueness Doctrine requires that all criminal laws be readily understandable by an “average person”—viz., a person without the advanced education possessed by experts in fields such as hydrology, bot-any, or law. The term “waters of the United States” is hopelessly vague, as several justices of the Supreme Court of the United States have noted. The vagueness of that that term cannot be ignored or quarantined. It is a linchpin of the entire CWA, and statutes must receive a uniform interpretation regardless of the nature of an enforcement proceeding. The implementing rules proposed by the Environmental Protection Agency and U.S. Army Corps of Engineers cannot remedy the vagueness of the statute and, in any event, they only aggravate the problem. The agencies’ definition requires a person to possess an advanced degree to understand how the CWA applies, as well to undertake an enormously burdensome, expensive, and potentially inconclusive scientific fact- finding investigation of an entire watershed to know what is prohibited by this criminal law. The Void-for-Vagueness Doctrine does not allow Congress to impose such an impossible burden on the average person. To remedy the problem, the Supreme Court has three options: First, it could prohibit any criminal enforcement of the CWA. Second, it could adopt what I have called a “Canoe Rule” to interpret the CWA—viz., only those water bodies that in fact connect to an interstate waterway and can be traversed by a canoe fall within the term “waters of the United States.” Third, it could adopt a Mistake of Law Defense to prevent an innocent person from unknowingly breaking the law. What the Court should not do is leave unaddressed the Void-for-Vagueness Doctrine infirmity in the CWA.

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