From the Fields of Runnymede to the Waters of the United States: A Historical Review of the Clean Water Act and the Term 'Navigable Waters'

摘要

This spring, the U.S. Supreme Court will be deciding two very important wetlands cases. In both, the Court is asked to decide whether the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency exceeded the bounds of the CWA by claiming jurisdiction over certain wetlands or, alternatively, whether such jurisdiction violates the Commerce Clause of the U.S. Constitution. As a preview to what the Court will find in determining the jurisdictional reach of the CWA, this Article examines the legislative history of the CWA and its various precursors, as well as the term "navigable waters." The authors conclude that the CWA, as enacted in 1972 and as amended in 1977, was intended to encompass all the nation's waters, including wetlands, with the exception of truly isolated intrastate waters.