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

• Author: Paul J. Larkin
• Position: John, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation; M.P.P. George Washington University, 2010; J.D. Stanford Law School, 1980
• Pages: 639-669

The Clean Water Act and the Void-for-Vagueness

Doctrine

PAUL J. LARKIN*

ABSTRACT

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 pollu-

tant 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 constitution-

ality 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 sev-

eral 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 aggra-

vate 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 prob-

lem, 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 in-

firmity in the CWA.

* John, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation; M.P.P.

George Washington University, 2010; J.D. Stanford Law School, 1980; B.A. Washington & Lee

University, 1977. The views expressed in this Article are the author’s own and should not be construed

as representing any official position of The Heritage Foundation. I am grateful to Daren Bakst,

GianCarlo Canaparo, Todd Gaziano, John G. Malcolm, Damien M. Schiff, and Zack Smith for helpful

comments on an earlier iteration of this Article. I also want to thank Anthony Truisi for valuable research

assistance. Any errors are mine. © 2022, Paul J. Larkin.

639

TABLE OF CONTENTS

INTRODUCTION ............................................ 640

I. CONFUSION OVER THE MEANING OF THE “WATERS OF THE UNITED

STATES”............................................ 641

II. THE “WATERS OF THE UNITED STATES”..................... 644

III. THE VOID-FOR-VAGUENESS DOCTRINE ...................... 650

IV. INTERPRETING THE “WATERS OF THE UNITED STATES”.......... 651

A. Can Agency Rules Salvage a Vague Criminal Law? . . . . . . . . 651

B. The Vagueness of the Term “Waters of the United States”... 656

V. REMEDIES FOR UNCONSTITUTIONAL VAGUENESS .............. 663

A. Remedy 1: Bar Only Criminal Enforcement . . . . . . . . . . . . . . 663

B. Remedy 2: Adopt a Canoe Rule . . . . . . . . . . . . . . . . . . . . . . . 666

C. Remedy 3: Adopt a Mistake of Law Defense . . . . . . . . . . . . . . 668

CONCLUSION.............................................. 668

INTRODUCTION

Congress passed the Clean Water Act (CWA) to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.”

1

To do so,

the act requires parties to obtain a permit before discharging a pollutantinto “nav-

igable waters,”

2

which the act defines, without further elaboration, in relevant

part as “the waters of the United States.”

3

Violations are subject to civil (includ-

ing administrative) penalties and criminalpunishments.

4

That last fact gives rise to a problem. The term “waters of the United States”is

hopelessly vague, as several Justices of the Supreme Court of the United States

have noted. To implement and clarify the meaning of that term, in 2015 the

1. 33 U.S.C. § 1251(a) (2018). The CWA is the colloquial label given to the Federal Water Pollution

Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq. (2018).

2. 33 U.S.C. §§ 1311(a), 1344(a); U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590, 594

(2016). The National Pollutant Discharge EliminationSystem (“NPDES”) program authorizes the EPA or

an approved state agency to issue a pollution-discharge permit. 33 U.S.C. §§ 1342(a)(1), (b). NPDES permits

address point-source discharges (e.g., pipes) by defining permissible rates, concentrations, and quantities

of specified pollutants, as well as other appropriate limitations and conditions. 33 U.S.C. § 1342(a)(1)–(2);

40 C.F.R. §§ 122, 125 (2016).

3. 33 U.S.C. § 1362(7).

4. 33 U.S.C. §§ 1319(b), 1319(c), 1319(g).

640 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 20:639