Essay About Congresss Intent And Scope Of The Clean Water Act1

Clean Water Act
Essay Preview: Clean Water Act
Report this essay
Two badly divided Supreme Court rulings on the scope of the Clean Water Act1 have left
lower courts, legal scholars, federal agencies, environmental activists, and developers to grapple
with difficult practical questions: Are so-called “isolated” or remote wetlands still covered by the
Act? What about headwater streams and similar tributaries, and other waters that are vitally
important, but may be miles away from larger lakes, rivers, and estuaries, or run intermittently or
seasonally? When do non-navigable–but ecologically critical–streams and wetlands fall under
federal jurisdiction?
As a legal matter, determining which water bodies are protected by the Clean Water Act
depends on two things: first, Congresss intent in passing the Act, as determined from the Acts
language, structure, and legislative history; and second, the meaning and scope of the
constitutional provisions that give Congress power to legislate to protect the nations waters. The
key Supreme Court decisions on Clean Water Act jurisdiction have been concerned with only the
first of these two considerations: attempting to divine the intent of Congress when it passed the
modern Clean Water Act in 1972 and amended it in 1977 and 1987.
But what if Congress were to resolve this question of “intent” once and for all by again
amending the Clean Water Act, this time to make clear that Congress intends to protect the
nations waters to the fullest extent of its legislative power under the Constitution? Legislation
that would accomplish such clarification has now been introduced in both chambers of the 110th
Congress.2 This Issue Brief identifies the constitutional powers Congress can rely on to protect
waters nationwide, and discusses what the Supreme Court has said about these powers. The
following analysis is intended to inform the debate on the fundamental–but often
misunderstood–area of law where protection of the nations waters meets the Constitution.
II. Overview of Congresss Constitutional Sources of Power To Protect the Nations Waters
The Constitution makes no express grant of power to regulate the nations waters.
However, the Constitution does vest in Congress powers that for many years Congress has
successfully used to address issues that are national in scope–including management of
waterways, flood control, and water pollution. These powers, together with Congresss
additional authority to employ all “necessary and proper” means of carrying them out, form the
constitutional basis on which Congress has legislated, and can continue to legislate, a
comprehensive program of protection for all the nations waters, including its many streams and
wetlands.
* The authors are Senior Attorneys at the Environmental Law Institute.
1 33 USC §§ 1251-1387
2 H.R. 2421 & S. 1870 (Clean Water Restoration Act of 2007).
Traditionally, Congresss most important power for purposes of environmental protection
has been the power to regulate interstate commerce, granted exclusively to Congress by the
Commerce Clause of Article I, Section 8, of the Constitution. This broad power–which includes
Congresss authority to regulate activities, even