Congress enacted the 1972 Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To achieve this goal, the CWA created a framework that uses Water Quality Standards, Total Maximum Daily Loads (TMDLs) for non-point source pollutants, and a system of permits that must be acquired before dredged or fill material can be discharged from a point source into navigable waters. These provisions were intended to create “a comprehensive approach to regulating pollution and improving the quality of the nation’s waters,” and to guide states towards national water quality goals.
Central to the CWA is its prohibition against “discharge of any pollutant by any person” into covered waters, subject to a series of exceptions. One of these exceptions, which is most frequently implicated in the context of wetland management and use, is section 404 of the CWA, which requires that:
Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced [is] required to have a permit [issued by the Army Corps of Engineers.]
Section 404 of the CWA has been referred to as “the centerpiece of federal wetlands regulation,” and as “the most significant federal regulatory scheme related to wetlands protection.” The Environmental Protection Agency (EPA) holds primary responsibility for administering the CWA. How-ever, section 404 of the CWA is co-administered by the Army Corps of Engineers. The substantive criteria used in determining when a section 404 permit should be granted are set out in regulations which the EPA and the Corps promulgate together, and the permit program is subsequently administered by the Corps alone. Additionally, the EPA has “veto” authority over the Corps’s permitting decisions, and both agencies have enforcement authority. The scope of the Corps and EPA’s jurisdiction is described as “navigable waters.” The CWA defines “navigable waters” cryptically, as “the waters of the United States, including the territorial seas.”
It has never been clear how wetlands fit into that category. Wetlands have been problematic in the context of section 404, in part because although a wetland has a biological and ecological identity, the term, as it is used in section 404, is “jurisdictional in nature, not scientific.” Only wetlands whose use affects interstate commerce are subject to CWA jurisdiction. The Corps traditionally asserted broad jurisdiction over wetlands, included: (1) wetlands that were used or could be used by migratory birds, and as such could affect interstate commerce (the “Migratory Bird Rule”); (2) wetlands that abutted surface watercourses, and; (3) wetlands adjacent to surface water courses.
Adjacent wetlands were broadly construed, as “areas inundated or saturated by surface or groundwater at a frequency and duration sufficient to support … a prevalence of vegetation typically adapted for life in saturated soil conditions.” This broad interpretation of the Corps’ jurisdiction over wetlands held sway with the Court until the mid nineties. For example, in the 1986 Riverside Bayview Homes case, the Court upheld the Corp’s jurisdiction over “marshy land” near Lake St. Clair in Michigan, on the theory that the property constituted an “adjacent wetland” under the Corps’ 1975 regulations. Noting that the Corps’ construction of the statute was “entitled to deference if . . . reasonable and not in conflict with the expressed intent of Congress,” the Court examined the legislative history of the CWA, and found that Congress had deliberately adopted an expansive definition of “waters” to reflect the broad underlying purposes of the CWA. Writing for the majority, Justice White’s observed that Congress had designed the CWA to “create a mechanism by which to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Citing the broad systemic purposes of the CWA, and acknowledging that evidence presented by the EPA demonstrated the close hydrological and ecological connections between wetlands and nearby waters, the Court determined that the Corps’s conclusion that section 404 applied to adjacent wetlands was reasonable.
Wetlands to Seasonal Puddles: SWANCC, Raich, and Rapanos
The Court’s 2001 decision in SWANCC was heavily influenced by its decisions in two Commerce Clause cases that, at that time, were relatively new. In United States v. Morrison and United States v. Lopez, the Court “reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited.” These decisions were highly relevant to the outcome in SWANCC because it was the commerce power that Congress relied on for the authority to regulate navigable waters through the CWA. The Court determined that the Corps’ use of the commerce clause to regulate isolated wetlands because they provided habitat to migratory birds “invoke[d] the outer limits of Congress’s power. In such a situation, the Court decided, the Army was required to provide a “clear indication that Congress intended that result,” and to demonstrate that a “significant nexus” existed between the isolated wetlands and “navigable waters.” The Court found that the required nexus was lacking in SWANCC, where the wetlands at issue were not directly adjacent to any waters covered by the CWA. The SWANCC decision thus eliminated CWA jurisdiction over “isolated, intrastate, non-navigable waters where the sole basis for asserting CWA jurisdiction is the actual or potential use of the waters as habitat for migratory birds.'”
In 2005, the Court broke the Lopez / Morrison trend towards a narrower Commerce Clause with its decision in Gonzales v. Raich. Raich involved California’s Compassionate Use Act (CUA), which permits the use of marijuana for medical purposes. The Act exempts from criminal prosecution those who possess or cultivate marijuana for medical purposes upon the approval of a physician. The respondents in Raich were using marijuana in accordance with the CUA but were nonetheless prosecuted under the federal Controlled Substances Act (CSA). The question for the Court was whether the provisions in the CSA prohibiting personal use of marijuana for medicinal purposes were valid exercises of Congress’s Commerce Clause authority. The Court held that the CSA was within the bounds of Congress’s commerce power. The majority distinguished Lopez, arguing that, unlike the Gun Free School Zone Act at issue in that case, the CSA “was a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of . . . ‘controlled substances.'” Although the respondents’ personal use of homegrown marijuana was concededly a purely intrastate activity, the Court found that the federal prohibition of this activity was part of “a larger regulation . . . in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Accordingly, the Raich Court upheld CSA jurisdiction over purely intrastate activities to be valid as an essential part of a broader regulatory scheme.
Even before Raich’s broad interpretation of the commerce power, lower courts had tended to interpret SWANCC narrowly; they read it as restricting the Corps’s jurisdiction over wetlands only where jurisdiction “turned solely on the potential presence of migratory birds.” In 2006, disagreement among the circuits as to the scope of SWANCC prompted the Supreme Court to grant cert on a pair Sixth Circuit decisions “that upheld federal jurisdiction over wetlands adjacent to non-navigable tributaries of navigable waters” – Rapanos and Carabell (consolidated) (“Rapanos.”).
The five opinions in the Rapanos expose sharp divisions among members of the Court about the scope of the CWA and leave some doubt as to the current state of the law. Writing for a four person plurality, and relying primarily on a 1954 edition of Webster’s New International Dictionary, Justice Scalia found that “[“waters of the United States’] includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features’ that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes.” He conceded that there was an “inherent ambiguity” in attempting to draw a line between water and land, and so he deferred to the Corps’ decision to include wetlands that actually abut “traditional navigable waters.” Beyond this, however, he refused to recognize the Corps’ authority. He wholly rejected the dissent’s claim that Congress acquiesced to the Corps’ rules, and that those rules merit deference under the Chevron doctrine. Regarding the issue of deference, he found that whatever ambiguity might exist with respect to the meaning of the phrase “waters of the United States,” it does not extend to “whether storm drains and dry ditches are “waters.'”
Rapanos was inconsistent with the underlying purpose of the Clean Water Act. A predicate of the Act … has been that clean water and related wetland values inhere to the entire nation and that a federal program is necessary to protect, restore, and maintain them.” The plurality adopted a strict textualist + selective use of dictionary approach, arguing that to allow the Corps the jurisdiction it sought would leave the term “navigable” without any significant meaning. It further asserted that the use of “waters” indicated that the statute refers only to relatively permanent waters such as oceans, rivers, lakes and other bodies of water which form more conventional geographic features.
This approach is problematic for at least two reasons. First, the plurality disregarded the substantial body of scientific evidence indicating that wetlands affect all the bodies of water in proximity to them, such that any jurisdictional separation between traditionally “navigable waters” and the wetlands near them is essentially meaningless. Second, the plurality ignored the fundamental and explicit goal of the CWA, to create a comprehensive scheme to maintain the integrity of the nation’s water systems as a whole, an objective requiring that wetland preservation be taken into account.
In addition, Rapanos is inconsistent with the Court’s 2005 decision in Raich. Although Rapanos deals with the reasonableness of the Corps’s interpretation of its jurisdiction under section 404 and not the constitutionality of section 404 itself, the Court addressed the Commerce Clause issue in dicta. According to the Rapanos plurality, “The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land.” The plurality argued that “the Corps’ interpretation stretches the outer limits of Congress’s commerce power and raises difficult questions about the ultimate scope of that power,” thus suggesting that Congress was without authority under the Commerce Clause to regulate wetlands adjacent to tributaries.
This view does not comport with the Court’s decision in Raich. In Raich, the Court explained that congressional regulation of intrastate activities was a valid exercise of Congress’s commerce power where it was an essential part of a comprehensive statutory framework regulating an activity which had substantial effects on interstate commerce. The use of the nation’s waterways for transportation and commerce, for the production of power and municipal water supplies, and for protecting ecological resources, plays a central role in interstate commerce and in the health of the national economy. Further, the dredge and fill activities regulated by section 404 are typically engaged in by “commercial actors for a commercial profit.” If the CWA cannot regulate the use of wetlands that have a hydrological connection to navigable waters, an essential mechanism for protecting the integrity of the nation’s waterways as whole. If the integrity of the nation’s waterways is not protected, activities that rely upon those waterways will be restricted to an unpredictable degree. The result could substantially, even catastrophically, affect interstate commerce.
Congress recognized that watersheds do not conform to political boundaries, and that the degradation of waterways, therefore, was necessarily an interstate matter. In response it promulgated the CWA. The CWA create a comprehensive framework for regulating point sources of water pollution so as to prevent these types of situations from arising. The Corps’s interpretation of its jurisdiction under section 404 of the CWA does not “push the outer limits of Congress’s commerce power,” but rather fits squarely within the conception of Congress’s authority advanced by the Court in Raich. Given the interconnected and cyclical nature of water systems, regulation of these wetlands is a federal matter, fully within Congress’s purview under the Commerce Clause.
Raich seemed to suggest that the Court was more prepared than it had been to accept this kind of broad conception of the commerce power. Raich was a marked departure from Lopez and Morrison. Arguably, it signaled a return to the Court’s anti-revisionist, deferential reading of federal authority over isolated, purely intrastate, activities, where such regulation served a broader legislative purpose. Even in light of the concerns about federal intrusion on areas of traditional state sovereignty, Raich suggests that “not all intrastate concerns traditionally reserved to state regulation should necessarily remain so, particularly where Congress has enacted a comprehensive statutory scheme.” Indeed, if Raich is to be reconciled with Lopez and Morrison, it must mean what it says: where Congress enacts a comprehensive framework for advancing a national purpose, and that purpose could be undercut unless intrastate activities are regulated, it is a valid exercise of the commerce power to regulate those activities. As it is difficult to imagine a more comprehensive statutory scheme than the framework for managing the nation’s waters set forth in the Clean Water Act, it seems that the Corps’ assertion of CWA jurisdiction in Rapanos should have received the same level of deference given to the CSA in Raich.
At a broader level, Rapanos is a case about the inherent conflict between the national need to preserve ecological resources, and local desires for the employment and tax revenue that comes from developing wetland real estate, on the other. This tension makes a strong case for a prominent federal role in wetlands protection. Yet local governments seem best equipped to understand local needs and the relationship between particular wetlands and local economies. At the very least, wetlands regulation could benefit with active participation from state and local governments. As the plurality noted, when one considers a hydrological model in which all wetlands affect the water bodies around them, “even the most insubstantial hydrologic connection may be held to constitute a ‘significant nexus.'”
In response to the Court’s decisions in Rapanos and SWANCC, Congress attempted to amend the CWA so as to give the Corps jurisdiction over isolated and adjacent wetlands, thus resurrecting the wetlands protection lost as a result of SWANCC. The 110th Congress intro-duced, but did not enact, the Clean Water Authority Restoration Act of 2009. The CWRA is currently under consideration by the 111th Congress. This bill would delete the term “navigable” from the CWA, codifying the Corps’s jurisdiction over “waters of the United States.”
This approach is misguided for several reasons. First, the Court’s dicta in Rapanos and its other recent CWA cases suggest that it might strike down such legislation as unconstitutional under the Commerce Clause. The decisions in Lopez and Morrison marked a distinct change in its Commerce Clause jurisprudence, suddenly curtailing a Congressional power that had ballooned without check for more than a hundred years. The Court’s decision in Raich did appear to reverse or at least limit that new trend, but the fact that the Court was unwilling to accept Corps jurisdiction in Rapanos, even after Raich, suggests that the Court is likely to apply a relatively narrow, Lopez-like reading of the Commerce Clause to an amendment like the CWRA, particularly to the extent that the amendment is justified under Congress’s power to regulate intrastate activities having a substantial effect on interstate commerce. In light of the Court’s reluctance to allow the kind of comprehensive authority necessary for a truly effective federal wetlands protection program, a legislative solution aimed at fostering the development of strong state wetlands protection programs may prove more effective than adding language to the federal statute.