2007 Restoration Act
A reflection of lawmaker intent or a commerce clause showdown?
- By Jason V. Turner
- Dec 03, 2007
The Cuyahoga River burned in 1969.
Although the fire lasted only 30 minutes,
the oil-slick that was the Cuyahoga,
along with similarly degraded
waterways across the country,
showed that the states were failing to protect the
health and vitality of the nation’s waters. Congress
reacted with the passage of the Federal
Water Pollution Control Act Amendments of
1972 (CWA).
This CWA forbids the addition of a pollutant
(which has been defined to include nearly
any substance) into the “navigable waters” of
the U.S. without a permit. Thus, federal agencies
have jurisdiction under CWA only when
the waters are “navigable,” and the definition of
“navigable waters” has become a focal point for
interests that would like to minimize the reach
of CWA. A recent U.S. Supreme Court decision,
Rapanos v. United States, did little to clarify
the jurisdictional dispute.
Clean Water
Restoration Act of 2007
The restoration bill introduced by U.S. Rep.
James Oberstar (D-Minn.) proposes to “reaffirm
the original intent of Congress” in enacting
the 1972 legislation. The Oberstar amendment
would apply CWA jurisdiction to:
[A]ll waters subject to the ebb and flow of
the tide, the territorial seas, and all interstate
and intrastate waters and their tributaries
including lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa
lakes, natural ponds, and all impoundments
of the foregoing, to the fullest extent that these
waters are subject to the legislative power of
Congress under the Constitution.
At the time of this writing, the bill garnered
the support of 169 cosponsors and, if passed,
would remove all references to “navigable water”
from CWA and replace them with “waters of
the United States.” A companion bill (S 1870),
offered by Sen. Russ Feingold (D-Wis.) and 19
cosponsors, contains the same provisions.
Section 502 of CWA defines the term “navigable
waters” as “the waters of the United
States, including the territorial seas” and this
term has defined federal authority and control
over intrastate and interstate water for well
over 125 years. The Daniel Ball case decided
by the Supreme Court in 1870 declared that
“navigable rivers in law . . . are navigable in fact”
and used this as a basis for its decision upholding
the Commerce Clause authority of the
United States to license vessels carrying goods
on the Grand River in Michigan that were destined
for other states.
Given the scope of CWA—to eliminate all
pollutants from the nation’s waters—it is unreasonable
to assume that Congress, in passing the
act, had the limited definition of navigability
enunciated in the Daniel Ball case in mind.
The Oberstar-Feingold definition appears
to resurrect the definition enunciated by federal
district courts in early CWA jurisprudence—
and then go beyond it. In 1975, the
U.S. District Court for the District of Columbia
ruled in Natural Resources Defense Council
v. Callaway that in enacting CWA, Congress
had asserted federal jurisdiction over the nation’s
waters to the “maximum extent permissible
under the Commerce Clause.” After the Callaway
case, the agencies adopted a broad interpretation
of their authority. And, for the most
part, the U.S. Army Corps of Engineers’ interpretation
has been given deference by reviewing
courts. However, in 2001 the Supreme
Court issued its opinion in Solid Waste Agency
of Northern Cook County v. U.S. Army Corps
of Engineers (SWANCC).
Migratory birds find
their way into commerce
Almost everyone now is familiar with the issue
in SWANCC: could the Corps maintain jurisdiction
over abandoned sand and gravel pits in
Illinois that had become permanent and seasonal
ponds frequented by migratory birds?
The legal “hook” for the Corps was that its jurisdiction
must extend to such waters, even if they
were intrastate, because migratory birds crossed
state lines. The Commerce Clause is premised
on interstate activities, and migratory birds cross
state lines, therefore, birders (and others engaged
in commerce, however minimal) can be presumed
to cross state lines.
The Supreme Court in SWANCC refused
to read the term “navigable” as broadly as the
Corps, imposing instead a more limited interpretation
of the Corps’ jurisdiction. The court
held that the authority of Congress under the
Commerce Clause was broad and conceded that
jurisdiction under CWA was more expansive
than traditional notions of navigability, but it
was not without limitation. The court failed
to see a congressional mandate under Section
404 that would allow jurisdiction over two abandoned
sand and gravel pits in an Illinois county
whose only connection to navigable waters
and interstate commerce was the fact that they
provided habitat for migratory birds.
More recently, the Supreme Court in
Rapanos v. United States had the opportunity
to determine whether wetlands (lying near
engineered ditches and drains) that eventually
emptied into navigable-in-fact waters were
subject to the Corps’ 404 jurisdiction. Unfortunately,
this opinion did little to determine
the jurisdictional scope of CWA because of significant
splits within
the court.
There were five
opinions in this case,
but only three warrant
further discussion:
the first opinion
was joined by
four justices (Justice
Scalia, Chief Justice
Roberts, and Justices
Thomas and Alito)
and held that the
engineered conduits
that carried intermittent
flows were
beyond the scope of
navigable waters as
defined by CWA
and, therefore, wetlands
adjacent to these remote waters were
beyond the Corps’ jurisdiction. The second,
and dissenting opinion, endorsed by four justices
(Stevens, Souter, Ginsberg, and Breyer)
would have had the case come out the other
way: that the engineered conduits and adjacent
wetlands were “navigable waters” and thus
supported exercise of Corps’ jurisdiction. As is
so often the case in Supreme Court jurisprudence
these days, Justice Kennedy authored
his own opinion, and effectively decided the
case. Kennedy’s opinion called for a case-bycase
determination of whether the waters in
question have a “significant nexus” to waters
that are navigable-in-fact. Effectively, agencies
will have to apply the Kennedy “significant
nexus” test every time there is a question about
CWA jurisdiction.
Does the restoration bill solve the problem?
No. As noted above, the Rapanos case does not
put to rest the jurisdictional quagmire surrounding
CWA. The stakes are real. As Justice
Scalia noted in his opinion in Rapanos, the burden
of the federal regulation on those involved
is significant in both time and expense. In addition,
fines associated with unpermitted discharges
can be as much as $27,000 per day,
leaving the undefined state of the law even
more troublesome. Moreover, the requirement
to obtain Section 402 or 404 permits, in
essence, federalizes the activity, raising the
potential for additional requirements under
the National Environmental Policy Act, the
Endangered Species Act, and the Fish and
Wildlife Coordination Act.
Likewise, Justice Kennedy’s case-by-case
determination gives little certainty to parties planning
projects that may implement Section 404
permitting. The Rapanos decision has also made
it hard for the agencies to adopt meaningful
guidelines and rules for CWA permitting.
While the restoration bill would remove
many of the definitional ambiguities, its removal
of “navigable waters” altogether—and thus
the act’s Commerce Clause underpinnings—is
likely to unveil yet another stage for conflict.
Congress cannot confer more authority on federal
agencies than it has to confer under the Constitution.
Although the Commerce Clause has
provided a wide net capable of supporting the
weight of numerous federal regulations, the decisions
in Rapanos may indicate that the current
Supreme Court would not support such a broad
interpretation of CWA jurisdiction.
This article originally appeared in the 12/01/2007 issue of Environmental Protection.
About the Author
Jason V. Turner practices with the law firm of White & Jankowski, LLP in Denver. He assists clients in the areas of water rights, water quality, and administrative law.