CHAPTER 3 Waters of the United States (How Many Drops Does It Take)
| Jurisdiction | United States |
(Jan 2002)
Waters of the United States (How Many Drops Does It Take)
Van Cott, Bagley, Cornwall & McCarthy
Salt Lake City, Utah
I INTRODUCTION
Three decades ago, Congress enacted the Federal Water Pollution Control Amendments1 establishing the "comprehensive program for controlling and abating water pollution"2 we now call the Clean Water Act.3 Intended to restore and maintain the quality of the Nation's waters,4 the Clean Water Act prohibits unauthorized discharges of pollutants into the "waters of the United States."5 This paper examines the meaning of that phrase, as originally written by Congress, defined by the regulatory agencies, and ultimately interpreted by the courts.6
Thirty years of litigation has sharpened the debate but not resolved the lawful limits of the "waters of the United States" and the jurisdictional scope of the Clean Water Act. In recent years, inquiry has focused on the extent to which Clean Water Act jurisdiction may extend to isolated waters that are not and could never be commercially navigable. The question of federal regulatory authority over isolated nonnavigable waters is of concern not only in the more humid, water-laden areas of the United States, but also in the semiarid and mountainous West, with its own great interstate river systems and, more uniquely, a variety of isolated, intrastate waters, such as wet alpine meadows, vernal pools, intermittent and ephemeral stream channels, and playa lakes fed by radial drainage systems unconnected to any navigable water.
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The confusion over the jurisdictional reach of the Clean Water Act arises directly from the sparse definitional language of the Clean Water Act regarding the intended scope of "waters of the United States." In broadly stating the objectives of the Clean Water Act, Congress referred to the "Nation's waters,"7 but offered no explanation of the intended reach of such waters. In the body of the Act, Congress chose, instead, the historical jurisdictional term "navigable waters." From this choice of terminology, some argued that Congress intended the scope of regulated waters under the Clean Water Act be construed in light of traditional legal concepts of navigability.8 Nevertheless, in expressly defining "navigable waters" in the Act, Congress used no reference to navigability, and simply defined such waters as the "waters of the United States, including the territorial seas."9 The absence of any further reference to navigability or "even some hint of concern for protecting navigation" leads others to conclude that Congress did not intend to limit Clean Water Act jurisdiction to only those waters somehow connected to navigable waters.10
The recent decision of the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC")11 roiled the legal seascape by limiting the extent to which the Clean Water Act may reach nonnavigable waters and wetlands, not connected or adjacent to traditionally navigable waters. The Court invalidated the agencies' so-called Migratory Bird Rule,12 which provided that use by migratory waterfowl was a sufficient jurisdictional nexus with interstate commerce to bring nonnavigable, isolated, wholly intrastate waters under the regulatory ambit of the Act. The court held that Congress never intended to extend Clean Water Act jurisdiction to such waters solely on the basis they provided habitat for migratory waterfowl. In doing so, the court raised serious questions as to whether and to what extent Clean Water Act jurisdiction may reach beyond navigable water systems, their tributaries, and adjacent wetlands. The Court stopped short, however, of defining either the outer limits of Clean Water Act jurisdiction or the ultimate extent of Congress' authority to regulate waters in particular or the environment in general.13
In an earlier decision, the Supreme Court suggested, somewhat simplistically, that the regulatory task of determining the jurisdictional limits of the Clean Water Act is one of choosing "some point at which water ends and land begins."14 As the court acknowledged, however:
this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and
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dry land may lie shallows, marshes, mudflats, swamps, bogs-in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of "waters" is far from obvious.15
In SWANCC, however, the court did not take such a simplistic approach and, seemingly, muddied the waters of Clean Water Act jurisdiction by raising more questions than it resolved.16 The court arguably refocused the jurisdictional inquiry onto the proper scope of traditionally navigable waters and waters somehow associated with them, rather than on the extent of Congress' authority under the Commerce Clause to regulate interstate commerce.17 Thus, SWANCC may be broadly read as killing any use of the Migratory Bird Rule, and limiting "waters of the United States" to traditionally navigable waters and only those other waters, including tributaries and wetlands, which are connected or adjacent to them. This approach would preclude regulation of nonnavigable, isolated, wholly intrastate waters, and call into question the regulatory status of navigable-in-fact, wholly intrastate waters which do not meet the traditional test for navigable waters of the United States by forming "by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries."18
On the other hand, the decision may be read much more narrowly. Certainly, the regulatory agencies do so. As explained more fully below, EPA and the Corps have long espoused the broad interpretation that even nonnavigable, isolated, wholly intrastate waters are subject to regulation if their "use, degradation or destruction could affect interstate commerce."19 The Migratory Bird Rule was just one corollary to their basic theorem.
The agencies' initial post-SWANCC, but pre-inaugural, guidance issued shortly after the decision was published indicates they don't read the decision as changing or resolving much of anything.20 In effect, they narrowly read SWANCC as simply shooting down the Migratory Bird Rule as a sole basis of jurisdiction, but only winging it as one of many possible connections a water may have to interstate commerce, which collectively may give rise to jurisdiction.21 This approach would have little impact and only retract their regulatory reach from those isolated waters which have no connection to interstate commerce other than use by migratory birds.
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Whatever SWANCC did, it did not define the outer limits of "waters of the United States" or clearly define the proper inquiry for doing so. It did, however, refocus the starting point of the inquiry on the fundamental role of traditional concepts of navigability.
II. THE ROLE OF NAVIGABILITY
The Clean Water Act is not a navigational statute. 22 It protects water quality.23 Congress defined "navigable waters" in the Clean Water Act as the "waters of the United States, including the territorial seas," with no further reference to or requirement of navigability.24 A fundamental question, therefore, is the extent to which navigability bears on the scope of "waters of the United States" under the Clean Water Act.
A. Congressional Authority over Navigable Waters
Nothing in the United States Constitution explicitly addresses navigable waters or defines the power of the federal government over such waters. That power arises from the Commerce Clause25 :
The power of the United States over waters which are capable of use as interstate highways arises from the commerce clause of the Constitution.... It was held early in our history that the power to regulate commerce necessarily included power over navigation. Gibbons v. Ogden, 9 Wheat, l, 189 [1824]....26
In its recent pronouncements on Commerce Clause jurisprudence, the Supreme Court has identified three broad categories of activity that Congress may regulate under its commerce power:
1. Congress may regulate the use of the channels of interstate commerce;
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2. Congress may regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and,
3. Congress may regulate those activities that substantially affect interstate commerce.27
The authority of Congress to regulate and protect the navigable capacity of navigable waters under the Rivers and Harbors Act would obviously arise under the first category, i.e., authority to regulate the use of the channels of interstate commerce. The Clean Water Act, of course, is more than a navigational statute. Thus, it is argued that the full extent of the regulatory authority asserted by Congress under the Clean Water Act exceeds that provided under the first category and must necessarily draw on the third category, i.e., authority to regulate activities which substantially affect interstate commerce.28 Accordingly, the navigability of waters is arguably irrelevant to the interpretation of Clean Water Act jurisdiction, and the focus should, instead, be directed at the substantial effect pollution and polluting activities may have on interstate commerce.29 Put another way, should the inquiry into the lawful scope of "waters of the United States" go no further than defining the reach of navigable waters and those waters associated with them or should it be extended to include other waters based on the activities conducted upon them and the substantial effects of those activities on interstate commerce?30
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