SWANCC's clear statement: a delimitation of Congress's commerce clause authority to regulate water pollution.

• Author: Baumgartner, Matthew B.
• Position: Solid Waste Agency of Northern Cook County

TABLE OF CONTENTS INTRODUCTION I. THE NAVIGABLE WATERS DOCTRINE AS A CHANNELS-OF-COMMERCE POWER II. CONGRESS'S AUTHORITY TO REGULATE WATER POLLUTION UNDER THE CHANNELS-OF-COMMERCE POWER IS WELL-SETTLED AND BROAD IN SCOPE A. Toward a Hydrological Connection Test B. Restrictive Interpretations of the Navigation Power Unduly Restrict Federal Jurisdiction over Channels of Commerce III. STRUCTURAL FEDERALISM CONCERNS IN THE WATER POLLUTION CONTROL ARENA A. Water Pollution Regulations Are Properly Considered Environmental Laws as Distinct from Land Use Regulations B. The First Principles of Interstate Commerce Clause Jurisprudence Support Federal Regulation of Water Pollution IV. ECONOMIC OR NONECONOMIC: POTENTIAL REGULATION OF WATER POLLUTION UNDER THE SUBSTANTIAL EFFECTS DOCTRINE WOULD SATISFY THE LOPEZ STANDARD A. Wetland Protections Regulate Economic Activity B. Upholding Federal Wetland Regulations Does Not Require Attenuated Reasoning INTRODUCTION

Perhaps the most controversial aspect of federal water pollution law is wetland regulation. (1) Wetlands are typically marshy or swampy areas with hydrologic soils and vegetation. Their ecological value is widely recognized, (2) but wetlands often stand in the way of lucrative commercial development projects. (3) Thus, the battle over the validity of federal wetland regulation is a classic fight between environmentalists and industry. (4) The wetlands controversy is also paradigmatic of the perpetual struggle to define the constitutional limits to federal regulation.

The country's main water pollution control law, the Clean Water Act (CWA), purports to regulate all "navigable waters," (5) which it defines as "waters of the United States." (6) Although wetlands are not themselves navigable, section 404 of the CWA requires obtaining a federal permit from the Army Corps of Engineers ("the Corps") before discharging "dredged or fill material" (7) into wetlands. The permit requirement applies to individual property owners and commercial developers alike, (8) and is therefore a significant impediment to development projects that involve wetlands. (9) In addition, critics have always maintained that Congress's regulatory power does not extend to isolated wetlands because they are not navigable. (10)

The Federal Government's constitutional authority to regulate water pollution arises from the Interstate Commerce Clause. (11) Historically, Congress's power over waters was tied to the national need to regulate navigation as an aspect of commerce. (12) This authority has come to be known as the "navigable waters doctrine" and was expanded by Congress early on to serve environmental goals. (13) In fact, Congress's authority under the doctrine to regulate pollution of navigable-in-fact waters--waters that are actually navigable, as distinguished from "navigable waters," which has become a term of art--has been well-settled for more than a century. (14) However, the extent to which the federal government can constitutionally regulate waters that are not navigable-in-fact has never been clear, and is controversial to this day.

Proponents of federalism in this area have always maintained that regulation of intrastate wetlands should be left to the states as part of the traditional state authority over land use. (15) Such federalism concerns, of course, emerged as a driving force in the Supreme Court's Commerce Clause jurisprudence in the mid-1990s. The Court's opinions in United States v. Lopez (16) and United States v. Morrison, (17) striking down Commerce Clause-based federal regulation of criminal activity, only increased the calls for scaling back the most controversial wetland measures. (18)

Any Commerce Clause-based regulation must now be evaluated through the lens of the Lopez Commerce Clause framework. (19) In Lopez, the Court denied federal jurisdiction to criminally prosecute Alfonso Lopez for violating the Gun-Free School Zones Act (GFSZA) on the ground that the law was not within Congress's power to regulate interstate commerce. In so holding, the Court stated that it was refusing to extend the federal commerce power any further than it had been extended in the previous half-century. (20) The Lopez Court appraised the Court's previous Commerce Clause cases, and concluded that three broad categories of activity are recognized as within Congress's regulatory authority. (21) First, the Court recognized Congress's plenary authority to regulate the use of channels of commerce. (22) Second, Congress is empowered to regulate the instrumentalities of commerce, identified as persons or things in interstate commerce. (23) Third, Lopez recognized Congress's authority to regulate activities that substantially affect interstate commerce. (24) Two of these categories are potential sources of water pollution laws. Congress may legislate to protect the channels of commerce, including "navigable waters." (25) Congress may further regulate activities that pollute waters where those activities substantially affect interstate commerce. (26)

The navigable waters doctrine was traditionally a subset of the channels-of-commerce power and dates back to Chief Justice Marshall's opinion in Gibbons v. Ogden. (27) However, until the Supreme Court considered the issue in 2000, (28) it was widely thought that the navigation power allowed Congress to regulate waters that substantially affected commerce. (29) In fact, then-Justice Rehnquist wrote for the Court in Kaiser Aetna v. United States that "congressional authority over the waters of this Nation does not depend on a stream's 'navigability.'" (30) Rehnquist went on to write that the federal navigation power--or even the presence of water--is irrelevant in determining whether the regulated activities are "susceptible of congressional regulation under the Commerce Clause," since the only relevant inquiry is the effect on interstate commerce. (31) This language illustrates that federal water regulation fell into what the Lopez Court subsequently termed the "substantial effects" category, rather than the "channels of commerce" category. (32)

After Kaiser Aetna, and an important case from the U.S. District Court for the District of Columbia holding that the Corps must define "navigable waters" broadly to include as many waters as possible under the Commerce Clause, (33) the Corps promulgated CWA-based regulations over waters based on their effect on interstate commerce. (34) Thus, the judicial willingness to consider the navigable waters doctrine as coextensive with the substantial effects power, rather than the channels-of-commerce power, paved the way for expansive federal regulations under the CWA. (35) The agencies soon asserted, and the courts upheld, jurisdiction over intrastate, isolated wetlands, even when situated completely on private property--all based on a substantial effect on interstate commerce. (36)

Despite the seemingly limitless expansion of federal jurisdiction in this area, the term "navigable waters" remained the operative statutory language. Although the language seemed like something of a holdover from a bygone era, (37) it surprisingly became the centerpiece of the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC). (38) SWANCC involved a challenge to the "Migratory Bird Rule" (MBR), (39) which served as the basis for federal jurisdiction over abandoned gravel pits that had filled with water (40) and were used by migrating birds in their interstate travels. (41) The municipal consortium challenging the federal permit requirement argued that Congress could not require a section 404 permit because there were no "navigable waters" involved. (42) The consortium also claimed that federal regulatory jurisdiction over intrastate wetlands was not within Congress's Commerce Clause powers. (43) The Corps countered that the CWA's legislative history and broad definition of "navigable waters" as "waters of the United States"--along with the Court's past expansive reading of the navigable waters doctrine--indeed permitted regulation of any water that substantially affected commerce. Here, the substantial effect was the several million dollars spent annually by hunters and bird watchers on migrating birds, who necessarily use water pits as they migrate. (44)

The Court never reached the validity of the Corps' argument, however. In deciding SWANCC, the same 5-4 majority that decided Lopez construed the CWA narrowly to find that Congress had not expressed a "clear intent" to apply section 404 to isolated, intrastate waters based only on a substantial effect on interstate commerce. (45) For the Court to even reach the issue of whether the agency's interpretation was constitutionally valid required a clear statement from Congress that the agency was permitted to promulgate regulations that "would result in a significant impingement of the States' traditional and primary power over land and water use." (46) To avoid these "significant constitutional and federalism questions," the Court held that section 404's jurisdiction was limited to "navigable waters," a term that must be interpreted to exclude waters that merely affect commerce, and are neither navigable-in-fact waters, nor connected to any such waters. (47)

A slew of challenges have been brought to CWA-based wetland regulations in the wake of SWANCC, with varying results in the lower courts. (48) The courts are split as to whether the effect of SWANCC was to limit CWA jurisdiction to only those wetlands that are directly adjacent to navigable-in-fact waters, or to allow federal regulation of wetlands where there is any hydrological connection to "navigable waters." Because SWANCC itself did not undertake a constitutional analysis, these post-SWANCC cases mostly interpret the CWA, and what SWANCC said about its terms.

This Note explains the constitutional framework of federal water pollution regulation, and...