31 ELR 10741 | Environmental Law Reporter | copyright © 2001 | All rights reserved

The Court, the Clean Water Act, and the Constitution: SWANCC and Beyond

William Funk is a Professor of Law at Lewis & Clark Law School. He received his B.A. from Harvard College and his J.D. from Columbia University. He thanks his colleague Michael Blumm for his helpful comments.

[31 ELR 10741]

Environmentalists are no strangers to disappointment in the U.S. Supreme Court, but the recent case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)¹ is particularly disappointing. First, it might be said that the impact of the opinion, in circumstances in which legislative amendment is virtually impossible, may be the most devastating judicial opinion affecting the environment ever. Second, the opinion by Chief Justice Rehnquist interpreting the Clean Water Act (CWA),² joined by Justices O'Connor, Kennedy, Scalia, and Thomas, the same lineup that rendered the Court's decisions in United States v. Lopez³ and United States v. Morrison,⁴ may be said to engage in an exercise of statutory interpretation that displays an uncommon hostility to federal environmental regulation, a hostility betrayed by an interpretation that appears more the product of will than judgment. Third, the implications of the decision's statements regarding Congress' power under the Commerce Clause⁵ could be potentially staggering for environmental law. This Article will consider each of these claims.

The Case

SWANCC began as a rather typical isolated waters case. The Chicago Gravel Company owned a 533-acre parcel that sits astride Cook and Kane counties in Illinois. Chicago Gravel had used the parcel for sand and gravel pit mining from about 1930 to 1960, but since 1960 the area had not been in use, and nature had reclaimed much of the site, rendering it a successional stage forest with scattered seasonal and permanent ponds ranging from one-tenth of an acre to several acres in size and several inches to several feet in depth.⁶ The Solid Waste Agency of Northern Cook County (SWANCC), a consortium of 23 suburban Chicago cities and villages, purchased the area for use as a solid waste disposal site. SWANCC sought state and local permits to operate the facility, and, because its plan involved the filling of many of the ponds, SWANCC inquired of the U.S. Army Corps of Engineers (the Corps) whether a permit was required under § 404 of the CWA.⁷

Section 404 authorizes the Corps to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites."⁸ The term "navigable waters" is specifically defined in the Act to "mean[] the waters of the United States, including the territorial seas."⁹ In turn, the statutory term "waters of the United States" has been defined by both U.S. Environmental Protection Agency (EPA) and Corps regulations to include:

intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce . . . .¹⁰

And finally, this regulatory definition has been interpreted by the Corps and EPA to include waters and wetlands that constitute habitat for migratory fowl, on the theory that if habitat for migratory fowl is degraded or destroyed, birdwatching and bird hunting, which are activities greatly affecting interstate commerce, would be diminished or destroyed by the loss of migratory fowl.¹¹

Initially, the Corps indicated that it had no jurisdiction over the abandoned gravel site but later asserted jurisdiction because it found "that approximately 121 bird species had been observed at the site, including several known to depend upon aquatic environments for a significant portion of their life requirements."¹² The Corps formally determined that "the seasonally ponded, abandoned gravel mining depressions located on the project site . . . qualify as 'waters of the United States' [because] the water areas are used as habitat [31 ELR 10742] by migratory bird [sic] which cross state lines."¹³ Although SWANCC made several proposals to mitigate the harm to the migratory birds that would be caused by filling the ponds, and although it had received all relevant permits from the applicable state and local agencies, the Corps denied it a § 404 permit because of the threat to the local water supply and the impact on area-sensitive species and a determination that SWANCC's proposal was not the "least environmentally damaging, most practicable alternative" for disposing of solid waste.

SWANCC challenged the permit denial in a suit under the Administrative Procedure Act,¹⁴ arguing that the Corps did not have jurisdiction over the site and that, if it did, the denial of the permit was unwarranted.¹⁵ The federal district court found that the Corps did have jurisdiction, and SWANCC, abandoning its challenge to the merits of the permit denial, appealed the jurisdictional question. The Seventh Circuit affirmed the district court decision, finding that Congress under the Commerce Clause could restrict the filling of isolated waters that constitute migratory fowl habitat and that the Corps' interpretation of the CWA's term "waters of the United States" to include waters and wetlands that provide habitat to migratory fowl was reasonable.¹⁶ When the court made this decision, it was not acting on a clean slate. Not only had the Seventh Circuit already decided this issue in an earlier case,¹⁷ but a similar conclusion had also been reached by the Ninth Circuit.¹⁸ More recently, however, the Fourth Circuit had found the interpretation unconstitutional.¹⁹

The Supreme Court reversed the Seventh Circuit.

The Supreme Court Opinion

The Court began its analysis with a statement of two of the CWA's purposes. The first, which is the first provision in the Act, states that the "objective of [the Act] is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."²⁰ The other provision states that

it is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this [Act].²¹

The Court indicated that the real question at issue in the case was the import of the words "navigable waters," because the Act only regulates discharges into "navigable waters." The fact that the term "navigable waters" is itself defined to mean "waters of the United States, including the territorial seas" did not suggest to the Court that navigability had been read out of the Act.²² The Court noted that the Corps had initially interpreted the terms in 1974 to include only the traditional meaning of navigable waters as contained in the Rivers and Harbors Act of 1899, under which the Corps had been regulating discharges for three-quarters of a century: "Those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce."²³ Moreover, the Corps' initial regulations stated that "it is the water body's capability of use by the public for purposes of transportation or commerce which is the determinative factor."²⁴ The Court concluded that there was "no persuasive evidence that the Corps mistook Congress' intent in 1974."²⁵

The Corps' interpretation, however, could not be an accurate statement of the law today, the Court recognized, because in 1985 the Court had decided United States v. Riverside Bayview Homes, Inc.,²⁶ in which the Court upheld Corps' jurisdiction over wetlands that were not "navigable" in any sense. The Court conceded that in that case it had said that the term "navigable" was of "limited effect,"²⁷ and that Congress had evidenced the intent to "regulate at least some waters that would not be deemed 'navigable' under the classical understanding of that term."²⁸ What had changed since 1974, according to the SWANCC Court, was "Congress' unequivocal acquiescence to, and approval of, the Corps' [1977] regulations interpreting the CWA to cover wetlands adjacent to navigable waters" when Congress made amendments to the Act in 1977.²⁹ While the term "navigable" might not strictly limit the jurisdiction of the CWA, it "has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made."³⁰ Thus, the term could be stretched to reach wetlands adjacent to navigable waters because of those wetlands' likely effect on those waters. Nevertheless, although the very same Corps' 1977 regulation also defined "waters of the United States" to include isolated waters, the degradation or destruction of which could affect interstate commerce, the Court found insufficient evidence of congressional acquiescence to this interpretation to "overcome the plain text and import" of the [31 ELR 10743] language in the Act,³¹ presumably because such waters would not have any relation to traditional navigable waters. Part of the evidence deemed insufficient involved two amendments made in 1977 to § 404. One created an exception from § 404 for discharges for constructing or maintaining farm and stock ponds and drainage ditches³²; the other authorized the delegation of the Corps' § 404 responsibilities to states with respect to "navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce . . ., including wetlands adjacent thereto)."³³ The Corps argued that, unless its jurisdiction extended beyond navigable waters (and the wetlands adjacent thereto) to isolated waters and adjacent wetlands, neither of these amendments would make any sense. As to the first, the Court did not understand how the exception could address the extent of the regulation³⁴; and as to the second, the Court believed it could be explained by a possible interpretation that the defined term "navigable waters" could extend to their non-navigable tributaries and streams.³⁵

To the argument that the term "waters of the United States" was ambiguous and the Court should defer to the Agency's reasonable interpretation of the term, the Court had two answers. First, the Court found the language of the Act clear. Second, even if the language were ambiguous, the Court said, it would not extend Chevron, U.S.A., Inc. v. Natural Resources Defense Council³⁶ deference here. The reason was that "where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result."³⁷ This rule, the Court said, derives from two sources: the "prudential desire not to needlessly reach constitutional issues and [the] assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority."³⁸ Finally, "this concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power."³⁹

The constitutional limits the Court was referring to are, of course, the limits of the Commerce Clause. The Corps and EPA maintained that Congress has the power to regulate intrastate activities if they substantially affect interstate commerce, a doctrine reaffirmed by the Court in its recent Commerce Clause cases.⁴⁰ Moreover, as the Court of Appeals for the Seventh Circuit found, millions of people spend over $ 1 billion annually watching and hunting migratory fowl.⁴¹ Thus, according to the government, protecting the habitat of such fowl in intrastate waters and wetlands is within Congress' powers under the Commerce Clause. These arguments, however, only raised "issues" for the Court.⁴² Key to the government's position was the notion of aggregation: that individually inconsequential actions can be regulated under the Commerce Clause, because, when aggregated, they have a substantial effect on commerce.⁴³ This, the Court said, raised the issue as to what activity exactly was to be aggregated.⁴⁴ In the past the Corps has generally suggested that the aggregation of the filling of individually isolated waters and wetlands would affect interstate commerce through its impact on migratory fowl, but before the Court the government stressed that the disposal of solid waste by SWANCC was commercial activity that, if aggregated, would affect interstate commerce.⁴⁵ In light of these unresolved issues, the Court fell back to the conclusion that there was no clear statement of Congress to reach the waters at issue.

Effect of the Decision

The exact scope of the Court's decision is not clear. The last paragraph of the opinion stated simply that the Court holds that the Corps' regulation, as applied to the particular site involved in the case pursuant to the Migratory Bird Rule, exceeded the Agency's authority under the CWA.⁴⁶ Elsewhere in the opinion, however, the Court suggested a broader conclusion. For example, the Court's statement that there was no persuasive evidence the Corps had erred in its original interpretation would limit the CWA to the historical conception of navigable waters.⁴⁷

The Court did not ultimately appear to rest on such a limited reach, because it affirmed (while distinguishing) Riverside Bayview Homes, which at the least held that the Act reaches wetlands adjacent to traditionally navigable waters,⁴⁸ and the Court repeated its statement in Riverside Bayview Homes that "Congress intended the phrase 'navigable waters' to include 'at least some waters that would not be deemed navigable under the classical understanding of that term.'"⁴⁹ The Court characterized the reach of its decision in Riverside Bayview Homes in three ways. First, it said that § 404's jurisdiction extended to "wetlands that actually abutted on a navigable waterway."⁵⁰ Second, the Court stated that Congress "indicated its intent to regulate wetlands 'inseparably bound up with the waters of the United States.'"⁵¹ Finally, the Court said that "it was the significant nexus between the wetlands and 'navigable waters' that informed [its] reading of the CWA in Riverside Bayview Homes."⁵² Each of these characterizations suggests different ways of limiting, or extending, the reach of "adjacent wetlands." In [31 ELR 10744] Riverside Bayview Homes, for example, the Court described how wetlands and navigable waters might be related beyond the obvious relationship of a hydrologic connection or flooding of the wetland by the navigable water. First, while the source of the wetland's water might not be the adjacent navigable water, the wetland's water could drain to or occasionally overflow into the navigable water and therefore could affect its quality.⁵³ Second, the adjacent wetlands may "serve significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic . . . species."⁵⁴ Nevertheless, it is unclear from the Court's opinion in SWANCC what factors might be necessary to fall within the recognized scope of Riverside Bayview Homes. The most limiting reading would be to require the wetland actually to abut the navigable water. That was the situation in Riverside Bayview Homes, where the wetland in question did in fact abut a navigable waterway, although the property in question did not.⁵⁵ The other considerations, "inseparably bound up" and "significant nexus," could be interpreted as additional requirements, explaining how it is that a wetland could be considered "waters of the United States" at all. This reading would be consistent with, although not compelled by, the opinion in Riverside Bayview Homes.

In response to the Corps' argument that § 404(g)'s denial of authorization to states with respect to actually navigable waters and their adjacent wetlands necessarily implied the Act's jurisdiction over non-navigable waters, the petitioners were willing to concede that the Act also reached non-navigable tributaries and streams which are connected to navigable waters, and their adjacent wetlands.⁵⁶ The Court characterized this interpretation as "plausible," although it said it was expressing "no opinion" on the "exact meaning" of § 404(g).⁵⁷ The dissent, however, read the Court's opinion to limit the Corps' jurisdiction specifically to "actually navigable waters, their tributaries, and wetlands adjacent to each."⁵⁸ And there are indications that this may be the interpretation of the Court's opinion that extends the Corps' jurisdiction the furthest. For example, the Court said in rejecting one of the Corps' arguments: "We would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this."⁵⁹ That is, the Court seems to have concluded that the statute would not support an interpretation reaching nonadjacent, non-navigable waters, and it failed to affirm conclusively that the statute will even reach tributaries of navigable waters and their adjacent wetlands.

Interestingly, the Court's decision apparently excluding non-navigable, intrastate, isolated waters from CWA jurisdiction would also apply to waters on federal property, although Congress would clearly have authority to regulate such waters. Nevertheless, unless those federal waters are also "navigable waters" within the meaning of the Act, they appear to be excluded from CWA protection.

The Corps and EPA quickly issued guidance to the field regarding SWANCC.⁶⁰ That guidance stated that "the Court's holding was strictly limited to waters that are 'nonnavigable, isolated, [and] intrastate.'"⁶¹ Accordingly, the agenciesstated that field staff "should continue to exercise CWA jurisdiction to the full extent of their authority" over territorial seas, traditionally navigable waters, interstate waters, their tributaries, and wetlands adjacent to these waters.⁶²

This would leave potentially unregulated "all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce."⁶³ The so-called migratory bird rule was an interpretive rule explaining one of the ways in which interstate commerce could be affected by the degradation or destruction of such waters, and the Court clearly held that it was not authorized by the Act. Nevertheless, the Corps and EPA regulations specify three other ways interstate commerce might be affected: when the waters "are or could be used by interstate or foreign travelers for recreational or other purposes," when the waters are those from which "fish or shellfish are or could be taken and sold in interstate or foreign commerce," and when the waters "are used or could be used for industrial purpose by industries in interstate commerce."⁶⁴ Jurisdiction over these waters, the agencies said, should be considered on a case-by-case basis.⁶⁵

Given the possible different reaches of the Court's decision in SWANCC, assessing the actual impacts of the decision on CWA activities is difficult, but an initial estimate has been made on behalf of the Association of State Wetland Managers.⁶⁶ That estimate suggests that if the Court's opinion is interpreted to allow regulation only of traditionally navigable waters and adjacent wetlands, then only 20% of the nation's wetlands would remain under CWA proteotion.⁶⁷ If the concept of adjacency is given a broad interpretation, [31 ELR 10745] such as including any wetlands within the 100-year floodplain, then the protected wetlands could extend to 30% to 40% of the nation's wetlands.⁶⁸ If the waters subject to the CWA extend to the tributaries of navigable waters and the wetlands adjacent to those tributaries, then regulated wetlands could range from "40%-60% or more."⁶⁹ This figure turns on how broadly the term "tributary" would be construed.

If "tributary" were broadly construed to include infrequent surface water connections including not only streams but water flowing along the surface during flood events, a great deal of riverine, depressional, slope and other wetland types could be included as "waters of the U.S." and the total be [sic] 60% or more.⁷⁰

The association reports "tentative state estimates" suggesting that "30% to 79% of total wetland acreage may be affected" by the Court's decision in SWANCC.⁷¹

These figures, of course, refer to wetlands, not to isolated waters themselves. The 500+ acre site involved in SWANCC with its "scattering of permanent and seasonal ponds" was not classified as wetlands.⁷² Nevertheless, it was a site where 121 different bird species had been sighted, "including several known to depend upon aquatic environments for a significant portion of their life requirements."⁷³ Predictably, there are surely many other comparable sites in the United States that do not qualify as wetlands and also would cease receiving protection under the CWA. The implication in SWANCC that only insignificant bodies of water would be excepted from CWA jurisdiction may be seriously in error. For example, the Great Salt Lake has been held not to be a navigable water of the United States within the meaning of the Rivers and Harbors Act.⁷⁴ Although there are no estimates as to the numbers or sizes of isolated, intrastate, non-navigable waters (as opposed to wetlands) that would cease to be protected under the CWA, the numbers are likely to be staggering.

Although SWANCC involved the Corps and § 404 of the CWA, the Court's decision involved the definition section of the entire CWA. Accordingly, the limitation of the "waters of the United States" to "navigable waters" applies not just to § 404 but also to every exercise of jurisdiction under the CWA. Thus, permits under EPA's national pollutant discharge elimination system (NPDES)⁷⁵ cannot be required for discharges of pollutants into isolated, non-navigable, intrastate waters.⁷⁶ States will not be required to set water quality standards for such waters.⁷⁷

Perhaps ironically, in light of the Court's expressed concern for the states' primary control of their land and waters,⁷⁸ limiting the reach of the CWA will have unintended consequences for state water regulation. Most significantly, virtually all states have been authorized by EPA to administer state programs in lieu of the § 402 permit program, but now the state laws passed to regulate water pollution under the Act, depending upon their particular language, may no longer cover isolated, non-navigable, intrastate waters. In addition, to the extent that it limits the CWA's jurisdiction over non-navigable, intrastate, isolated waters, the decision effectively eliminates the power given to states under § 401 of the CWA to veto federal permits that might adversely affect the water quality of those waters.⁷⁹ Many states, rather than try to regulate discharges to its waters and wetlands directly, have relied upon this veto power over § 404 permits.⁸⁰ Similarly, under the Coastal Zone Management Act (CZMA), federal permits in coastal zones of states with approved CZMA programs are subject to "consistency review" by the states, giving effective veto power to states over those federal permits.⁸¹ To the extent that non-navigable, isolated, intrastate waters are within a state's coastal zone, discharges into those waters will no longer require a federal permit and hence no federal requirement for state review.

One might wonder to what extent states already regulate these waters now apparently excluded from the CWA. The report made on behalf of the Association of State Wetland Managers indicates that only 14 states have state or local wetland regulations that will partially or wholly fill the gap left by SWANCC.⁸² Some of these state programs are comprehensive,⁸³ but in many of the states there are significant limitations. For example, in New York, the minimum size of a regulated area is 12.4 acres; in Michigan, 5 acres for certain wetlands.⁸⁴ Moreover, the state laws do not apply to federal lands.⁸⁵ In fact, many of the states with the largest isolated wetland acreages are those with the least, or nonexistent, protection for wetlands.⁸⁶

The above effects of the SWANCC decision are what have led some to describe the case as the most devastating judicial opinion ever rendered with respect to the environment.⁸⁷ Whether these estimations are accurate or hyperbole, there is little doubt that SWANCC will have a major impact on the protection of the nation's water resources.

[31 ELR 10746]

Assessment of the Court's Opinion

Statutory Language and Purpose

The central issue in assessing the statutory coverage of the CWA is the meaning of the term "navigable waters." At first blush, it might seem reasonable to accord some importance to the adjective "navigable," inasmuch as it appears to modify the word "waters." And absent a statutory definition of the term "navigable waters," limiting the term to waters in some fashion navigable would be appropriate. However, the CWA does provide a statutory definition for the term "navigable waters." That definition, stating that the term "means the waters of the United States, including the territorial seas,"⁸⁸ does not itself suggest any limitation regarding navigability.

If one uses a "plain language" means of interpretation, the waters reached by the CWA are the "waters of the United States, including the territorial seas," without regard to navigability, because that is the definition of term used to describe the waters covered. The fact that the term used includes the word "navigable" may seem strange, but in fact it is not particularly uncommon for the definition of a statutory term seemingly to be at war with the term itself. For example, in the Solid Waste Disposal Act (SWDA),⁸⁹ the term "solid waste" is used in the statute to describe the material regulated,⁹⁰ but "solid waste" is defined to include "liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities. . . ."⁹¹ And no one has suggested that in assessing the reach of the SWDA we should attempt to give effect to the adjective "solid" when determining whether liquid or gaseous materials are included within the term "solid waste." Even commonly used terms, such as "person," are defined in ways that find no equivalent in the dictionary.⁹² And 1 U.S.C. § 1 contains the wonderful list of antonymic definitions with which we are all familiar: "words importing the plural include the singular; words importing the masculine gender include the feminine as well; words used in the present tense include the future as well as the present. . . ." In short, if Congress wishes to define the statutory term "brown" to mean "red" for purpose of a particular statute, it is free to do so. We may wonder why it chose to do so, but there is no particular reason to believe it meant that only brownish reds were intended to be addressed.

If one looks to the purposes of the CWA, again one must conclude that "waters of the United States" contains no limiting concept of navigability. The congressional declaration of goals and policy of the CWA suggests a broad reach: "The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."⁹³ Here, the reach of the chapter would appear to be clear—"the Nation's waters," not the nation's navigable waters or the nation's waters somehow related to navigation.⁹⁴ Perhaps more importantly, if one searches the CWA for some hint of concern for protecting navigation, one will find little evidence of it.⁹⁵ The objective of the Act clearly is not to protect the nation's waters for navigation. The "chemical, physical, and biological integrity of the Nation's waters" is the goal itself, and nowhere in the congressional declaration of goals and policy is there a mention of the importance of maintaining navigation. Nor was there any need in the CWA to provide such protection, because it already existed and had existed since 1899 in the Rivers and Harbors Act and continued to exist in that Act after passage of the CWA.⁹⁶ There is, however, mention of the need to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water."⁹⁷ The structure of the Act confirms that the purpose of the Act is not to maintain navigation but to restore and maintain the health of the nation's waters.⁹⁸ Given this purpose, there would be no reason to limit the protection of water quality only to waters somehow connected to navigable waters.

Similarly, if one searches for some expression (other than the use of the term "navigable waters" itself) of intent to limit the protections afforded by the Act to waters having some connection to navigability, one searches in vain. Thus, on the face of the Act, there seems no basis for limiting the Act to waters related to navigation, leaving the scope of the Act "the waters of the United States."

One might suggest that the use of the term "navigable waters" as the operative term sufficiently confuses the clarity of the definition "waters of the United States" to render their meanings ambiguous. Chevron⁹⁹ holds that an interpretation of an ambiguous statute by the agency that administers the statute should be upheld if reasonable.¹⁰⁰

The Court said it need not reach Chevron because it found the meaning of the Act "to be clear."¹⁰¹ This was not a determination [31 ELR 10747] that the meaning of "navigable waters" or "waters of the United States" was clear in general, but that the Court found those words clearly did not include authority over non-navigable, isolated, intrastate waters on the basis of their use by migratory birds. The only basis for this conclusion suggested by the Court was its belief that the word "navigable" must have some import, which at least was to "show[] us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made."¹⁰² The Court, however, nowhere explained why it is clear that the word "navigable" has that import. Above, this Article has attempted to show that it simply cannot be said that from the face of the statute or the purpose of the statute that the Act clearly precludes regulation of waters not somehow connected to navigation, and the Court only relied on the plain language of the statute to support its conclusion that the statute was clear.¹⁰³ It is difficult to see how the plain language standing alone clearly requires some link to navigability.

Legislative History Generally

That said, a good-faith construction of the statute should look to its legislative history if the reach of the statute is otherwise unclear or ambiguous.¹⁰⁴ Indeed, Riverside Bayview Homes looked to legislative history to determine whether adjacent wetlands were "waters of the United States."¹⁰⁵ There, the Court described its interpretation of that history as follows:

Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into "navigable waters," the Act's definition of "navigable waters" as "the waters of the United States" makes it clear that the term "navigable" as used in the Act is of limited import. In adopting this definition of "navigable waters," Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed "navigable" under the classical understanding of that term.¹⁰⁶

Riverside Bayview Homes was a unanimous decision. While it is true that the Court there did not entirely read "navigable" out of the Act, which was unnecessary for decision of the case, it certainly read the legislative history as demonstrating a "liberal" approach to construing the jurisdiction of the Act. Commentators have gone further. A leading treatise describes the reach of the 1972 Act as

banishing traditional limits of navigability as measures of federal power to combat pollution. . . . The definitions section and legislative history eliminate the ambiguity [caused by the use of the term "navigable waters"]. Subsection 502(7) defines "navigable waters" to mean "the waters of the United States, including the territorial seas," thus strongly suggesting the banishment of the navigability limitation.¹⁰⁷

As demonstrated below, however, the legislative history in fact suggests that Congress originally did intend to retain a residual notion of navigability within the term "waters of the United States."

Legislative History of the 1972 Act

What we today call the CWA was adopted in 1972¹⁰⁸ as the Federal Water Pollution Control Act (FWPCA) Amendments of 1972.¹⁰⁹ Before 1972, the FWPCA at the time consisted essentially of two parts: a grant program for research and program development¹¹⁰ and pollution control provisions.¹¹¹ The provisions of the grant program nowhere suggest any limitation as to navigable waters.¹¹² The pollution control provisions generally did have limits on the waters subject to the control provisions. For example, the general provision subjected pollution that endangered health or welfare to abatement if it occurred in "interstate or navigable waters in or adjacent to any State or States (whether the matter causing or contributing to such pollution is discharged directly into such waters or reaches such waters after discharge into a tributary of such waters)."¹¹³ The invitation to states (and the default authority to the federal government) to adopt water quality standards only applied to "interstate waters or portions thereof."¹¹⁴ The prohibition on discharges of oil was limited to "navigable waters of the United States, adjoining shorelines, or into or upon the waters [31 ELR 10748] of the contiguous zone."¹¹⁵ The requirement to clean up hazardous substances was limited to discharges to the same waters.¹¹⁶ The restrictions on discharges from marine sanitation devices was limited to "navigable waters of the United States."¹¹⁷ The Act contained no definition of "navigable waters."

By 1970, the inadequacy of the existing pollution control provisions was generally recognized. In 1971, bills were introduced in both the House and the Senate designed to make major alterations to the existing law.¹¹⁸ Both used the term "navigable waters" as the operative term in the text of the bill describing the place in which discharges were prohibited unless otherwise authorized, and both bills defined "navigable waters" in terms of navigability.¹¹⁹ However, both the House and Senate reports expressed concern about narrow interpretations of the waters included. The Senate Committee on Public Works wrote:

The control strategy of the Act extends to navigable waters. The definition of this term means the navigable waters of the United States, portions thereof, tributaries thereof, and includes the territorial seas and the Great Lakes. Through a narrow interpretation of the definition of interstate waters the implementation 1965 Act [sic] was severely limited. Water moves in hydrological cycles and it is essential that discharge of pollutants be controlled at the source. Therefore, reference to the control requirements must be made to the navigable waters, portions thereof, and their tributaries.¹²⁰

The House Committee on Public Works stated:

One term the Committee was reluctant to define was the term "navigable waters." The reluctance was based on the fear that any interpretation would be read narrowly. However, this is not the Committee's intent. The Committee fully intends that the term "navigable waters" be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.¹²¹

These two statements reflect a desire to give the term "navigable waters" a broad reading; in one the broad reading is tied to the movement of waters in hydrological cycles, and in the other the broad reading is tied to "the broadest possible constitutional interpretation." Nevertheless, at this point, as the bills passed both the House and the Senate, in each of the bills the definition of "navigable waters" itself still uses the limiting term "navigable." Thus, the committee reports call for a broad reading of the adjective "navigable" waters, not a reading beyond any concept of "navigable" waters.

In conference, the definition was changed to its present reading by deleting the word "navigable" from the House bill's definition. The conference report described the change and said: "The conferees fully intend that the term 'navigable waters' be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes."¹²² This sentence, of course, was merely a restatement of the sentence in the earlier House report explaining the definition "navigable waters of the United States." Accordingly, the most likely meaning of this sentence was to express a desire for the broadest possible constitutional interpretation of what waters would be "navigable waters" for purposes of regulation under the Commerce Clause, rather than for an interpretation unrelated to navigability. Explanations on the floor of the House and Senate elaborated on this statement. In the Senate it was reported:

One matter of importance throughout the legislation is the meaning of the term "navigable waters of the United States."¹²³

The conference agreement does not define the term.¹²⁴ The Conferees fully intend that the term "navigable waters" be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.

Based on the history of the consideration of this legislation, it is obvious that its provisions and the extent of its application should be construed broadly. It is intended that the term "navigable waters" include all water bodies, such as lakes, streams, and rivers, regarded as public navigable waters in law which are navigable in fact. It is further intended that such waters shall be considered to be navigable in fact when they form, in their ordinary condition by themselves or by uniting with other waters or other systems of transportation, such as highways or railroads, a continuing highway over which commerce is or may be carried on with other States or with foreign countries in the customary means of trade and travel in which commerce is conducted today. In such cases the commerce on such waters would have a substantial economic effect on interstate commerce.¹²⁵

[31 ELR 10749]

In the House, Rep. John D. Dingell (D-Mich.) explained the new definition:

The conference bill defines the term "navigable waters" broadly for water quality purposes. It means all "the waters of the United States" in a geographical sense. It does not mean "navigable waters of the United States" in the technical sense as we sometimes see in some laws.

The new and broader definition is in line with more recent judicial opinions which have substantially expanded that limited view of navigability—derived from the Daniel Ball case—to include waterways which would be "susceptible of being used . . . with reasonable improvement," as well as those waterways which include sections presently obstructed by falls, rapids, sand bars, currents, floating debris, etc. [There follows citations to nine Supreme Court and Courts of Appeals decisions.]

The U.S. Constitution contains no mention of navigable waters. The authority of Congress over navigable waters is based on the Constitution's grant to Congress of "power . . . to regulate commerce with Foreign Nations and among the several States. . . ." Although most interstate commerce 150 years ago was accomplished on waterways, there is no requirement in the Constitution that the waterway must cross a State boundary in order to be within the interstate commerce power of the Federal Government. Rather, it is enough that the waterway serves as a link in the chain of commerce among the States as it flows in the various channels of transportation—highways, railroads, air traffic, radio and postal communication, waterways, et cetera. The "gist of the Federal test" is the waterway's use "as a highway," not whether it is "part of a navigable interstate or international commercial highway. [Citations omitted.]

Thus, this new definition clearly encompasses all water bodies, including main streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by the Corps of Engineers, going to govern matters covered by this bill. Indeed, the conference report states on page 144: "The conferees fully intend that the term navigable waters be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes."¹²⁶

While there are sentences which, if taken out of context, would support a reading of this history to extend "waters of the United States" more broadly than a liberal reading of navigable waters, these statements made in explanation of the conference agreement clearly indicate the intent that "waters of the United States" be defined in reference to waters under Congress' authority because of Congress' power over waters used as a highway for commerce, rather than Congress' authority under the Commerce Clause generally.

One may wonder why Congress wished to limit the reach of the Act by reference to navigability. After all, as mentioned above, nothing in the Act relates to navigation, and the goals of the Act to protect the myriad other uses and benefits of clean water are not limited to waters somehow related to navigation. The answer must be that Congress believed its power to regulate water did not extend beyond navigable waters broadly defined. The recurring expression of a desire to read its authority over navigable waters broadly, and the recurring, express statement that navigable waters be given the "broadest possible constitutional interpretation" suggest a desire to utilize the outer bounds of congressional authority. Because any limits of navigability are unrelated to the purposes of the Act, however, choosing the bounds of navigability as the limitation makes no sense unless they were thought to be furthest bounds available to Congress.

The above legislative history, suggesting a limitation of "waters of the United States" to waters with some connection to navigability, places in question the plain language of the statute interpreted in light of the purposes of the Act, which suggests no such limitation. The resolution of such a conflict may depend upon one's theory of statutory construction. That is, if one is a textualist and abjures the use of legislative history, it would appear that the CWA's jurisdiction should not be limited by concepts of navigability. If, however, one believes in the use of legislative history to aid in the interpretation of statutes, the meaning of "navigable waters" is less clear, because the legislative history conflicts with the plain language. One response could be to use the legislative history to give content to the broad and unclear term, "waters of the United States," rendering its meaning clear and not ambiguous. This response would be consistent with the Court's conclusion, although not its reasoning, because it did not rely on the legislative history to interpret the statutory language. Rather it found that the unadorned statutory language clearly required that waters regulated under the CWA must have some connection to navigability.

Legislative History of the 1977 Amendments

In SWANCC, the government also argued that, whatever the meaning of the original 1972 Act, the 1977 Amendments to the Act¹²⁷ ratified the Corps' and EPA's 1975 interpretation of the Act to reach isolated, non-navigable, intrastate waters.¹²⁸ In Riverside Bayview Homes, the Court had relied heavily on the 1977 Amendments in its determination that wetlands adjacent to navigable waters were covered by the Act.¹²⁹ In Riverside Bayview Homes, the major issue had been whether wetlands could be waters at all. Although the Court found reasonable the agency's interpretation of the original Act to include wetlands,¹³⁰ it found further support in two aspects of the 1977 Amendments to the Act. First, Congress did not alter the definition of "navigable waters" despite assertions by some that the Corps' extension of the Act to wetlands exceeded its authority and despite some attempts to limit the scope of "waters of the United States."¹³¹ Second, Congress actually did make certain amendments to the Act that specifically referenced wetlands, suggesting [31 ELR 10750] that the Act's jurisdiction could reach wetlands.¹³² The government in SWANCC made corresponding claims with respect to the treatment by Congress of non-navigable, intrastate, isolated waters in the 1977 Amendments.

The Court in SWANCC was not convinced. It said there was "no persuasive evidence"¹³³ that Congress' rejection of the various bills to limit the scope of "navigable waters" went beyond Congress' desire to allow regulation of wetlands adjacent to navigable waters.¹³⁴ This conclusion is difficult to square with the facts.

Post-1972 Act Developments

The first agency interpretation of the reach of the 1972 Act appeared in EPA's 1973 regulations.¹³⁵ There, EPA defined "navigable waters" to "include[]":

(1) All navigable waters of the United States;

(2) Tributaries of navigable waters of the United States;

(3) Interstate waters;

(4) Intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes;

(5) Intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce;

(6) Intrastate lakes, rivers, and streams which are utilized for industrial purposes by industries in interstate commerce.¹³⁶

This definition clearly interpreted "waters of the United States" not to require navigability. It clearly included non-navigable, intrastate waters, and there was no suggestion that those non-navigable intrastate lakes, rivers, and streams could not be "isolated." Their jurisdiction rested not on a connection to navigation or navigability, but upon a different connection to interstate commerce. Thus, EPA read "waters of the United States" in light of Congress' Commerce Clause powers generally, an entirely reasonable approach given the plain language and purposes of the Act. A few early cases reached the same conclusion.¹³⁷

In contrast to EPA's regulation, the Corps' 1974 regulations purported to follow the guide of the 1972 Act's conference agreement.¹³⁸ Although the Corps asserted that it was defining the reach of the Act in terms of "the constitutional extent to which the authority of the United States can extend over the nation's waterways,"¹³⁹ its definition did not reach even as far as suggested in the legislative history, much less as far as EPA's definition.¹⁴⁰ For example, the Corps' definition did not even include the headwaters or tributaries of navigable waters.¹⁴¹ While the definition by its terms did not use navigability as a criterion, requiring only that the waters be presently used, have been used, or be susceptible for use "for purposes of interstate or foreign commerce,"¹⁴² the Corps interpreted "use for purposes of interstate or foreign commerce" to mean use as a highway of commerce, not use in the sense of EPA's regulations, such as use for recreation, a source of commercial fishing, or use by businesses engaged in interstate commerce.¹⁴³

The conflict between the two definitions immediately led to attempts by EPA and the U.S. Department of Justice, as well as environmental groups, to get the Corps to change its definition.¹⁴⁴ The Corps was not responsive and a lawsuit ensued, seeking to overturn the Corps' definition. In Natural Resources Defense Council, Inc. v. Callaway,¹⁴⁵ the court held that

by defining the term "navigable waters" . . . to mean "the waters of the United States, including the territorial seas," [Congress] asserted federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution. Accordingly, as used in the [CWA], the term is not limited to the traditional tests of navigability.¹⁴⁶

This constituted the entire analysis of the court and appears to confirm EPA's interpretation. While the Supreme Court certainly need take no legal notice of a district court decision, it seems somewhat strange that the Court would discuss the Corps' 1974 regulations, including positive statements about them, without ever acknowledging that they were declared unlawful and enjoined from use in a final judicial judgment that stood unrejected for 25 years.

The Corps quickly undertook a rulemaking to conform its regulations to the decree in Callaway. These regulations were the most expansive of any agency so far,¹⁴⁷ reaching "virtually every natural and artificial water in the United States."¹⁴⁸ They included all the waters covered by EPA's regulations but also specifically included intrastate lakes, rivers and streams utilized in the production of agricultural commodities sold or transported in interstate commerce as well as both coastal and freshwater wetlands.¹⁴⁹ In addition, the Corps' regulation included in the definition of "navigable waters":

[31 ELR 10751]

Those waters which the District Engineer determines necessitate regulation for the protection of water quality as expressed in the [§ 404(b)(1) guidelines adopted by EPA under the CWA]. For example, in the case of intermittent rivers, streams, tributaries, and perched wetlands that are not contiguous or adjacent to navigable waters, a decision on jurisdiction shall be made by the District Engineer.¹⁵⁰

While these definitions were immediately applicable,¹⁵¹ requirements for individual permits were to be phased in over a period of years.¹⁵² Under "Phase I" individual permits would be required immediately for coastal waters, inland navigable waters, and wetlands adjacent to both, in other words, the waters the Corps had been regulating under § 404 according to its 1974 regulations.¹⁵³ "Phase II" would begin on July 1, 1976, and would cover primary tributaries of navigable waters, their adjacent wetlands, and lakes over five acres in surface area.¹⁵⁴ Finally, "Phase III" would apply on July 1, 1977, and would cover the remainder of waters within the definition of "navigable waters."¹⁵⁵

Congressional Responses

The Corps' 1975 proposed and final regulations quickly raised a firestorm of protest among agricultural and timber interests in particular, especially in light of allegations that the regulations would require a permit from a rancher who wished to enlarge a stock pond or a farmer who wanted to deepen an irrigation ditch or plow a field.¹⁵⁶ Congress quickly became involved. Bills were introduced to return the Corps' jurisdiction to that described in the 1974 regulations¹⁵⁷ or to minimize the effect of the expanded jurisdiction by allowing the Corps to delegate its authority to states with approved programs,¹⁵⁸ and hearings were held.¹⁵⁹ At the same time, authorizations for several programs under the 1972 Act were running out, and a bill to reauthorize those programs was introduced.¹⁶⁰ It became a vehicle for an amendment to the Corps' definition of "navigable waters." Section 17 of the bill amended § 404 of the 1972 Act to limit the term "navigable waters" for purposes of that section only to the definition of navigable waters historically used by the Corps, but further limited by eliminating waters used in the past for navigation which were no longer so used or which could not be made susceptible to use. In addition, the section specifically provided that waters not within the definition of "navigable waters" for that section could not be regulated under § 404 or §§ 9, 10, or 13 of the Rivers and Harbors Act. The explanation for the amendment was that without it "we find ourselves with a program that promises more while delivering less and discourages the States from exercising their proper role in the management of water and wetland areas which have traditionally been within their responsibility."¹⁶¹ The committee report explained at some length the development of the then-current interpretation of § 404's reach, starting with the Corp's' original 1974 regulation limiting its jurisdiction to its understanding of navigable waters. "This Committee had no difficulty with that interpretation and considered it to be consistent with the provisions of section 404."¹⁶² The committee noted that this interpretation, however, had been overturned by the court in Callaway, and it described the rulemaking process that the Corps had gone through pursuant to that case.¹⁶³ While this bill passed the House,¹⁶⁴ it was inconsistent with the reauthorization bill passed by the Senate,¹⁶⁵ and Congress adjourned before any conference agreement could be reached.

In the next Congress, another reauthorization bill with a similar amendment was introduced in the House.¹⁶⁶ This amendment was somewhat compromised from its earlier version. Now "adjacent wetlands," defined as wetlands adjacent to navigable waters, also could be subject to regulation under § 404.¹⁶⁷ In addition, even non-navigable waters and nonadjacent wetlands could be subject to regulation if the Corps and the governor of a state entered into an agreement for such regulation, but either could revoke the agreement later.¹⁶⁸ Specific authorization was given for general permits for discharges from normal farming, silviculture, and ranching activities, for maintaining currently serviceable structures, and for constructing or maintaining farm or stock ponds or irrigation ditches.¹⁶⁹ Discharges in connection with federal or federally assisted construction projects authorized by Congress were exempt from regulation if Congress had been provided an environmental impact statement or assessment under the National Environmental Policy Act in connection with the authorization or funding of the project.¹⁷⁰ Finally, the amendment authorized the Corps to delegate to a state its § 404 responsibilities with respect to adjacent wetlands if the state had adequate authority to carry out those responsibilities.¹⁷¹ This amendment was reported out of committee with one change: the addition of the ability of the Corps to delegate to a state its § 404 and Rivers and Harbors Act responsibilities with respect to freshwater lakes located entirely within the state if the state had adequate authority to carry out those responsibilities.¹⁷²

The committee report explained the background for this amendment: "Unresolved controversy over the scope of [31 ELR 10752] [the Corps'] regulatory authority over activities affecting wetlands and non-navigable streams poses the threat of needless bureaucratic overregulation of farming, forestry, and other practices."¹⁷³ Next, the committee indicated its understanding of the current state of the law regarding the Corp's jurisdiction under § 404: "Section 404 requires a permit from the [U.S.] Department of the Army for the discharge of dredged or fill material into any water or wetland of the United States."¹⁷⁴ It then described the fix: "Section 16 amends [§] 404 by limiting the requirement for a permit to navigable waters and adjacent wetlands."¹⁷⁵ The report then repeated almost word-for-word the pages of the report on the previously considered bill.¹⁷⁶

Finally, the report responded to some criticisms voiced about the previously passed bill. One of the responses provides a good reflection of the committee's understanding of the then-current law and how the bill would change it. An allegation had been made about the earlier bill that the discharge of toxic fill to non-navigable waters would not be subject to regulation because § 404, under the amendment, would be limited to discharge of fill into navigable waters. The committee responded that the current bill had been changed specifically to "provide that [§] 307 [applicable to toxic discharges generally] would be applicable to the discharge of dredged or fill materials into any of the waters of the United States as broadly defined in [§] 502 of the Act."¹⁷⁷ That is, the committee was saying that discharges of toxic materials, whether fill or not, would be governed by § 307, and § 307 would be applicable to non-navigable waters because its reach was determined by § 502, the definitions section that includes the definition of "navigable waters" as "waters of the United States, including the territorial seas." The amendment to § 404 was intended to limit its reach but not to affect the understood broad reach of the rest of the CWA to all waters of the United States, not just navigable waters and their adjacent wetlands.

The floor consideration reflects the same understanding by both supporters and critics of the amendment—that the Corps was currently exercising jurisdiction well beyond navigable waters and their adjacent wetlands.¹⁷⁸ A floor amendment to the bill to strike the proposed limitation on § 404's jurisdiction expressed concern over the effect such a change would make.¹⁷⁹ Those who opposed the floor amendment stated that the bill's proposed restriction would merely return the Corps' jurisdiction to its historical jurisdiction.¹⁸⁰ That is, the supporters of the committee's bill phrased their support in terms of changing the status quo back to the historical understanding. The floor amendment was defeated, and the committee bill was passed without any change relevant to this issue.

Some of those supporting the restriction on the Corps' jurisdiction, while acknowledging the then-current interpretation of the law, blamed this interpretation on the judicial decision in Callaway and argued that the amendment to § 404 was to overturn that decision and reestablish the original intention of Congress.¹⁸¹ This point was not conceded by those who opposed the proposed restriction on the Corps' jurisdiction.¹⁸²

This history of the House consideration of the bill to limit the Corps' jurisdiction under § 404 clearly demonstrates that whatever the members' view of the original reach of the 1972 Act, they now believed that the definition of "navigable waters" as "waters of the United States" was not limited by concepts of navigability. Because the expressed concerns about this broad jurisdiction only applied to § 404, the House bills would only have limited the jurisdiction of the Corps under § 404 to the historical conception of navigability; they would not have affected the jurisdiction of the remainder of the Act over the "waters of the United States" without regard to navigability. Moreover, the committee reports also make clear that the furor over the Corps' 1975 definition and the committee's response was not limited to wetlands, much less wetlands adjacent to navigable waters, as the Court suggests in SWANCC.¹⁸³

The House provision restricting the jurisdiction under § 404 found no warmer reception in the Senate in 1977 than it had in 1976. The consensus in the Senate was that the 1972 Act did and should apply to all waters of the United States without any navigability limitation. As the Senate Committee on Environment and Public Works reported:

Initial consideration of the Section 404 controversy stimulated discussion on the extent of the waters in which discharges of dredged or fill material will be regulated.

The 1972 [FWPCA] exercised comprehensive jurisdiction over the Nation's waters to control pollution to the fullest constitutional extent. . . .

The objective of the 1972 Act is to protect the physical, chemical, and biological integrity of the Nation's waters. Restriction of jurisdiction to those relatively few waterways that are used or are susceptible to use for navigation [the restriction of § 404 jurisdiction in the House bill] would render this purpose impossible to achieve. . . .

The committee amendment does not redefine navigable waters. Instead, the committee amendment intends to assure continued protection of all the Nation's waters, but allows States to assume the primary responsibility for protecting those lakes, rivers, streams, swamps, [31 ELR 10753] marshes, and other portions of the navigable waters outside the Corps program in the so-called Phase I waters.¹⁸⁴

The Bentsen Amendment

On the floor of the Senate, Sen. Lloyd Bentsen (D-Tex.) introduced an amendment that reproduced the House provision to restrict the scope of § 404. He explained that "for 2 years now, the people of America have lived with [§] 404 of the [FWPCA] as interpreted by the courts and administered by the [Corps]."¹⁸⁵ He continued:

The committee has failed to recommend any reduction in the scope of the [§] 404 permit program as interpreted by the courts. . . .

The committee's amendment skirts the fundamental problem: the definition of Federal jurisdiction in the regulation of dredge and fill activities. The program would still cover all waters of the United States, including small streams, ponds, isolated marshes, and intermittently flowing gullies. We are left with a scope of jurisdiction that runs counter to the original intent of the legislation as passed by Congress.¹⁸⁶

He explained that the purpose of his amendment was to limit the jurisdiction of § 404, not the jurisdiction of the rest of the Act.¹⁸⁷ The issue of the jurisdiction of § 404 was debated. There was dispute over the original meaning of the Act but no dispute over the then-current interpretation of the Act by the Administration and the courts; those supporting the current interpretation opposed the floor amendment to cut back that interpretation with respect to § 404, and those opposing the current interpretation supported the amendment.¹⁸⁸ The amendment was defeated, by a 51-45 vote.¹⁸⁹

The vote on Senator Bentsen's floor amendment was nothing less than a Senate referendum on the then-current interpretation of the 1972 Act reflected in the Callaway case and the then-current Corps and EPA regulations with respect to § 404. This is the way the vote was represented, by both supporters and opponents.¹⁹⁰ No one suggested that the current interpretation of "navigable waters" to reach waters with no connection to navigability should be changed with respect to any portion of the Act other than § 404. The defeat of the amendment both confirmed the approach of the Senate Committee on the Environment and Public Works with respect to § 404 and affirmed the then-current pre-SWANCC judicial and administrative interpretation of the reach of the Act.

In conference, the Senate position prevailed.¹⁹¹ As Sen. Edmund S. Muskie (D-Me.) reported to the Senate, "the conference bill follows the Senate bill by maintaining the full scope of Federal Regulatory authority over all discharges of dredged or fill material into any or [sic] the Nation's waters."¹⁹² Sen. Howard H. Baker (R-Tenn.) repeated this conclusion:

The conferees have resolved the long-standing controversy that has engulfed the [§] 404 permit program for discharges of dredged and fill material. The solution presented in the Senate bill was adopted with only minor changes.

First, the conference bill retains the comprehensive jurisdiction over the Nation's waters exercised in the 1972 [FWPCA] to control pollution to the fullest constitutional extent. A permit program will continue to regulate dredged or fill material discharged into all our Nation's waters.¹⁹³

Statements in the House, while they tried to minimize the differences between the conference bill and the original House bill, were to the same effect.¹⁹⁴

This extended discussion of the legislative history behind the 1977 Amendments' rejection of the various bills to limit the jurisdiction of § 404 should demonstrate beyond any doubt that (1) Congress at the time of the 1977 Amendments believed that the current judicial and administrative interpretation of "navigable waters" did not contain any limitation regarding navigability; (2) members of Congress who disagreed with either the policy or the correctness of this interpretation tried to pass a bill to restrict the jurisdiction of § 404, but did not attempt to amend the definition of "navigable [31 ELR 10754] waters" generally in the Act, the current interpretation of which they understood not to include any limitation as to navigability; and (3) the attempts to restrict the jurisdiction of § 404 failed specifically because a majority of the Senate rejected any idea of limiting the jurisdiction of § 404 and because the House receded to the Senate's position in conference.

The § 404(g) Amendment

The government in SWANCC also argued that one of the amendments to § 404 actually passed in 1977 further confirmed and ratified the interpretation that "navigable waters" were not constrained in any way by concepts of navigability. The amendment was the adoption of § 404(g).¹⁹⁵ Section 404(g), which generally provides for the possible authorization to the states to administer the § 404 permit program in lieu of the Corps, by its terms does not allow states to administer the program in waters "which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce . . . , including wetlands adjacent thereto."¹⁹⁶ This language bears a striking resemblance to the description of the "traditionally navigable waters" that the Corps historically regulated under the Rivers and Harbors Act. The argument, then, is that if § 404's jurisdiction were limited to such traditionally navigable waters, there would be no situation in which states could administer the program, and § 404(g) would be meaningless. The Court's response in SWANCC was that Riverside Bayview Homes recognized that § 404's jurisdiction extends beyond navigable waters "under the classical understanding of that term."¹⁹⁷ But, of course, the Court in SWANCC also suggests that the decision in Riverside Bayview Homes is limited to deciding that wetlands adjacent to traditionally navigable waters are included within the coverage of the CWA,¹⁹⁸ and wetlands adjacent to traditionally navigable waters are also excluded from state administration under § 404(g). Thus, the argument would still remain that no waters would remain for possible state administration if "navigable waters" is limited to traditionally navigable waters and adjacent wetlands.

If, however, one reads Riverside Bayview Homes more broadly than the most crabbed reading, in a manner that the Court in SWANCC describes as "plausible,"¹⁹⁹ the CWA would also reach non-navigable tributaries and streams of navigable waters, which historically were not considered "navigable waters" by the Corps. These waters then would be subject to possible state administration under § 404(g).

There is, moreover, an additional category of waters excluded from the limitation in § 404(g), which still has a direct link to navigability: waters formerly navigable which no longer are navigable or susceptible to improvement to make them navigable. These waters are among those that the Corps has regulated under the Rivers and Harbors Act for some time and which were included in the Corps' original 1974 regulations²⁰⁰ as well as their 1975 regulations.²⁰¹ Accordingly, there are at least two categories of waters with some connection to navigability that would be available for state administration under § 404(g), and therefore the passage of that amendment cannot by its terms prove that Congress interpreted the term "navigable waters" to extend beyond any conception of navigability.

Nevertheless, the legislative history behind § 404(g), like the legislative history of the 1977 Amendments generally, reflects the congressional understanding that the judicial and administrative interpretation of "navigable waters" extended beyond any concept of navigability.

The origin of the exclusion of presently navigable waters from possible state administration under § 404(g) came from the House bill that would have limited the jurisdiction of all of § 404 to "navigable waters and adjacent wetlands,"²⁰² and which would have redefined "navigable waters" for purposes of § 404 as "all waters presently used, or are susceptible to use in their natural condition or by reasonable improvement as means to transport interstate or foreign commerce. . . ." In other words, the jurisdiction would have been identical to the jurisdiction which states cannot administer under § 404(g) today. The House report on the bill spent three and one-half pages explaining how current law, as a result of Callaway and the Corps' regulation, had expanded the statutory term "navigable waters" beyond any concept of navigability.²⁰³ Moreover, the bill also provided for authorization to states to administer the § 404 program in lieu of the Corps in wetlands adjacent to the newly defined and limited navigable waters.²⁰⁴ The bill as reported by the House committee and passed by the House contained these provisions but also provided authorization for statesto administer the § 404 program in intrastate freshwater lakes, as well as wetlands adjacent to navigable waters.²⁰⁵

In the Senate, the response to concerns about the jurisdictional reach of § 404 was not to attempt to limit the its reach (except on the floor of the Senate with Senator Bentsen's proposed but rejected amendment, described earlier), but rather to seek to facilitate the administration of the program in ways to mollify the concerned interests.²⁰⁶ One way to facilitate the program's administration was to allow for the authorization to states to administer the § 404 program in lieu of the Corps. Thus, the Senate bill also had a provision for authorizing states to administer the § 404 program.²⁰⁷ The conference essentially adopted the Senate provision regarding [31 ELR 10755] the authorization of a state to administer the § 404 program, although the description of the waters excluded from possible state administration derived from the House bill. In describing the new section, the conference report stated that it "allowed the Governor of any State to administer an individual and general permit program for the discharge of dredged and fill material into [Phase II and Phase III] waters after the approval of a program by the Administrator."²⁰⁸ Phase II and Phase III waters were those waters that the Corps had not regulated in its 1974 regulations but which it did regulate under its 1975 regulations.²⁰⁹ That is, Phase I waters were coastal waters, traditional navigable waters, and the wetlands adjacent to each.²¹⁰ Phase II waters were the primary tributaries to navigable waters, their adjacent wetlands, and lakes larger than five acres.²¹¹ Phase III waters were all other waters of the United States.²¹² Thus, the conference report's reference to Phase III waters necessarily included waters with no connection to navigability.

This legislative history thus reveals that § 404(g) was in fact one response to Congress' understanding that judicial and administrative interpretations of "navigable waters" extended beyond any concept of navigability, and that it was an attempt to make § 404, with its broad jurisdictional reach, palatable to interests concerned about the Corps' regulation.

The § 404(f) Amendment

The dissent in SWANCC argued that the adoption of § 404(f),²¹³ an additional amendment made in 1977, confirmed the judicial and administrative interpretation of "navigable waters" as including waters with no connection to navigability.²¹⁴ Section 404(f) declares that, along with certain other specified activities, the discharge of dredged or fill material "for the purpose of construction of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches" and "for the purpose of construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters" are not subject to regulation under the Act, other than the section regulating toxic discharges.²¹⁵ The argument here also as well is that unless Congress interpreted § 404 to extend beyond waters with some connection to navigation, there would have been no need to exclude these activities from the coverage of § 404. On the face of the provision, this would appear to be a powerful argument. After all, a farm or stock pond, an irrigation ditch, and a temporary sedimentation basin would not have any connection to traditionally navigable waters or navigability. Moreover, the legislative history confirms that concerns about the reach of the judicial and administrative interpretations of the reach of § 404 were the motivation behind § 404(f).²¹⁶ The Court's answer in SWANCC was nonresponsive: "As § 404(a) only regulates dredged or fill material that is discharged 'into navigable waters,' Congress' decision to exempt certain types of these discharges does not affect, much less address, the definition of 'navigable waters.'"²¹⁷ This simply does not explain why Congress would have exempted activities having no connection with navigable waters from § 404, if it understood the CWA only to reach waters having some connection with navigable waters.

Unfortunately, for those who desire uniformity, rationality, and clarity, both the text and legislative history of § 404(f) also contain suggestions that its provisions do not necessarily turn on the broadest interpretation of "navigable waters." In addition to stock and farm ponds, irrigation ditches, and temporary sedimentation ponds—all waters that arguably would be "waters of the United States" even if having no connection to navigability—§ 404(f) also exempts a number of activities that apparently have nothing to do with water at all.²¹⁸ Why would Congress exempt them from § 404's requirement for a permit to discharge into navigable waters, however defined? The legislative history indicates that Congress may have wished to exclude certain activities from § 404 in specific terms to reassure particular constituencies, even when it was otherwise clear that § 404 would not reach those activities. For example, the House bill to amend § 404 radically restricted the jurisdictional reach of "navigable waters," so as to clearly limit the jurisdictional waters to actual navigable waters and their adjacent wetlands, but it also exempted normal farming, silviculture, and ranching activities and the construction of farm and stock ponds and irrigation ditches, activities that clearly would not have been subject to the jurisdiction of the section in any case.²¹⁹ In other words, in the House at least, one stake through the heart of the vampire was not considered enough.

Legislative Acquiescence

When all is said and done, it is not clear that any provision of the 1977 Amendments necessarily confirms or ratifies textually Congress' understanding of the judicial and administrative interpretations of the reach of "navigable waters" under the Act as extending beyond any connection with navigability. Nevertheless, the legislative history indicates that the several amendments to § 404 in the 1977 Amendments are directly in response to concerns with those interpretations. Moreover, the legislative history demonstrates with a [31 ELR 10756] clarity difficult to dispute that members of Congress, whether they approved or disapproved of the judicial and administrative interpretations construing "navigable waters" to include waters with no connection to navigability, considered those interpretations to constitute "the law" at the time. As a result, those opposed to those interpretations sought to change the law by restricting the meaning of "navigable waters," although only with respect to § 404, acquiescing in the broad interpretation for other sections of the Act. Those attempts failed, as first the Senate specifically rejected a floor amendment to achieve that end and then the House receded on its provision that would have limited § 404 jurisdiction. In short, the evidence of congressional acquiescence to the judicial and administrative interpretations is overwhelming. The Court's statement that there was "no persuasive evidence that the House bill was proposed in response to the Corps' claim of jurisdiction over nonnavigable, isolated, intrastate waters"²²⁰ cannot be justified. Likewise, the Court's statement that there was "no persuasive evidence" that the House bill's "failure indicated congressional acquiescence to such jurisdiction"²²¹ also cannot be credited.

Perhaps the Court really meant to say that the evidence of congressional acquiescence in the 1977 Amendments was insufficient to justify a change in the original meaning of the CWA. That would be more consistent with the Court's discussion of Bob Jones University v. United States,²²² a leading case where the Court found congressional acquiescence to administrative interpretations. After describing the evidences of congressional knowledge and failure to act to overrule an Internal Revenue Service (IRS) interpretation involved in that case, the Court in SWANCC said: "Absent such overwhelming evidence of acquiescence, we are loath to replace the plain text and original understanding of a statute with an amended agency interpretation."²²³ In Bob Jones itself, however, the Court did not suggest that the evidence there was on the cusp of what might be enough. Instead, it said that the evidence there "[made] out an unusually strong case of legislative acquiescence in and ratification by implication of the [IRS] rulings."²²⁴ That Chief Justice William H. Rehnquist, the author of SWANCC, might read Bob Jones inaccurately is perhaps explained by the fact that he was the lone dissenter in Bob Jones, where he argued, obviously to no effect, that the evidence of acquiescence there was insufficient.²²⁵

Indeed, the parallels between the acquiescence in SWANCC and Bob Jones are striking. In Bob Jones, the IRS had interpreted the Internal Revenue Code to allow tax exemptions to private schools that practiced racial discrimination until it was enjoined from doing so by the U.S. District Court of the District of Columbia.²²⁶ Thereafter, the IRS issued a revenue ruling interpreting the tax code to prohibit tax exemptions for private schools that discriminated on the basis of race.²²⁷ This IRS interpretation immediately resulted in congressional hearings,²²⁸ just as the Corps' 1975 regulation interpreting "navigable waters" immediately resulted in congressional hearings on the subject.²²⁹ The first hearing on the IRS' interpretation was not the only hearing.²³⁰ Similarly, the Corps' interpretation in its 1975 regulation was likewise subject to subsequent hearings.²³¹ Numerous bills were introduced to overturn the IRS' interpretation.²³² Similarly, several bills were introduced to overturn the Corps' 1975 regulation.²³³ Unlike the bills to overturn the IRS' interpretation, however, which never emerged from committee, two of the bills to overturn the Corps' regulation were reported by House committees and passed by the House, thereby confirming awareness of all House members of the subject matter.²³⁴ In the Senate, not only did the Senate Committee on Environment and Public Works consider and reject the House-passed bill, but Senator Bentsen's floor amendment to restrict the Corps' jurisdiction in an identical fashion to the House bill was presented to and rejected by the whole Senate. Accordingly, what the Court said in Bob Jones is equally applicable with respect to the Corps' 1975 regulations: "It is hardly conceivable that Congress—and in this setting, any Member of Congress—was not abundantly aware of what was going on."²³⁵

In Bob Jones, the Court concluded that "in view of [Congress'] prolonged and acute awareness of so important an issue, Congress' failure to act on the bills proposed on this subject provides added support for concluding that Congress acquiesced in the IRS rulings."²³⁶ Not only was the Corps' 1975 regulation subject to the intense scrutiny of Congress, but Congress did more than merely "fail to act." Unlike situations where the failure of bills to be considered by committees or a house must be presumed to indicate disapproval of their provisions, as opposed to indicating merely lack of time or interest to give them consideration, the affirmative rejection of the House bills and the Bentsen Senate floor amendment conclusively indicates that a majority of Congress rejected the idea of restricting the Corps' jurisdiction.

In Bob Jones, the Court also found "evidence of Congressional approval" of the IRS' interpretation in the passage in [31 ELR 10757] 1976 of an amendment to the tax code prohibiting tax exempt status to social clubs that discriminated on the basis of race.²³⁷ While this amendment was consistent with the IRS' interpretation with respect to private schools, it cannot be said that the amendment was compelled by the interpretation or that it textually confirmed the validity of the IRS interpretation. Rather, the Court looked to the legislative history behind the amendment and found that both committee reports referenced the committee's understanding of the law with respect to schools, as reflected in the IRS' interpretation.²³⁸ Again, this is a perfect analogy to the situation with respect to the 1977 Amendments to § 404. While the amendments may not be compelled by the Corps' interpretation, they are consistent with it, and the legislative history reflects that the amendments were made in light of the Corps' interpretation.

Thus, Bob Jones would seem to provide strong support for a finding of congressional ratification by acquiescence. Similarly, Riverside Bayview Homes also supports a finding of congressional ratification by acquiescence. There, the Court noted that "the Corps' assertion of authority under § 404 over waters not actually navigable engendered some congressional opposition. . . . In the end, however, . . . Congress acquiesced in the administrative construction."²³⁹ Here, the Court's finding of congressional acquiescence supports such a finding in SWANCC, not by analogy, but because Riverside Bayview Homes involved precisely the same statutory provision and precisely the same legislative history as was involved in SWANCC. The Court in SWANCC, however, quoted a statement in Riverside Bayview Homes that "in both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation,"²⁴⁰ and from this concluded that the history only showed "Congress' desire to regulate wetlands adjacent to 'navigable waters.'"²⁴¹ However, this conclusion is inconsistent both with the Court's earlier findings in Riverside Bayview Homes as well as the facts.

Although the Court in Riverside Bayview Homes may have said that the debate in both chambers "centered largely on the issue of wetlands," its next sentence stated that "proponents of a more limited § 404 jurisdiction contended that the Corps' assertion over wetlands and other nonnavigable 'waters' had far exceeded what Congress had intended in enacting § 404."²⁴² The Court in Riverside Bayview Homes then related the history of the passage of the House bill that would have restricted Corps' jurisdiction to actually navigable waters and adjacent wetlands while excluding isolated waters and wetlands, the rejection of the identically worded Senate floor amendment, and the conference committee's rejection of the House approach.²⁴³ The Riverside Bayview Homes Court concluded with a quotation from Senator Baker describing the law as finally passed: "Retaining the comprehensive jurisdiction over the Nation's water exercised in the 1972 [FWPCA]."²⁴⁴ While the Court in Riverside Bayview Homes focused on Congress' concern with respect to wetlands, because that was the issue before the Court, the Court did not limit its conclusion as to what Congress knew and what its actions acquiesced to: the Corps' exercise of jurisdiction over waters (including wetlands) that were not connected navigation.

The facts support the conclusion of the Court in Riverside Bayview Homes, not the conclusion of the Court in SWANCC. In particular, there is no basis in the legislative history for finding acquiescence to the Corps' regulation with respect to wetlands adjacent to navigable waters but not to other waters and wetlands with no connection to navigability. The House bills in both 1976 and 1977 and the Bentsen Senate floor amendment in 1977 all would have eliminated jurisdiction over non-navigable waters and wetlands; all were ultimately rejected after full debate and consideration. It was this focused consideration of proposals to limit the Corps' asserted jurisdiction and their rejection that led the Court in Riverside Bayview Homes to find congressional acquiescence to the Corps' regulation.

Finally, much water has passed over the proverbial dam since 1977, and despite the Corps' and EPA's consistent exercise of jurisdiction over isolated, non-navigable, intrastate waters, and their repeated publication of regulations and interpretive statements specifying situations subject to regulation in such waters,²⁴⁵ Congress has never seen fit to amend the CWA to restrict that jurisdiction. Since 1977, from time-to-time, isolated attempts to re-raise the issue of the Corps' jurisdiction have been made, but none have gotten so far as a committee-reported bill, despite amendments to the Act in 1981, 1987, 1988, 1990, and 1994,²⁴⁶ and an amendment to § 404 in 1987.²⁴⁷ Moreover, since 1977, a number of courts have likewise upheld EPA's and the Corps' jurisdiction over non-navigable, intrastate, isolated waters.²⁴⁸ Thus, a one-quarter century of consistent interpretation, uninterrupted practice, judicial corroboration, and congressional acquiescence provides further evidence of congressional ratification of the Corps' and EPA's interpretation that "waters of the United States" are not restricted by considerations of navigability or connections to navigable waters.

[31 ELR 10758]

Clear Statement Requirement

If the above does not demonstrate that the language, purpose, and history of the CWA clearly establish that "waters of the United States" are not restricted to waters having some connection to navigability, then at least it shows that the language, purpose, and history of the CWA do not clearly restrict "waters of the United States" to waters with some connection to navigability. It was the Court's finding that the statute clearly precluded jurisdiction over intrastate, non-navigable, isolated waters, that provided its first justification for refusing to extend Chevron deference to the Corps' interpretation.²⁴⁹ The Court, however, had an additional argument for not extending Chevron deference: "Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result."²⁵⁰

Citing Morrison²⁵¹ and Lopez,²⁵² the Court said that the arguments as to how the migratory bird rule was within Congress' powers under the Commerce Clause "raise significant constitutional questions . . ., and yet we find nothing approaching a clear statement from Congress that it intended § 404(a) to reach [the waters involved in SWANCC]."²⁵³ Moreover, the Court said, permitting Corps jurisdiction over the "ponds and mudflats falling within the 'Migratory Bird Rule' would result in a significant impingement of the States' traditional and primary power over land and water use."²⁵⁴ This further counseled in favor of construing the statute to preclude such federal jurisdiction, because Congress had provided among the CWA's goals and policies the policy "to recognize, preserve, and protect the primary responsibilities and rights of States [with respect to addressing pollution] of land and water resources. . . ."²⁵⁵

One might first ask why the legislative history of the CWA does not suffice to provide the "clear indication." As discussed earlier, the legislative history contains clear statements that the Act should reach to the furthest extent of Congress' constitutional powers.²⁵⁶ In the very case the SWANCC Court cited for the need for a clear statement, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council,²⁵⁷ the Court had said that a clear indication in the legislative history could suffice to require the Court to decide the constitutional issue.²⁵⁸ It is difficult to imagine how much clearer legislative history could be on the issue. Both the House committee report on the original bill and the Senate conference committee report expressly stated that the jurisdictional waters be given "the broadest possible constitutional interpretation."²⁵⁹

As a separate matter, the doctrine of interpreting a statute to avoid a constitutional question has often been confused with the doctrine of interpreting a statute to avoid finding the statute unconstitutional. DeBartolo, the case cited by SWANCC, reflects this confusion.²⁶⁰ After stating the doctrine of construing a statute to avoid a constitutional question, it said the principle had its origin in Chief Justice John Marshall's opinion for the Court in Murray v. The Charming Betsy.²⁶¹ In The Charming Betsy, however, Chief Justice Marshall did not state that doctrine, but rather held that a statute should not be construed to violate the Constitution orthe Law of Nations.²⁶² The difference between the two doctrines is important, especially for textualist interpreters of statutes. The latter doctrine, the one supported by The Charming Betsy, involves interpretation of the text of the statute and interpretation of the Constitution in order to determine that there is indeed a conflict. Only then does the canon of construction, based on the assumption that Congress did not intend its statute to be unconstitutional, come into play, to attempt to find a construction of the statute that is not unconstitutional but that is still supportable as a matter of statutory interpretation. The former doctrine, the one used by the Court in SWANCC, avoids interpreting the statute and the Constitution, except to the extent to determine that one interpretation of the statute "raises serious constitutional questions." Only if Congress makes a "clear statement" indicating its intent to test the constitutional limits, will the Court actually determine the meaning of the statute and Constitution. As Justice Antonin Scalia has suggested, indeterminate tests, such as "serious" constitutional questions and "clear" statements, leave an inappropriate amount of discretion to judges to interpret statutes in ways not faithful to their text.²⁶³ He asks: "Where [do] courts get the authority to impose [these rules]? Can we really just decree that we will interpret the laws Congress passes to mean less or more than what they fairly say? I doubt it."²⁶⁴ The application of the doctrine of avoiding constitutional questions in SWANCC is an example of the Court's (ab)use of discretion.²⁶⁵ In Riverside Bayview Homes, the Court did not interpret the statute to avoid any constitutional question, but there one could substitute the words "wetlands found on private [31 ELR 10759] property that are part of wetlands that have no connection to navigable waters except for occasional flooding" for the words "ponds and mudflats falling within the 'Migratory Bird Rule'" and equally say that federal jurisdiction over them "would result in a significant impingement of the States' traditional and primary power over land and water use."²⁶⁶ The avoidance of the constitutional question in SWANCC is in fact a judgment about the constitutional question, but other than directing our attention to the general issue, the Court does not explain why that constitutional question is serious, or even why it is more serious than the question was in Riverside Bayview Homes.

The Constitutional Question

The Court is clearly right that the migratory bird rule, as well as other applications of the CWA to various waters, raises constitutional questions under the Commerce Clause, as do applications of other federal environmental statutes. It is perhaps remarkable, therefore, that with the exception of the Surface Mining Control and Reclamation Act (SMCRA)²⁶⁷ the constitutionality of these statutes under the Commerce Clause has never been assessed by the Court. It is certainly not for lack of opportunity.²⁶⁸ With respect to the CWA it may be less surprising because, whatever the extent to which the statute may reach, its basic jurisdiction over navigable waters of the United States seems well grounded in Commerce Clause jurisprudence. Certainly, the SWANCC Court believed the lack of connection to navigable waters was critical in that case and did not suggest any "serious constitutional question" with respect to the traditional navigable waters. One might reasonably ask, however, why not?

The granddaddy of all Commerce Clause cases, Gibbons v. Ogden,²⁶⁹ involved the question whether regulating steamboats traveling interstate was "regulating commerce . . . among the several States."²⁷⁰ Chief Justice Marshall, writing for the Court, held that it was, rejecting an interpretation of "commerce" as limited to "traffic, to buying and selling, or the interchange of commodities."²⁷¹ Instead, he said, "commerce" includes "commercial intercourse" between nations and parts of nations (i.e., between states), and regulation includes "prescribing rules for carrying on that intercourse. . . . All America understands, and has uniformly understood, the word 'commerce' to comprehend navigation."²⁷² One-half century later, in The Daniel Ball,²⁷³ Justice Stephen J. Field addressed the question whether the federal commerce power extended to the licensing and safety inspection of a steamer that traveled only on an intrastate river. First, the Court stated that an intrastate river could still be a navigable water of the United States because it was part of a network of waters over which commerce was being carried with other states and nations.²⁷⁴ Second, the Court held that, even though the steamer did not leave the one state, the cargo and passengers that it carried did, and therefore it was engaged in commerce among the states.²⁷⁵ Accordingly, the Court concluded that the Commerce Clause authorized the licensing and safety inspection of the steamer:

That power authorizes all appropriate legislation for the protection or advancement of either interstate or foreign commerce, and for that purpose such legislation as will insure the convenient and safe navigation of all the navigable waters of the United States, whether that legislation consists in requiring the removal of obstructions to their use, in prescribing the form and size of the vessels employed upon them, or in subjecting the vessels to inspection and license, in order to insure their proper construction and equipment.²⁷⁶

In other words, when the Court speaks of Congress' authority over navigable waters, it is referring to Congress' powers under the Commerce Clause to regulate those waters and activities thereon as they may affect commercial navigation. Merely because waters are navigable and therefore may be regulated for purposes of navigation, however, does not by itself mean that Congress has plenary authority over them. To the extent that Congress' power over waters stems from their navigability, the exercise of that power must relate to navigation. No decision of the Court has ever found that the navigability of waters per se subjects them to general federal regulation unrelated to navigation.²⁷⁷

[31 ELR 10760]

While some activities regulated under the CWA potentially could affect navigation, protection of navigation is not a purpose of the Act²⁷⁸ (because it is otherwise protected by the Rivers and Harbors Act of 1899),²⁷⁹ and most of the activities regulated by the CWA do not affect navigation.²⁸⁰ In short, navigation is not the basis upon which Congress has exercised its Commerce Clause authority under the CWA, whether or not the regulated activity takes place in navigable waters. Accordingly, not only is navigability of waters an irrelevant consideration for purposes of interpreting the jurisdiction of the CWA, it is also irrelevant in most cases for purposes of considering the constitutionality of CWA regulation.

Today, of course, we recognize many bases under the Commerce Clause for Congress to regulate activity, although they all must fit within one of the three categories enunciated most recently by the Court in Morrison²⁸¹:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may only come from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.²⁸²

Regulating navigable waters for the purpose of regulating (either facilitating or restricting) commerce on those waters would fall within the first category, regulating a channel of commerce. As explained above, however, this should not be the authority for most CWA regulation. It is the latter category which courts have generally used in assessing environmental regulations, and it is the latter category the Court addressed in the two cases upholding SMCRA²⁸³ and which the lower courts have addressed in challenges to CWA regulations.²⁸⁴

The SMCRA Decisions

Hodel v. Virginia Surface Mining & Reclamation Ass'n²⁸⁵ and Hodel v. Indiana²⁸⁶ both involved challenges to various provisions of SMCRA²⁸⁷ alleging various constitutional infirmities, including that they exceeded Congress' powers under the Commerce Clause.²⁸⁸ The challenges were unanimously rejected in both cases, although then-Justice Rehnquist concurred only in the judgment and filed a separate opinion.²⁸⁹

SMCRA is a comprehensive law "to protect society and the environment from the adverse effects of surface coal mining operations."²⁹⁰ Passed in 1977, it built upon the co-operative federalism model contained in the Clean Air Act (CAA),²⁹¹ the CWA,²⁹² and the Resource Conservation and Recovery Act (RCRA)²⁹³ passed before it. It provided for an interim regulatory program enforced by the federal government until permanent regulatory programs meeting federal standards were adopted by the states.²⁹⁴ In the Virginia Surface Mining case, the challenge was primarily to the requirements that surface coal miners restore the land after mining to its prior condition and its approximate original contour, segregate and preserve the topsoil, minimize disturbance to the hydrologic balance, and revegetate mined areas.²⁹⁵ The claim was that the Act's "principal goal is regulating the use of private lands within the borders of the States and not . . . regulating the interstate commerce effects of surface coal mining."²⁹⁶ The Court said that "when Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational."²⁹⁷ Here, Congress had found that:

Many surface mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural, and forestry purposes, by causing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property by degrading the quality of life in local communities, and by counteracting governmental [31 ELR 10761] programs and efforts to conserve soil, water, and other natural resources.²⁹⁸

The legislative record, the Court said, "provides ample support for these statutory findings,"²⁹⁹ samples of which support it provided in its opinion.³⁰⁰

Given these findings, the Court offered no fewer than three different bases upon which to uphold SMCRA's constitutionality under the Commerce Clause. First, the "commerce power 'extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.'"³⁰¹ It is not exactly clear how this articulated commerce power applies to the circumstances in Virginia Surface Mining. The quotation is originally from a case involving the regulation of the price of intrastate sales of milk. The Court here concluded, unsurprisingly, that because the intrastate milk competed with milk shipped in interstate commerce, if the intrastate sales of milk escaped regulation, the regulation of the sales of milk in interstate commerce would be thwarted.³⁰² The Court in Virginia Surface Mining did not explain how the facts in its case related to this doctrine, other than as evidence that "denomination of an activity as 'local' or 'intrastate' does not resolve the question whether Congress may regulate it under the Commerce Clause."³⁰³ Similarly, it is unclear how this justification for exercise of commerce power would apply to the regulation of discharges under the CWA.

The second basis for the SMCRA regulations under the Commerce Clause was that: "Congress may regulate the conditions under which goods shipped in interstate commerce are produced where the 'local' activity of producing these goods itself affects interstate commerce."³⁰⁴ This clearly is related to the facts in Virginia Surface Mining, where the coal to be mined would be shipped interstate, and the local activity of mining would itself affect interstate commerce through the various bad effects of unregulated surface mining. However, it is not clear that this justification would apply to the CWA, because, unlike SMCRA, the CWA does not by its terms regulate activity which produces goods to be shipped in interstate commerce. Thus, even if the CWA were responding to environmental degradation like Congress found in SMCRA to be caused by surface mining of coal, the object of the regulation is not defined or described by the economic activity of the polluter. To the contrary, the permit requirements of §§ 402 and 404 are applicable to any person who discharges a pollutant into a water of the United States. No doubt, as a matter of fact, the discharges requiring permits under § 402 for the most part involve industrial discharges associated with the production of goods in interstate commerce, but nothing in the Act so requires. Similarly, most of the activities that require § 404 permits are probably also engaged in as part of an economic activity involving either the production of goods (e.g., agricultural or silvicultural products) or commerce (e.g., building malls, industrial parks, or subdivisions). Again, however, nothing in § 404 limits the permit requirement to such activities.

The Virginia Surface Mining Court stated that the third basis for the exercise of the commerce power was that "we agreed with the lower federal courts that have uniformly found the power conferred by the Commerce Clause broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one State."³⁰⁵ There are a number of problems raised by this statement. As an initial matter, nothing in the congressional findings, nor anything in the legislative history cited by the Court, refers to any transboundary environmental effects from surface mining of coal. While one might imagine that "floods" and "polluting of water" could cause problems in more than one state, nothing in SMCRA so states, and the specific reference to "degrading the quality of life in local communities,"³⁰⁶ suggests a more focused concern. The second problem is that the Court's statement, other than its mention of lower court decisions, does not include any explanation as to why "environmental hazards that may have effects in more than one State" may be regulated under the Commerce Clause. An examination of the cases cited by the Court reflect a number of rationales³⁰⁷

pollution of a lake used for recreational purposes by out-of-state travelers would reduce interstate commerce from tourism.³⁰⁸

The United States Congress was convinced that uncontrolled pollution of the nation's waterways is a threat to the health and welfare of the country, as well as a threat to its interstate commerce.

Obviously water pollution is a health threat to the water supply of the nation. It endangers our agriculture by rendering water unfit for irrigation. It can end the public use and enjoyment of our magnificent rivers and lakes for fishing, for boating, and for swimming. These health and welfare concerns are, of course, proper subjects for [31 ELR 10762] Congressional attention because of their many impacts upon interstate commerce generally.³⁰⁹

air pollution has an effect upon commerce and hence can be validly regulated by Congress.³¹⁰

Motor vehicles are indisputably in commerce. Even though any individual motor vehicle may travel exclusively within one state, commerce by motor vehicle sufficiently touches multi-state concerns as to be properly regulable. Similarly, the problem of pollution itself involves the nation as a whole; pollutants are not respecters of state borders.³¹¹

Movement of pollutants across state lines constitutes interstate commerce subject to the power granted to Congress by the Constitution to regulate such commerce. . . .

. . . .

The growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation.³¹²

In short, neither the Court nor any of the lower courts it cited have provided any meaningful analysis of why or to what extent Congress can exercise commerce power to respond to environmental problems, beyond the asserted general causal connection that pollution causes numerous adverse effects and these adverse effects can have an effect on the economy and therefore interstate commerce.³¹³

In addition to resting on the congressional findings regarding the adverse environmental effects of surface mining of coal, the Virginia Surface Mining Court also mentioned the congressional finding that SMCRA regulation was necessary "to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders."³¹⁴ In other words, economic pressures to produce coal at the lowest possible cost would tend to interfere with states adopting or maintaining adequate standards on surface mining, the so-called race to the bottom. The Court said that "the prevention of this sort of destructive interstate competition is a traditional role for congressional action under the Commerce Clause."³¹⁵ The Court cited to United States v. Darby,³¹⁶ in which it was said that "interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows."³¹⁷ One could, of course, substitute the words "environmental laws" for "labor conditions" and apply it to SMCRA and also to the CWA—if the latter Act were deemed to apply to producers of goods that would enter interstate commerce. Indeed, Justice Stevens, dissenting in SWANCC, referred to this argument in Virginia Surface Mining as part of his argument for why the migratory bird rule was within the Commerce Clause power of Congress.³¹⁸

Finally, the Virginia Surface Mining Court also mentioned that Congress had noted "that inadequacies in existing state laws [regulating surface mining of coal] and the need for uniform minimum nationwide standards made federal regulations imperative."³¹⁹ This is often a motivation for federal regulation, but standing alone it would not appear to provide a constitutional justification for federal regulation under the Commerce Clause.

The case of Indiana³²⁰ raised a slightly different issue. There, the challenge was to the restrictions on surface mining of prime farmland. Essentially, SMCRA prohibits surface mining of coal on prime farmland unless the operator can demonstrate the "technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management. . . ."³²¹ The lower court had found these provisions unconstitutional.³²² The Supreme Court disagreed. It stated that "Congress was entitled to find that the protection of prime farmland is a federal interest that may be addressed through Commerce Clause legislation."³²³ This statement is largely unexplained. On the one hand, it might have meant that the Court believed that the Commerce Clause authorized Congress to protect any important national resource that was the source of goods that would end up in interstate commerce. On the other hand, it may have been just a different way of stating what it later said: "Congress had a rational basis for finding that surface coal mining on prime farmland [31 ELR 10763] affects interstate commerce in agricultural products."³²⁴ The Court elaborated on this point by saying: "Congress adopted the Surface Mining Act in order to ensure that production of coal for interstate commerce would not be at the expense of agriculture, the environment, or public health and safety, injury to any of which interests would have deleterious effects on interstate commerce."³²⁵ Here, the rationale is tied both to the regulation of the production of a good for interstate commerce and to the adverse effects such production indirectly has on interstate commerce in some other goods. In addition, the Court noted the congressional goal of avoiding the "race to the bottom."³²⁶

Justice Rehnquist concurred in the judgments in both Virginia Surface Mining and Indiana but did not concur in the opinions.³²⁷ In both, hebelieved the Court had "exhaustively analyzed Congress' articulated justifications for the exercise of its power under the Commerce Clause and concluded that Congress' detailed factual findings as to the effect of surface mining on interstate commerce [were] sufficient to justify the exercise of that power."³²⁸ Accordingly, while he indicated that Congress had "stretched its authority to the 'nth degree,'"³²⁹ he could concur in the judgments. What kept him from concurring in the opinions was their statements that regulations will be upheld if the "regulated activity affects interstate commerce,"³³⁰ rather than saying "substantially affects interstate commerce."³³¹

These two cases, as the Court's only consideration on the merits of a Commerce Clause challenge to an environmental statute, merit consideration in assessing how the Court might rule on the merits with respect to a challenge under the Commerce Clause to the constitutionality of the CWA generally or of the regulation of isolated, intrastate, non-navigable waters in particular. Of course, that was then, and this is now.

Lopez and Morrison

The Court's decision in Lopez³³² was the first Supreme Court decision to hold a federal statute unconstitutional under the Commerce Clause since 1936. In Lopez, the Gun-Free School Zones Act of 1990 made it a federal crime for a person to knowingly possess a firearm within 1,000 feet of a school.³³³ The government argued that possession of guns near schools had a substantial effect on commerce in either of two ways: first, possession of the firearm might lead to violent crime and violent crime affects interstate commerce both because insurance costs are spread across the country and because violent crime reduces persons' willingness to travel interstate to places deemed unsafe; and second, possession of firearms in schools threatens the educational process by threatening the learning environment, resulting in less educated citizens, therefore a less productive citizenry, and therefore a substantial adverse impact on the nation's economic well-being.³³⁴ The Court, in a 5-4 decision in an opinion written by Chief Justice Rehnquist, rejected that argument. In Lopez the Court established or clarified several new aspects of Commerce Clause jurisprudence.

First, as indicated by then-Justice Rehnquist in his separate opinion in the two Hodels, Congress can only regulate intrastate activity when that activity has a substantial effect on interstate commerce, not just when it has some effect.³³⁵

Second, quoting from then-Justice Rehnquist's concurrence in the two Hodels, whether or not a particular activity substantially affects interstate commerce is ultimately a judicial question,³³⁶ part of the Court's "independent evaluation of constitutionality under the Commerce Clause."³³⁷ Rather than deferring to congressional findings or asking only if the congressional finding is rational,³³⁸ or invalidating legislation "only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects commerce,"³³⁹ the Court said that congressional findings merely "enable [the Court] to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce."³⁴⁰

Third, the Court characterized all of its past cases that relied on an activity having substantial effects on interstate commerce, including the two Hodels, as involving "economic activity" that substantially affected interstate commerce.³⁴¹

Fourth, the implications of the government's argument would justify congressional regulation of "not only all violent crime, but all activities that might lead to violent crime."³⁴² Similarly, "under the Government's 'national productivity' reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example."³⁴³ This "would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States,"³⁴⁴ thereby effectively destroying the limitation presupposed by Article I's enumeration of congressional powers.

Justice Kennedy, joined by Justice O'Connor, wrote a concurring opinion in which he articulated even more specifically the concern that the basic concept of federalism was at risk in a case such as Lopez.³⁴⁵ At the same time, he focused on the noncommercial aspect of the case, noting that "neither the actors nor their conduct [31 ELR 10764] has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus."³⁴⁶ This apparently reflected his belief that the Court's history of interpreting the Commerce Clause had properly settled on an understanding that the United States consists of a "single, national market," and that Congress' powers under the Commerce Clause are necessarily expansive in its regulation of that market. "Absent a stronger connection or identification with commercial concerns that are central to the Commerce Clause," he believed the interference with federalism posed by the regulation in Lopez was unwarranted.³⁴⁷

Justice Thomas also concurred in a separate opinion.³⁴⁸ While he concurred in the majority opinion, he took the occasion to write that "our case law has drifted far from the original understanding of the Commerce Clause."³⁴⁹ In particular, his argument is that the "substantial effect" test, first articulated by the New Deal Court, has no basis in the Commerce Clause and should be abandoned.

The case of Morrison³⁵⁰ reaffirmed Lopez and its approach to "substantial effect" cases under the Commerce Clause by the same 5-4 vote.³⁵¹ In Morrison, the statute involved was the civil damages provision of the Violence Against Women Act,³⁵² which provides a federal remedy for victims of gender-motivated violence.³⁵³ Here, unlike in Lopez, there were congressional findings supporting the Act.³⁵⁴ These findings first catalogued the widespread nature of gender-motivated violence and then described how that violence affected interstate commerce: "By deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; . . . by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products."³⁵⁵ However, this description suffered the same faults as the government's arguments in Lopez, in which

the but-for causal chain from initial occurrence of violent crime (the suppression of which has always been the prime object of the States' police power) [leads] to every attenuated effect upon interstate commerce. If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption.³⁵⁶

Likewise, the Act's civil damages provision mirrored the law in Lopez in that it did not relate to any commercial or economic activity. The Court said:

While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where the activity is economic in nature.³⁵⁷

The Court's decision in Lopez did not have immediate impacts in the lower courts.³⁵⁸ As one CWA case said in dismissing an argument based on Lopez, "we do not agree that Lopez is a radical sea change which invalidates the decades of Commerce Clause analysis."³⁵⁹ Accordingly, general statements that it was within Congress' powers to regulate the discharge of pollutants into public sewers which would eventually flow into streams and rivers,³⁶⁰ or that "prior to Lopez, it had been established that Congress' powers under the Commerce Clause were broad enough to permit regulation of waters based on the presence of migratory birds"³⁶¹ appeared sufficient. Whether these responses were adequate then, after SWANCC they clearly are not.

The most obvious problem caused by Lopez and Morrison relates to the so-called aggregation principle. It would be a rare situation where a particular action regulated by the CWA or any environmental law would itself have a substantial effect on interstate commerce. In the typical case the government's argument would be that the government must be able to regulate the particular activity because that class of activities has a substantial effect on interstate commerce. For example, in Virginia Surface Mining, when the Court referred to the effects of surface mining, it was referring to the aggregated effects of unregulated surface mining, not the particular effects of one surface mine. Similarly, in SWANCC the government argued that destruction of habitat for migratory birds—the class of activity involved, of which the filling of the ponds involved in SWANCC was merely one example—would have a substantial effect on interstate commerce by depleting the number of migratory birds, which would in turn reduce the commerce in hunting and bird watching.³⁶² In Wickard v. Filburn,³⁶³ the Court had seemingly endorsed such aggregation, when it recognized that even though a particular action being regulated might appear to be trivial when viewed in isolation, when aggregated with other like activities it could have substantial effects on interstate commerce. Lopez and Morrison, however, suggest distinct limits on the aggregation principle.

In Lopez and Morrison the government sought to aggregate the effects of guns near schools and gender-motivated violence, but the Court held that the aggregation principle did not reach these activities. In both cases, the Court noted that the activity asked to be aggregated was not "economic activity." The established principle, the Court said, is that "where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained."³⁶⁴ [31 ELR 10765] In Virginia Surface Mining, the Act regulated surface mining of coal, which the Court regarded as economic activity, but in SWANCC the statute regulates discharging dredged or fill material into waters of the United States, which may or may not involve economic activity. Moreover, neither the Corps' nor EPA's regulations defining "navigable waters" specify that the activity regulated be economic activity. This raises the question whether the effects of the fill of the ponds involved in SWANCC should be aggregated with other fills affecting migratory bird habitat, or whether as in Lopez and Morrison aggregation would be beyond existing doctrine. Of course, the Court in SWANCC did not reach the constitutional question, so it did not resolve this issue, an issue that will necessarily be recurring in other CWA and environmental cases, because for the most part these laws do not specify that the regulated activity be of an economic nature.

The Constitutionality of the CWA

Whatever the impacts of Lopez, Morrison, and SWANCC, there are, of course, a large number of applications of the CWA which clearly fall within Congress' traditional powers to regulate navigation. The discharge of flammable materials into navigable waters, whatever harm it may have on the environment, also causes a serious threat to waterborne commerce. The discharge of dredged or fill material into actually navigable waters can have the effect of impeding navigation. The problem raised by Lopez and Morrison relates to discharges to waters that do not and cannot, by themselves or as aggregated with like discharges, have an effect on navigation. Moreover, these discharges are probably the majority of regulated discharges under the CWA, either because the discharge is not to a navigable water or because the discharge is not of a type that would affect navigation or waterborne commerce. They are certainly the discharges the history of the CWA laid most emphasis on. Are there ways, post-Lopez and Morrison, to justify the extension of Commerce Clause power over these discharges?

Plenary Authority Over Navigable Waters

The Court in SWANCC and some other courts have seemed to think it important whether the water to which the discharge is made is navigable or somehow connected to a navigable water. Certainly, Congress' powers under the Commerce Clause over navigable waters is great, but as discussed earlier³⁶⁵ the mere fact that waters are navigable waters or somehow connected to navigable waters does not give Congress plenary authority over those waters. Rather, Congress' power is plenary only with respect to navigation. Protecting the aquatic ecosystem, or even the fishable and swimmable quality of navigable waters,³⁶⁶ simply does not relate to navigation.

The one aspect of a criterion based on navigable waters is that at least those waters have traditionally been, as a practical matter, subject to federal regulation. Thus, to the extent that Lopez and Morrison are based in part on an attempt to distinguish "between what is truly national and what is truly local,"³⁶⁷ it might be argued that navigable waters, even "navigable waters" broadly construed, fall in the truly national category and therefore the federal government has a broader ability to regulate those waters even for non-navigable purposes. Non-navigable waters, it might be said, because they have not historically been subject to federal regulation, should be considered local as a general matter, subject to federal regulation only on the most direct and compelling connection to interstate commerce. Such an argument is attractive, both because it responds to the attempt in Lopez and Morrison to draw lines between the local and national and because it creates a fairly easily determined criterion for distinguishing appropriate matters for federal regulation from local matters. Its only drawback is that it has no analytical basis in whether the actual activity regulated has any particular effect on interstate commerce and little doctrinal basis in existing case law. Moreover, to say that non-navigable waters have not historically been subject to federal regulation would have to ignore the last 20 years, if not the last 60 years of federal regulation of waters. Certainly for the last 20 years the Corps and EPA have exercised jurisdiction over non-navigable waters under the CWA and have consistently been upheld by the courts—until SWANCC. In addition, since at least Federal Power Commission v. Union Electric Co.,³⁶⁸ if not United States v. Appalachian Electric Power Co.,³⁶⁹ the Supreme Court has recognized federal authority over even non-navigable waters when those waters otherwise were connected to interstate commerce, whether through navigation, power generation, or flood control.³⁷⁰ Still, even if these factors suggest that non-navigable waters may be subject to congressional regulation, they do not foreclose the idea that one could apply the Court's tests with less strict scrutiny with respect to navigable waters, because they are perceived as being more imbued with national concerns.

Interstate Waters and Interstate Pollution

A number of lower court cases have assumed that Congress can regulate interstate waters or interstate pollution simply because they are interstate.³⁷¹ Clearly, EPA in adopting its regulations in 1973 and the Corps in adopting its regulations [31 ELR 10766] in 1975³⁷² assumed they could regulate interstate waters, although historically "interstate waters" had not been a specified category of waters among the "navigable waters of the United States" which the Corps had regulated under the Rivers and Harbors Act of 1899.³⁷³ Moreover, there are hints in some Supreme Court decisions that might lead one to believe that interstate waters are subject to congressional regulation, simply by reason of their being interstate. For example, in City of Milwaukee v. Illinois,³⁷⁴ the Court referred to the 1972 CWA as "not merely another law 'touching interstate waters' of the sort surveyed in Illinois v. Milwaukee and found inadequate to supplant federal common law,"³⁷⁵ perhaps suggesting that federal laws could be based on the fact that they touched interstate waters. Similarly, the Court hinted in Virginia Surface Mining that Congress can regulate interstate pollution simply because it is interstate when it said that it agreed with the lower courts that had found federal regulation authorized under the Commerce Clause with respect to "air or water pollution, or other environmental hazards that may have effects in more than one State."³⁷⁶ And in SWANCC itself, the Court took pains to specify that the waters in question were not only non-navigable but intrastate, as if that made a difference.³⁷⁷

Nevertheless, when one seeks the authority for plenary congressional authority over interstate waters per se or to regulate interstate pollution simply by reason of its being interstate, one seeks in vain. This may seem surprising in light of the clear authority of federal courts to resolve disputes between states under federal common law, including disputes involving transboundary pollution. In Illinois v. Milwaukee,³⁷⁸ for example, the Court held that federal commonlaw provided a law of nuisance applicable to transboundary water pollution.³⁷⁹ Surprising, perhaps, but the explanation is simple. The U.S. Constitution provides for the federal courts to resolve cases and controversies, and cases and controversies involving states are specifically included.³⁸⁰ When the dispute is between states, the Supreme Court has original jurisdiction.³⁸¹ In the course of deciding such cases, the Court established a federal common law of nuisance governing interstate pollution.³⁸² The Constitution, however, does not provide any general authority to Congress to resolve interstate disputes. Of course, to the extent that those disputes involve commerce or activities that affect the navigability of navigable waters, Congress has authority under the Commerce Clause to regulate the commerce or navigable waters and thereby resolve the dispute.³⁸³ Rather than entrust Congress with a general authority to legislate to resolve disputes between states, the Constitution contains the Compact Clause.³⁸⁴ Not only was this the method used from the beginning of the Republic for resolving boundary disputes, but it also has been the means used historically to address flood control, prevention of pollution, and the conservation and allocation of water supplied by interstate streams.³⁸⁵

In SWANCC the government floated an interesting theory that

like water flowing in an interstate river, migratory birds constitute a natural resource of substantial economic importance that has no permanent locus in a single State. Because 'the subject matter is only transitorily within the State' where the regulated activity occurs, the birds are appropriately regarded as a shared resource of the several States.³⁸⁶

Even here, however, the government did not argue that this by itself provided authority under the Commerce Clause or otherwise to regulate this national natural resource. Rather, it used this theory to demonstrate why protection of migratory birds was in its nature national, instead of in its nature local, and therefore should not raise the concerns expressed in Lopez and Morrison.³⁸⁷

Just as there appears to be no authority for Congress to legislate to resolve interstate problems generally, there does not appear to be any authority for Congress generally to legislate federal common law. Again, nothing in the text of the Constitution would appear to authorize such legislation, nor do any Court decisions ratify such authority. For example, in City of Milwaukee, the Court found that the CWA had the effect of preempting federal common law governing interstate water pollution.³⁸⁸ The dissent disagreed and suggested that the Court had a special responsibility to resolve disputes among states that should not be easily overridden by statute.³⁸⁹ The majority responded by saying: "Whether interstate in nature or not, if a dispute implicates 'Commerce . . . among the several states' Congress is authorized to enact the substantive federal law governing the dispute."³⁹⁰ This statement clearly suggests that Congress' authority for displacing judge-made federal common law must stem from the enumerated powers in Article I, not some inherent power to legislate in place of federal common law. Similarly, in Arizona v. California,³⁹¹ the Court held that Congress had by statute apportioned the waters of the Colorado River impounded by the Boulder Dam constructed by the Bureau of Reclamation, thereby overriding any judicial equitable apportionment [31 ELR 10767] of the water under federal common law. Again, however, the Court did not explain Congress' power to allocate this federally impounded water on the basis of any ability to legislate generally in the area of federal common law. Rather, the Court specified that the law "was passed in the exercise of congressional power to control navigable water for purpose of flood control, navigation, power generation, and other objects, and is equally sustained by the power of Congress to promote the general welfare through projects for reclamation, irrigation, or other internal improvements."³⁹² Accordingly, Congress' power to legislate must be grounded in its enumerated powers and does not extend to interstate disputes, interstate waters, or to replacing federal common law except as any such legislation is otherwise based on the enumerated powers.

Nevertheless, like the mistaken assumptions concerning congressional power over navigable waters, the mistaken assumptions concerning interstate waters or interstate effects of pollution may still reflect a notion of what is truly a national interest and what is truly a local interest. After all, federal common law did apply to interstate water pollution specifically because it was inherently not a purely local problem and because it involved "an area of national concern."³⁹³ Thus, again, to the extent that the Court in Lopez, Morrison, and SWANCC was concerned with limiting federal authority to those matters truly national, it might well apply its standards with less rigor if the regulation involved interstate waters or pollution regarded as likely to raise interstate issues.

The Race to the Bottom or Eliminating Destructive Competition

In Virginia Surface Mining,³⁹⁴ one of the justifications for congressional power under the Commerce Clause was that it was necessary to regulate surface mining of coal to ensure that competition in interstate commerce among sellers of coal produced in different states would not be used to interfere with the ability of states to have adequate standards for surface mining of coal.³⁹⁵ This rationale built upon the determination of the Court in Darby,³⁹⁶ which held that "interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard conditions . . . , which competition is injurious to the commerce and to the states from and to which the commerce flows."³⁹⁷ This "race to the bottom" theory finds some support in the economic analysis of law.³⁹⁸ On the other hand, the "current wisdom" seems to be running the other way, questioning whether there is indeed a "race to the bottom."³⁹⁹ However this academic argument turns out, it seems unlikely that the Court would in the face of express congressional findings reject a determination that a "race to the bottom" existed. This is precisely the type of legislative judgment that does not seem amenable to proof one way or the other. What does seem more likely would be to apply the doctrine strictly. This would require, first, that Congress actually make such findings, as it did in SMCRA,⁴⁰⁰ because, given the academic debate on the subject, it is not obvious that a lack of minimum federal standards will indeed result in a "race to the bottom." This by itself would eliminate the CWA, for there are no such findings. Even if one were to resort to legislative history for such "findings," they are not apparent in the legislative history of the CWA, as they are, for example, in the CAA.⁴⁰¹ Second, it would require that the regulated activity actually be one for which there is competition. In SWANCC, for example, such a showing would have been difficult, for there is little evidence that states compete for solid waste disposal sites, and a lot of evidence to the contrary.

Pollution Causes Substantial Effects on Interstate Commerce

This, of course, has been the core argument behind most environmental legislation, and it was the government's argument in SWANCC. Sometimes the articulation of this justification has been more specific, such as in Virginia Surface Mining, when the Court said that:

This Court has long held that Congress may regulate the conditions under which goods shipped in interstate commerce are produced where the "local" activity of producing these goods itself affects interstate commerce.⁴⁰²

This statement, like the Court's application of this rule to the situation under SMCRA,⁴⁰³ has two separate links to interstate commerce. First, the activity producing the effects must itself be involved in interstate commerce; second, the effects must adversely affect interstate commerce. Accordingly, this statement seems but a different way of expressing the idea enunciated in Lopez and Morrison that only the effects of economic activity may be aggregated in order to assess the effects on interstate commerce.

In past cases where the Court has upheld Commerce Clause power under this rationale, the statutes have by their terms applied to economic activities.⁴⁰⁴ Some provisions of [31 ELR 10768] the CWA apply by their terms to facilities engaged in economic activity,⁴⁰⁵ but these are the exception. The most comprehensive provisions⁴⁰⁶ simply restrict "point sources" of pollution, a term defined by the place from which the pollution enters waters rather than the activity involved.⁴⁰⁷ Nevertheless, virtually all point sources are in fact engaged in economic activity and their pollution is an incident to that activity. This is reflected in the legislative history in terms of who polluters were and undoubtedly would be supported by a sample of permits actually issued. Moreover, much of the CWA is written in ways that clearly presume that the regulated entities will be engaged in economic activities.⁴⁰⁸ In addition, these economic activities are not unrelated to the waters being regulated; indeed, invariably the regulated entities are using the waters for economic purposes. With respect to matters regulated under § 402, this usually involves the use of the waters for waste disposal. With respect to matters regulated under § 404, the use of the waters or wetlands is usually for the purpose of siting developments of one form or another. In any case, the question remains whether the fact that those who are regulated are actually engaged in economic activities is sufficient to characterize the CWA as applying to economic actors, or whether the statute mustspecify that those who are regulated are involved in economic activities.

In Lopez the Court was uninterested in the fact that Lopez had actually brought the gun to the school to deliver it to a person who had purchased it; that is, the fact that Lopez was engaged in economic activity and commerce when he violated the Gun-Free School Zones Act had no bearing on the case. That was an irrelevant fact, because nothing in the elements of the crime required any economic or commercial activity. The same could be said under the basic provisions of the CWA, whether or not it was enforced civilly or criminally, and in SWANCC the Court seemed to evidence some skepticism as to the connection between Congress' commerce power and SWANCC's "economic" activity of creating a solid waste disposal facility as a basis for the migratory bird rule.⁴⁰⁹

Ultimately, this analogy should fail. In Lopez Congress had not found or enacted the law on the well-founded belief that the overwhelming number of situations in which guns were brought near or to schools occurred as an incident to economic or commercial activity. In enacting the CWA, however, Congress did in effect make a rational determination that discharges of a pollutant into waters of the United States from a point source are incident to economic activity. SWANCC is not to the contrary. In SWANCC the Court did not question that SWANCC's activity was "plainly of a commercial character."⁴¹⁰ Properly construed, the Court's problem was on the effects part of the calculus. If in Virginia Surface Mining Congress had regulated persons excavating more than 250 tons a year of material by "contour, strip, auger, mountaintop removal, box cut, open pit, and area mining,"⁴¹¹ rather than regulating persons engaged in surface mining of coal, there would be no less a basis for concluding that the activity regulated was economic activity. Thus, at least a person whose discharges are incident to economic activity should have no basis for arguing that the CWA unconstitutionally regulates his discharges, if his discharges have an effect on interstate commerce.⁴¹² Nor should that person have any basis for arguing against the aggregation of his economic activities to determine whether the effect of the aggregated activities on interstate commerce is substantial.

It might be argued that there is an alternative way to implicate Commerce Clause powers over pollution. In Virginia Surface Mining the Court also said that "activities causing air and water pollution, or other environmental hazards that may have effects in more than one State" are subject to congressional regulation.⁴¹³ This languageactually could be read to suggest that no connection at all to interstate commerce is required for Congress to regulate air or water pollution that has effects in more than one state. Earlier, however, this Article argued that there is no legitimate authority for Congress to regulate pollution merely because it travels interstate. Moreover, in context, the statement in Virginia Surface Mining that the effects occur in more than one state would appear to refer to effects that would affect interstate commerce. Not only does the statement follow extensive quotations from the legislative history of SMCRA and express [31 ELR 10769] congressional findings specifying the effects on interstate commerce from surface mining of coal,⁴¹⁴ but it also purports to reflect what lower courts had already held.⁴¹⁵ Thus, the Court does not seem to have taken a considered view that no effects on interstate commerce are required when interstate pollution is involved. One can then ask why the pollution must be interstate if it otherwise has effects on interstate commerce. In fact, the above-quoted language from Virginia Surface Mining has often been construed as meaning simply that the Commerce Clause authorizes regulation of pollution that affects interstate commerce.⁴¹⁶

Accordingly, the Virginia Surface Mining statement is nothing less and nothing more than a requirement that air or water pollution or other environmental hazards affect interstate commerce in order to come within Congress' commerce power. But what is missing from this formulation is the word "substantially," precisely what then-Justice Rehnquist noted in his opinion concurring in the judgment.⁴¹⁷ After Lopez there is no doubt that a substantial effect on interstate commerce is required.⁴¹⁸ Establishing a substantial effect invariably involves aggregating the effects of the class of activities, and after Lopezand Morrison it would appear that only economic activities can be aggregated. Accordingly, nothing in Virginia Surface Mining seems to ease the burden of satisfying the requirements of Lopez and Morrison.

In order to satisfy those requirements there must be a showing that a class of activities regulated by the CWA has a substantial effect on interstate commerce. The first issue here is the proper definition of the class of activities. While a class may be defined too narrowly,⁴¹⁹ it can also be defined too broadly. For example, to say that "water pollution" as a class of activities substantially affects interstate commerce would be to define the class too broadly.⁴²⁰ Otherwise, there would have been no constitutional question raised in SWANCC. In SWANCC the proper class of activities was defined by the migratory bird rule itself: the discharge of dredged or fill material into a water that would not have any effect on interstate commerce other than its effect on the habitat of migratory fowl. As a practical matter, regulatory definitions under the CWA are likely to define a proper class of activity, although the nature of the pollutant may also be relevant.⁴²¹

If we assume that we can aggregate all the individual activities in the class defined by the migratory bird rule, would the class of activities have a substantial effect on interstate commerce? In one sense the answer must be yes, as argued by the government. There is chain of causation from the destruction of habitat to the decrease in migratory fowl to the decrease in expenditures on hunting and birdwatching.⁴²² In Morrison, however, the Court explained that its decision in Lopez "rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated."⁴²³ And in Lopez, the Court quoted Justice Benjamin N. Cardozo's concurring opinion in A.L.A. Schechter Poultry Corp. v. United States⁴²⁴

There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours "is an elastic medium which transmits all tremors throughout its territory; the only question is of their size."⁴²⁵

Thus, not only do Lopez and Morrison effectively limit aggregation principles to economic activities, they also place a limit on the directness of the causation between the aggregated class of activities and the ultimate effect on interstate commerce. Although the Court did not decide the question in SWANCC, what it did decide suggests that the attenuation between the destruction of certain types of habitat for migratory fowl and the effects on the economy felt by reduced hunting and birdwatching may be too great. The destruction of all isolated, intrastate, non-navigable waters and wetlands in the United States would undoubtedly have some effect on migratory fowl populations, but it is not clear how great an effect or when it would be felt. The migratory fowl not dependent on those waters and wetlands would not be directly affected. Perhaps the fowl actually affected would find alternative habitat in otherwise protected waters and wetlands. Even if the population of migratory fowl diminished to some greater or lesser degree, it is not clear what effect that would have on money expended on birdwatching and hunting. Would birdwatchers really engage in less [31 ELR 10770] birdwatching because the migratory fowl was rarer? It is possible that they would actually spend more money and travel further to see the rarer species. Would hunters actually hunt migratory fowl less? Probably, because reduced numbers would probably result in greater restrictions on licenses or takes, reducing the actual amount of hunting, but maybe they would simply shift into hunting some other animal.

If the migratory bird rule results in a too attenuated chain of causation, what about other classes of activities occurring in isolated, non-navigable, intrastate waters that might affect interstate commerce in other ways? The Corps' and EPA's current regulations include three categories of such waters whose destruction or degradation would substantially affect interstate commerce as a class of activities: those which are used by interstate or foreign travelers for recreational or other purposes, or from which fish or shellfish are taken and sold in interstate or foreign commerce, or which are used for industrial purpose by industries in interstate commerce.⁴²⁶ Here the chain of causation would appear to be shorter and less attenuated than under the migratory bird rule. The destruction of the water directly destroys the very fish or shellfish which are sold in interstate commerce. The destruction of the water immediately and directly interferes with the production of industrial goods for interstate commerce. The destruction of waters used by interstate tourists will immediately result in their not using those waters. In each case, the required effect on interstate commerce operates as a jurisdictional element, and in each case the jurisdictional element involves a particular water with its own identified effect on interstate commerce. This distinguishes these cases from the migratory bird rule, whose jurisdictional element was not an effect on interstate commerce but an effect on the habitat of migratory birds, which then assumed an effect on interstate commerce. In these three cases, one can aggregate individual effects on interstate commerce into a substantial effect on interstate commerce, but with the migratory bird rule the aggregation is not of small effects on interstate commerce but rather the small effects on migratory bird habitat. All of these differences militate in favor of these three classes qualifying as within Congress' commerce power.

Nothing in the regulations of the Corps or EPA require that discharges into navigable or interstate waters have effects on commerce. Obviously the regulations presume that affecting the water quality of such waters naturally satisfies Commerce Clause requirements. Above it has been argued that this should not be the case. The absence of a jurisdictional element tied to interstate commerce with respect to these waters may not be fatal, although it is not helpful that the CWA, unlike SMCRA,⁴²⁷ the CAA,⁴²⁸ RCRA,⁴²⁹ and other environmental laws,⁴³⁰ does not contain legislative findings cataloguing the evils of water pollution. The legislative history of the CWA does provide evidence of the concerns that Congress wished to address, and these concerns are not unlike those described in the findings of the other statutes. In short, pollution of the water harms the health and welfare of the nation.⁴³¹ While protection of the public health and welfare are clearly appropriate justifications for federal action under the Spending Clause of the Constitution,⁴³² there are no Supreme Court cases generally recognizing the protection of the public health and welfare by itself as justifying regulation under the Commerce Clause. Moreover, both Lopez and Morrison suggest antipathy with such a view, for it would effectively grant general police powers to the federal government in derogation of the notion of limited powers in the federal government.⁴³³

The assumption in the environmental arena, certainly encouraged by the previous willingness of courts to engage in elaborate chains of causation to find effects on interstate commerce, has been that harm to the public health and welfare caused by pollution would affect interstate commerce by negatively affecting labor productivity, increasing the costs of health care, and increasing the costs attributable to decreases in the general welfare. This appeared to be the assumption shared by the Court in Virginia Surface Mining, when it said that it agreed with lower courts finding congressional authority to regulate air and water pollution, and other environmental hazards.⁴³⁴ Moreover, where the connections between the welfare and public health effect and interstate commerce are explicitly made in legislative findings, language in Virginia Surface Mining likewise supports the validity of attributing effects on interstate commerce from adverse health and welfare impacts.⁴³⁵

While there are no such findings in the CWA, the larger question is whether the opinions in Lopez and Morrison, with their criticism of attenuated chains of causation, even when supported by congressional findings, negate Virginia Surface Mining's language and the general assumptions that environmentally caused harms affect interstate commerce. Other than Justices Stevens and Rehnquist, the personnel of the Court has completely changed since Virginia Surface Mining, and then-Justice Rehnquist's opinion concurring in the judgment may serve as an indication that he has no stake in the majority opinion's language. In Morrison, the Court specifically rejected the notion that a law regulating local activity would satisfy the Commerce Clause simply because the aggregated effects of the activity would have "substantial effects on employment, production, transit, or consumption."⁴³⁶ Moreover, the concurring opinion of Justice Kennedy in Lopez, joined by Justice O'Connor, would further put in doubt the continued validity of Virginia Surface Mining's language and assumptions in light of its emphasis on the regulation of a unified, national market economy as the underlying rationale for aggregation and acceptance of chains of causation to satisfy the Commerce Clause inquiry.⁴³⁷ [31 ELR 10771] Regulation of even economic activity because of its environmental effects simply is not the regulation of the national market described by Justice Kennedy.

The implication is that it is not clear, in light of the analyses in Lopez and Morrison, that regulation of discharges of pollutants into navigable or interstate waters under the CWA would be constitutional absent a showing of a clear and direct cause of a substantial effect on interstate commerce. Actually, the analyses in Lopez and Morrison would suggest that the assumed basis for the constitutionality of the CWA may no longer be relied on.

The Future of the CWA

What, then, is the future of the CWA?

Whatever the constitutionality of the migratory bird rule, the Court has precluded its use as beyond the statute. Moreover, given the current and foreseeable future political arrangements, legislative amendment to specify coverage of isolated waters and wetlands because of their effect on migratory birds is beyond imaging.

The probable next issue is likely to be the status of the other categories of isolated, non-navigable, intrastate waters and wetlands in light of SWANCC. The analysis above suggests that constitutionally those categories, primarily because of their interstate commerce jurisdictional elements, stand on pretty firm constitutional ground, but that does not answer the question whether they are within the terms of the CWA. Reading the Court's opinion in SWANCC in any way other than very narrowly, one would probably conclude that the Court suggested that any non-navigable, isolated, intrastate water is not a "navigable water" within the meaning of the Act. Moreover, this appeared to be the conclusion of the Court without regard to the constitutional issue, which it only raised as a second reason for not applying Chevron deference to the government's interpretation of the Act. The first reason was that the Act clearly did not reach the non-navigable, isolated, intrastate waters in that case. That the Court's interpretation of the Act in that regard does great violence to the text, purpose, and history of the Act does not matter; the Court has spoken. The Court did leave enough leeway in its opinion that an agency could read it only to necessarily exclude waters that would only qualify because of the migratory bird rule. Whether the Bush Administration will use that leeway or read the Court's opinion to exclude all isolated, non-navigable, intrastate waters remains to be seen, but there seems little desire in the Bush Administration for pushing the envelope in favor of environmental concerns. Even if the agencies attempted to apply the Act to these remaining non-navigable, isolated, intrastate waters, it is not clear how meaningful that would be in terms of the number of waters involved. The Great Salt Lake presumably would qualify in one or more of the remaining categories of non-navigable, isolated, intrastate waters, but it is doubtful whether any of the prairie potholes, playa lakes, or vernal pools would qualify.

Because the Court reaffirmed Riverside Bayview Homes, there may be a tendency to try to find adjacency for what formerly would have been considered isolated wetlands.⁴³⁸ The current Corps regulations define "adjacent" as: "Bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are 'adjacent wetlands.'"⁴³⁹ This definition suggests physical proximity of the wetland to the navigable water, but the degree of proximity involved in "neighboring" is not clear. Those who want to extend adjacency as far as possible will stress the language in SWANCC stating that the 1977 Amendments to the CWA approved extension of the Act to wetlands "inseparably bound up" with navigable waters or as to which there was a "significant nexus" to navigable waters.⁴⁴⁰ And in Riverside Bayview Homes, the Court quoted from the original legislative history that "water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source."⁴⁴¹ For example, if "adjacent" wetlands could include those within a 100-year floodplain, it might be said there was a connection between those wetlands and the "adjacent" waters. Such claims, however, would be met by the statement in SWANCC that adjacent wetlands are those that "abut" navigable waters,⁴⁴² and this aids in the interpretation of the Corps' definition of "adjacent." If the Corps itself had formulated an interpretation of the limits of its regulation, it would likely be afforded very strong deference.⁴⁴³ Again, how the current Corps will interpret its jurisdiction is an open question.

The larger question raised by a stricter scrutiny of the Commerce Clause basis for environmental legislation, as suggested by SWANCC, is the extent to which the Court will reconsider, or consider for the first time, assumptions that have underlain environmental legislation and its judicial review for one-quarter century. SWANCC, while it raised questions about the Commerce Clause basis for the migratory bird rule, did not actually decide the constitutional question, which, if it had honestly interpreted the statute, it should have. This may reflect a reluctance on the part of one or more of the majority to undertake that consideration or reconsideration of past assumptions. Moreover, the constitutional question raised by the migratory bird rule does not necessarily raise the larger question of how the Commerce Clause relates to navigable waters when the purpose of the regulation is not navigation but water quality for the general health and welfare of the nation. As yet, there has been no express indication that the Court is willing to knock the pins from under most of the nation's environmental laws. It is only by inference from the stricter application of the Commerce Clause generally and the concerns voiced by the Court in SWANCC in particular that one might conclude that such a threat exists.

If the primary motivation for that stricter application is a fear of federal regulation supplanting state regulation with respect to "truly local" matters, the problem of pollution is a double-edged sword. Most pollution, whether air pollution, water pollution, or soil contamination, is in fact local with only local effects. To be sure, there is transboundary pollution, but it is only a fraction of the pollution that is regulated under the environmental laws, and often it is dealt with, not [31 ELR 10772] by the general provisions, but by specific provisions relating to such pollution.⁴⁴⁴ On the other hand, there is a general perception that pollution is no longer a local problem, but a national problem. Unlike the Gun-Free School Zones Act, or even the Violence Against Women Act, the environmental laws are hardly fads of the moment, the product of a transitory political concern. And although the Violence Against Women Act was accompanied by congressional findings that state laws had been inadequate to address the problem of gender-motivated violence, those findings may not be as compelling as the findings and shared experience of the inadequacy of state environmental laws before the national laws were first adopted in the 1970s. Moreover, to the extent that the pollution involves navigable or interstate waters, there is good history for these waters being imbued with a national interest. These factors could support a conclusion that pollution of these waters involves a "truly national" problem. If a majority of the Court shared this viewed, then application of the CWA to navigable and interstate waters could be deemed to address "truly national" problems, and there would be no need to construe the Commerce Clause strictly. The assumption that pollution of these waters would have adverse effects on health and welfare, which through a chain of causation one may assume have a substantial effect on interstate commerce, could be maintained. This seems a highly likely outcome, especially because it would only take one Justice to switch from the Lopez and Morrison majority to the dissent in order to reach this conclusion.

It remains possible, however, that a majority of the Court, especially if it were emboldened by one or more new conservative appointments, could attempt to return general environmental protection to the states as part of their inherent police power. There is much law and economics literature today pushing the advisability of such an action.⁴⁴⁵ If there is the will, then the law exists, as described above, to destroy the assumptions that undergird the current Commerce Clause justification for most of the CWA. And the same could be said for the other major environmental laws.

There is an old Chinese curse: "May you live in interesting times." Whether we have been cursed or not depends on your perspective, but in any case, welcome to interesting times.

1. 121 S. Ct. 675, 31 ELR 20382 (2001).

2. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

3. 514 U.S. 549 (1995).

4. 529 U.S. 598 (2000).

5. U.S. CONST. art. I, § 8, cl. 3.

6. See SWANCC, 121 S. Ct. at 678, 31 ELR at 20382.

7. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

8. Id. § 1344(a), ELR STAT. FWPCA § 404(a).

9. Id. § 1362(7), ELR STAT. FWPCA § 502(7).

10. 33 C.F.R. § 328.3(a)(3) (Corps regulation); 40 C.F.R. § 230.3(s)(3) (EPA regulation).

11. See 51 Fed. Reg. 41216, 41217 (Nov. 13, 1986). This interpretation, made in a preamble to the Corps regulation defining "waters of the United States," was apparently based upon a 1985 EPA General Counsel opinion, see 53 Fed. Reg. 20764, 20765 (June 6, 1988). The interpretation later came to be called the "migratory bird rule," although the interpretation itself was never made a regulation.

12. SWANCC, 121 S. Ct. at 678, 31 ELR at 20382.

13. Id. at 678-79, 31 ELR at 20382-83.

14. 5 U.S.C. § 706, available in ELR STAT. ADMIN. PROC.

15. See SWANCC, 121 S. Ct. at 679, 31 ELR at 20383.

16. See Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 191 F.3d 845, 30 ELR 20161 (7th Cir. 1999).

17. See Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 23 ELR 21139 (7th Cir. 1993).

18. See Leslie Salt Co. v. United States, 896 F.2d 354, 360, 20 ELR 20477, 20480 (9th Cir. 1990).

19. See United States v. Wilson, 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997).

20. 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a) (quoting SWANCC, 121 S. Ct. at 680, 31 ELR at 20383).

21. Id. § 1251(b), ELR STAT. FWPCA § 101(b) (quoting SWANCC, 121 S. Ct. at 680, 31 ELR at 20383).

22. SWANCC, 121 S. Ct. at 682, 31 ELR at 20384.

23. Id. at 680, 31 ELR at 20383 (quoting 33 C.F.R. § 209.120(d)(1) (1975)). The Corps changed these regulations in 1977 to abandon the limitation of its jurisdiction under the CWA to its jurisdiction under the Rivers and Harbors Act of 1899. See 33 C.F.R. § 323.2(a)(5) (1978).

24. SWANCC, 121 S. Ct. at 680, 31 ELR at 20383 (quoting 33 C.F.R. § 209.260(e)(1) (1975)). The Corps rescinded this regulation in 1977 when it recognized that the CWA's interests went well beyond transportation and commerce by water.

25. Id. (internal footnote omitted).

26. 474 U.S. 121, 16 ELR 20086 (1985).

27. SWANCC, 121 S. Ct. at 683, 31 ELR at 20384 (quoting Riverside Bayview Homes, 474 U.S. at 133, 16 ELR at 20089).

28. Id. at 682, 31 ELR at 20384.

29. Id. at 680, 31 ELR at 20383 (citing Riverside Bayview Homes, 474 U.S. at 135-39, 16 ELR at 20089-90).

30. Id. at 683, 31 ELR at 20384.

31. Id. at 682, 31 ELR at 20384.

32. See 33 U.S.C. § 1344(f)(1)(C), ELR STAT. FWPCA § 404(f)(1)(C).

33. Id. § 1344(g)(1), ELR STAT. FWPCA § 404(g)(1).

34. See SWANCC, 121 S. Ct. at 682 n.7, 31 ELR at 20384 n.7.

35. Id. at 682, 31 ELR at 20384.

36. 467 U.S. 837, 14 ELR 20507 (1984).

37. SWANCC, 121 S. Ct. at 683, 31 ELR at 20384.

38. Id.

39. Id.

40. See United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).

41. See Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 191 F.3d 845, 850, 30 ELR 20161, 20162 (7th Cir. 1999).

42. See SWANCC, 121 S. Ct. at 683, 31 ELR at 20384.

43. The original case for this proposition is Wickard v. Filburn, 317 U.S. 111, 127-28 (1942).

44. See SWANCC, 121 S. Ct. at 683, 31 ELR at 20384.

45. Id.

46. See id. at 684, 31 ELR at 20385. See also id. at 680, 31 ELR at 20383 ("We conclude that the 'Migratory Bird Rule' is not fairly supported by the CWA.").

47. See id. at 680, 31 ELR at 20383.

48. Id.

49. Id. at 682, 31 ELR at 20384.

50. Id. at 680, 31 ELR at 20383.

51. Id.

52. Id.

53. See Riverside Bayview Homes, 474 U.S. at 134, 16 ELR at 20089.

54. Id. at 134-35, 16 ELR at 20089 (quoting from 33 C.F.R. § 320.4(b)(2)(i)).

55. See id. at 131, 16 ELR at 20088.

56. See SWANCC, 121 S. Ct. at 682, 31 ELR at 20384.

57. Id.

58. Id. at 685, 31 ELR at 20385 (Stevens, J., dissenting).

59. Id. at 680, 31 ELR at 20383 (emphasis in original).

60. See Memorandum from Gary S. Guzy, General Counsel, EPA, and Robert M. Andersen, Chief Counsel, the Corps, Regarding Supreme Court Ruling Concerning CWA Jurisdiction Over Isolated Waters (Jan. 19, 2001).

61. Id. at 3.

62. Id. at 3-4.

63. Id. at 4 (quoting from 33 C.F.R. § 328.3(a)(3)).

64. 33 C.F.R. § 328.3(i)-(iii).

65. Memorandum from Gary S. Guzy and Robert M. Andersen, supra note 60, at 4. It has been reported in the press that later guidance by the Corps eliminates altogether from Corps jurisdiction any intrastate isolated waters. See 69 U.S. Law Week No. 35 (Legal News) 2561 (Mar. 30, 2001). This report has been disavowed by the Corps, however, which maintains that the January 19 memorandum is the only formal guidance. Telephone message from Lance Wood, U.S. Army Corps of Engineers, Mar. 30, 2001. Nevertheless, inasmuch as the January 19 guidance was one of the last gasps of the former administration, whose last minute environmental decisions have been subject to some modification by the present administration, it is not unreasonable to believe that a review of the January 19 guidance may be underway, and a broad rather than narrow reading of SWANCC would be a cheap and speedy means of deregulation helpful to many of the supporters of the current administration.

66. See Jon Kusler, The SWANCC Decision and State Regulation of Wetlands, Association of State Wetlands Managers (2001), available at www.aswm.org.

67. Id. at 7.

68. Id. at 8.

69. Id.

70. Id.

71. Id. Wisconsin estimated 79% of its wetlands would be removed from CWA protection; Nebraska estimated 40%; Indiana estimated 31% of its wetland acreage involving 74% of the number of wetlands in the state. Delaware estimates at least 33% of its freshwater wetlands would be removed from protection. Id. at 1. See also Jon Kusler, The SWANCC Decision and the States—Fill in the Gaps or Declare Open Season?, NAT'L WETLANDS NEWSL., Mar./Apr. 2001, at 9.

72. See SWANCC, 121 S. Ct. at 678, 31 ELR at 20382.

73. Id.

74. See Hardy Salt Co. v. Southern Pac. Transp. Co., 501 F.2d 1156 (10th Cir. 1974).

75. See 33 U.S.C. § 1342, ELR STAT. FWPCA § 402.

76. In the Resource Conservation and Recovery Act (RCRA), "industrial discharges which are point sources subject to permits under section 1342 of Title 33" are excepted from the definition of "solid waste," thereby excepting such discharges from the onerous treatment and disposal requirements of RCRA. See 42 U.S.C. § 6903(27), ELR STAT. RCRA § 1004(27).

77. See 33 U.S.C. § 1313, ELR STAT. FWPCA § 303.

78. See SWANCC, 121 S. Ct. at 684, 31 ELR at 20385.

79. See 33 U.S.C. § 1341(a), ELR STAT. FWPCA § 401(a).

80. See Kusler, supra note 66, at 11.

81. See 16 U.S.C. § 1456(c), ELR STAT. CZMA § 307(c).

82. See Kusler, supra note 66, at 9.

83. The report mentions Maine, New Hampshire, New Jersey, and Pennsylvania as having comprehensive programs. See id.

84. See id.

85. See id.

86. See id. at 10 (specifying Alaska, Georgia, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, and Texas).

87. Personal communications with the author.

88. 33 U.S.C. § 1362(7), ELR STAT. FWPCA § 502(7). The term "territorial seas" is also defined. See id. § 1362(8), ELR STAT. FWPCA § 502(8).

89. See 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

90. See, e.g., id. § 6901(a), ELR STAT. RCRA § 1001(a).

91. Id. § 6903(27), ELR STAT. RCRA § 1004(27).

92. See, e.g., 33 U.S.C. § 1362(5), ELR STAT. FWPCA § 502(5) (defining "person" to include states); id. § 1362(3), ELR STAT. FWPCA § 502(3) (defining "state" to include, among other things, American Samoa).

93. Id. § 1251(a), ELR STAT. FWPCA § 101(a).

94. The declaration of goals is itself inconsistent, for the first listed goal by which to achieve the stated objective is the elimination by 1985 of "the discharge of pollutants into the navigable waters." Id. § 1251(a)(1), ELR STAT. FWPCA § 101(a)(1). Because "navigable waters" is defined in the definition section as being the "waters of the United States," it is not clear that the use of the defined term is intended to restrict the prohibition of discharges only to waters that are navigable. Nevertheless, the use of the phrase "Nation's waters" in one sentence and "navigable waters" in the next sentence would suggest some distinction between the two.

95. The exceptions that prove the rule are found at id. §§ 1342(b)(6), ELR STAT. FWPCA § 402(b)(6) (requiring permits issued under § 402 to not impair navigation) and 1342(g), ELR STAT. FWPCA § 402(g) (requiring permits issued under § 402 be consistent with U.S. Coast Guard regulations for safe transportation by water). That is, these subsections reflect a concern that § 402's regulations might impair navigation, not that the purpose behind them have anything to do with protecting navigation.

96. See c. 425, 30 Stat. 1148 (1899), codified in areas of title 33 U.S.C. The primary provision used by the Corps to maintain navigability is § 10, 33 U.S.C. § 403.

97. 33 U.S.C. § 1251(a)(2), ELR STAT. FWPCA § 101(a)(2).

98. The CWA generally prohibits the discharge of any pollutant into waters of the United States without a permit. Pollutants extend from heat to toxics to biological matter and more. States are to determine the uses appropriate to the waters in their states and then to set water quality standards for those waters in order to achieve those uses.

99. 467 U.S. at 837, 14 ELR at 20507.

100. See id. at 843, 14 ELR at 20509.

101. SWANCC, 121 S. Ct. at 683, 31 ELR at 20384.

102. Id.

103. The only references to legislative history in the Court's opinion are those made by the government, which the Court says do not show that Congress intended the scope of the Act to reach beyond navigable waters.

104. Even Chevron counsels using traditional tools of statutory construction before determining that a statute is ambiguous. See Chevron, 467 U.S. at 843, 14 ELR at 20509. Justices Scalia and Thomas abjure the use of legislative history as fundamentally improper methods of statutory interpretation and construction, see, e.g., William Funk, Review Essay: Faith in Texts—Justice Scalia's Interpretation of Statutes and the Constitution: Apostasy for the Rest of Us?, 49 ADMIN. L. REV. 825 (1997), but their views have never commanded a majority of the Court.

105. See Riverside Bayview Homes, 474 U.S. at 132, 16 ELR at 20088.

106. Id. at 132, 16 ELR at 20089.

107. WILLIAM H. RODGERS JR., ENVIRONMENTAL LAW, 2d Ed. § 4.6.C (1994).

108. Pub. L. No. 92-500, 86 Stat. 816.

109. Id. § 1. The title, "Clean Water Act," did not arise until the 1977 amendments, see Pub. L. No. 95-217, § 1, 91 Stat. 1566 (1977).

110. 33 U.S.C. §§ 1155-1158, 1166-1168 (1970).

111. Id. §§ 1153, 1160-1165, 1171 (1970).

112. See, e.g., id. § 1153(c) (grants for water quality control for basins, and "basin" defined as including, but not limited to, "rivers and their tributaries, streams, coastal waters, sounds, estuaries, bays, lakes, and portions thereof, as well as the lands drained thereby"); id. § 1155(a) (grants for studies related to "the causes, control, and prevention of water pollution"); id. § 1155(h) (grants for demonstrations of new methods of preventing and controlling "natural or manmade pollution in lakes"); id. § 1155(i) (demonstrations "relative to the removal of oil from any waters"); id. § 1155(l) (studies related to "the presence of pesticides in the water" and "the persistency of pesticides in the water environment"); id. § 1155(m) (studies of pollution in estuaries and estuarine zones of the United States and its effect "on fish and wildlife, on sport and commercial fishing, on recreation, on water supply and water power, and on other beneficial uses," defining "estuary" as "all or part of the mouth of a navigable or interstate river or stream or other body of water" (emphasis added) connected to the sea); id. § 1156(a) (grants for demonstration projects on new or improved methods of "controlling the discharge into any waters" of sewage or storm drains); id. § 1156(b) (demonstration projects for prevention of "pollution of waters by industry"); id. § 1157(a) (grants to assist agencies in establishing measures "for the prevention and control of water pollution"); id. § 1158 (grants for sewerage treatment works that discharge wastes "into any waters").

113. Id. § 1160(a).

114. Id. § 1160(c).

115. Id. § 1161(b)(1).

116. Id. § 1162(a).

117. Id. § 1163(b).

118. H.R. 11896, 92d Cong. (1971); S. 2770, 92d Cong. (1971).

119. In the Senate the definition read:

The term "navigable waters" means the navigable waters of the United States, portions thereof, and the tributaries thereof, including the territorial seas and the Great Lakes.

S. 2770, 92d Cong. § 502(h) (1971).

In the House the definition read:

The term "navigable waters" means the navigable waters of the United States, including the territorial seas.

H.R. 11896, 92d Cong. § 502(8) (1971).

120. S. REP. NO. 92-414, 92d Cong. 77 (1971).

121. H.R. REP. NO. 92-911, 92d Cong. 131 (1971).

122. See S. REP. NO. 92-1236, 92d Cong. 144 (1971).

123. It is not clear what is intended here. First, "navigable waters of the United States" was not the term generally used in the body of the conference bill or either of its predecessors. While that term had been part of the definition of "navigable waters" in the original House and Senate bills, as well as the term generally used in the Rivers and Harbors Act of 1899, that term appeared only in two other provisions of the conference bill and its predecessors—the oil spill and marine sanitation device provisions, both involving Coast Guard responsibilities, rather than EPA or the Corps. The term generally used in the body of the original House and Senate bills was simply "navigable waters"; "navigable waters" was then defined to include "navigable waters of the United States," which was not further defined. The conference agreement dropped the "navigable" from the definitional phrase.

124. Again, it is not clear what is meant here. It is not surprising that the conference agreement does not define the term, "navigable waters of the United States," because it is not the operative term used in the bill, nor in the conference bill does the term appear in the definition. The conference agreement does, of course, define "navigable waters."

125. SENATE CONSIDERATION OF THE REPORT OF THE CONFERENCE COMMITTEE, Oct. 4, 1972, compiled in A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, Serial No. 93-1, 93d Cong. (1973), at 178.

126. HOUSE CONSIDERATION OF THE REPORT OF THE CONFERENCE COMMITTEE, Oct. 4, 1972, compiled in A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, Serial No. 93-1, 93d Cong. (1973), at 250-51.

127. Pub. L. No. 95-217, 91 Stat. 1566.

128. See 40 Fed. Reg. 31320 (July 25, 1975). This interpretation was reflected in interim final regulations which included within the regulatory definition of "waters of the United States" the tributaries of navigable waters, interstate waters and their tributaries, and non-navigable intrastate waters whose use or misuse could affect interstate commerce. In SWANCC, the Court did not recognize these regulations, skipping from the Corps' original 1974 regulations to the Corps' 1977 regulations. See SWANCC, 121 S. Ct. at 680-81, 31 ELR at 20383-84.

129. See Riverside Bayview Homes, 474 U.S. at 135-39, 16 ELR at 20089-90.

130. See id. at 134, 16 ELR at 20089.

131. See id. at 136, 16 ELR at 20090.

132. Id. at 138-39, 16 ELR at 20090.

133. SWANCC, 121 S. Ct. at 682, 31 ELR at 20384.

134. See id.

135. 38 Fed. Reg. 13528 (May 22, 1973).

136. Id. at 13529.

137. See, e.g., United States v. Holland, 373 F. Supp. 665, 4 ELR 20710 (M.D. Fla. 1974); United States v. Ashland Oil & Transp. Co., 364 F. Supp. 349, 4 ELR 20185 (W.D. Ky. 1973), aff'd on other grounds 504 F.2d 1317, 4 ELR 20784 (6th Cir. 1974).

138. 39 Fed. Reg. 12115, 12119 (Apr. 3, 1974).

139. Id. at 12115.

140. See id. "Navigable waters" were defined as: "those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce."

141. The Coast Guard, with responsibilities under certain provisions of the Act, had yet a third definition, one that reflected traditional navigability concepts but which also included "all streams, creeks, lakes, and ponds tributary [to navigable waters] upstream to their various sources." Commandant Instruction 7302.3, Change 1, Aug. 12, 1974, quoted in, Robert Haines, Wetlands' Reluctant Champion: The Corps Takes a Fresh Look at "Navigable Waters," 6 ENVTL. L. 217, 224 n.33 (1975) [hereinafter Reluctant Champion].

142. 39 Fed. Reg. at 12119.

143. See 40 Fed. Reg. 19766 (May 6, 1975) (describing the Corps' definition as including "all waters which are presently used, or were used in the past, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate commerce shoreward to their ordinary high water mark").

144. See Reluctant Champion, supra note 141, at 218-19.

145. 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).

146. Id.

147. See 40 Fed. Reg. at 31324-25.

148. Id. at 19766 (describing the Corps' proposed regulatory definition).

149. Id. Freshwater wetlands were themselves defined as wetlands "contiguous or adjacent to other navigable waters. . . ." Id.

150. Id. at 31320, 31325.

151. See id. at 31320.

152. See id. at 31321.

153. See id. at 31321, 31326.

154. See id. at 31321, 31325, 31326.

155. See id. at 31321, 31326.

156. See RODGERS, supra note 107, § 4.6.C.

157. See, e.g., H.R. 6935, 94th Cong. (1975); H.R. 7954, 94th Cong. (1975); S. 1878, 94th Cong. (1975).

158. See, e.g., S. 1796, 94th Cong. (1975).

159. See Hearings on the Implementation of Section 404 of the Water Pollution Control Act Before the Subcomm. on Water Resources of the House Comm. on Public Works & Transportation, 94th Cong. (1975); Hearings on Section 404 of the Federal Water Pollution Control Act Amendments Before the Senate Public Works Comm., 94th Cong. (1976).

160. See, e.g., H.R. 9560, 94th Cong. (1975).

161. H.R. REP. No. 94-1107, 94th Cong. 23 (1976).

162. Id. at 20.

163. See id. at 20-21.

164. See 122 CONG. REC. 16570 (1976).

165. See id. at 30457.

166. H.R. 3199, 95th Cong. § 16 (1977).

167. Id. § 16(b).

168. Id.

169. Id.

170. Id.

171. Id.

172. See H.R. REP. No. 95-139, 95th Cong. 46 (1977).

173. Id. at 2.

174. Id. at 20.

175. Id.

176. Compare H.R. REP. No. 94-1107, 94th Cong. 20-23 (1976) with H.R. REP. No. 95-139, 95th Cong. 20-23 (1977).

177. H.R. REP. No. 95-139, 95th Cong. 24 (1977).

178. See A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977, A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, Serial No. 95-14, Vol. 4, 95th Cong. at 1268 (remarks of Rep. Johnson), 1276 (remarks of Rep. Roberts), 1283-84 (remarks of Rep. Clausen), 1289 (remarks of Rep. McKinney), 1300 (remarks of Rep. Ashbrook—"Section 404 currently requires a [Corps] permit for the discharge of dredged or fill material into any water or wetland. Section 16 would restrict the scope of the corps permit program. It would limit the requirement to navigable waters and adjacent wetland."), 1317 (remarks of Rep. Lehman—"This section would cut back substantially on the comprehensive Federal coverage provided waters and wetlands under section 404 of the Federal Water Pollution Control Act."), and 1322 (remarks of Rep. Bauman) (1978).

179. Id. at 1343-44 (remarks of Rep. Edgar).

180. See id. at 1344-45 (remarks of Rep. Hammerschmidt).

181. See, e.g., id. at 1345 (remarks of Reps. Hammerschmidt and Breaux).

182. See, e.g., id. at 1343 (remarks of Rep. Edgar), 1395 (remarks of Rep. Sykes).

183. See SWANCC, 121 S. Ct. at 682, 31 ELR at 20384 ("Beyond Congress' desire to regulate wetlands adjacent to 'navigable waters,' respondents point us to no persuasive evidence that the House bill was proposed in response to the Corps' claim of jurisdiction over non-navigable, isolated, intrastate waters. . . .").

184. H.R. REP. No. 95-370, 95th Cong. 75 (1977) (emphasis added).

185. A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977, A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, Serial No. 95-14, Vol. 4, 95th Cong. 902 (1978).

186. Id. at 903 (emphasis added).

187. See id. at 906 ("we do not propose to change the law and permit any relaxation of our efforts to clamp down on the dumping of sewage or 'toxic spoil' or any other toxic discharges in even the smallest creek in this Nation").

188. See id. at 908 (remarks of Sen. Hart), 910-11 (remarks of Sen. Stafford), 916 (remarks of Sen. Chafee), 920-22 (remarks of Sen. Baker—"A fundamental element of the [CWA] is broad jurisdiction over water for pollution control purposes. . . . Comprehensive jurisdiction is necessary not only to protect the natural environment but also to avoid creating unfair competition [between dischargers into non-navigable waters and dischargers into navigable waters]"), 930 (remarks of Sen. Tower—"A court decision, coupled with an administrative decision, is causing us to be faced with a regulatory scheme which covers not just the rivers of the Nation but all surface waters and wetlands of the United States."), 933-36 (remarks of Sen. Dole—"The courts have interpreted the term ["navigable waters"] to encompass most waters in the United States and this has spread the scope of this Federal program far beyond traditional boundaries. . . . Whether nonnavigable water bodies wholly contained upon private property should be subject to oversight are all questions that must be resolved by Congress."), 940 (remarks of Sen. Hansen—"It is my belief that the adoption of this amendment would return the Federal Water Pollution Control Act to the state originally intended by Members of Congress when the matter came before us in 1972."), 942-43 (remarks of Sen. Bartlett), 944 (remarks of Sen. Talmadge—"While section 404 purports to exact permits for dredging and filling only in the navigable waters of the United States, nowhere has the term navigable been defined, except by a court, which has determined that section 404 applies to virtually all waters of the United States."), 945 (remarks of Sen. Muskie).

189. See id. at 947.

190. See especially id. at 908 (remarks of Sen. Hart), at 942-43 (remarks of Sen. Bartlett):

If the court decision to expand the jurisdiction of the corps to all bodies of water, both public and private, in excess of 5 acres is an accurate reflection of legislative intent, then it should stand. However, if the Congress should decide that it was not their intention to extend their jurisdiction, then it should immediately act to correct this error, by adopting this amendment.

191. See H.R. REP. No. 95-830, 95th Cong. 100-05 (1977).

192. A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977, A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, Serial No. 95-14, Vol. 3, 95th Cong. 470 (1978).

193. Id. at 523.

194. See, e.g., id. at 351 (remarks of Mr. Hammerschmidt—"I have in the past supported strongly the House position both in committee and on the floor which would restrict the jurisdiction of the [Corps] to traditionally navigable waters. I recognize that the House conferees faced insurmountable opposition to this position.").

195. 33 U.S.C. § 1344(g), ELR STAT. FWPCA § 404(g).

196. Id. § 1344(g)(1), ELR STAT. FWPCA § 404(g)(1).

197. SWANCC, 121 S. Ct. at 682, 31 ELR at 20384.

198. See id. at 680, 31 ELR at 20383.

199. See id. at 682, 31 ELR at 20384.

200. See 39 Fed. Reg. at 12119.

201. See 40 Fed. Reg. at 31323.

202. See H.R. 3199, 95th Cong. 15 (1976).

203. See H.R. REP. No. 95-139, 95th Cong. 20-23 (1977).

204. See id. at 18-19.

205. See H.R. 3199, as reported, 95th Cong. 42 (1977).

206. See S. REP. No. 95-370, 95th Cong. 10 (1977):

It is necessary and appropriate to make a distinction as to the kinds of activities that are to be regulated by the Federal Government and the kinds of activities which are to be subject to some measure of local control. The distinction does not necessarily need to be limited to the waters into which the discharge occurs so much as the kind of discharge which occurs, whether or not it is point source or nonpoint, whether or not it is major or minor, whether or not it is a conventional activity or a major change in the use of an area.

(Emphasis added.)

207. See S. 1952, 95th Cong. 65-68 (1977).

208. H.R. REP. No. 95-139, 95th Cong. 101 (1977).

209. See 40 Fed. Reg. at 31321.

210. See id. at 31326.

211. See id.

212. See id.

213. 33 U.S.C. § 1344(f), ELR STAT. FWPCA § 404(f).

214. See SWANCC, 121 S. Ct. at 691, 31 ELR at 20387. The government did not actually argue that § 404(f) was evidence of congressional ratification of the administrative and judicial interpretations of "navigable waters," saying instead that it was another provision limiting the scope of the Corps' jurisdiction, thereby also responding to concerns about federal overreaching under § 404. See Brief for the Federal Respondents at 5, 27, SWANCC (No. 99-1178).

215. 33 U.S.C. § 1344(f)(1)(C) & (D), ELR STAT. FWPCA § 1344(f)(1)(C) & (D).

216. See, e.g., H.R. REP. No. 95-139, 95th Cong. 23 (1977) ("Under the existing section 404 program given its broadest reach, all matters of agricultural and forestry activities could be subject to Federal permit regulation. . . . Section 16 accordingly specifically authorizes the issuance of general permits as well as exempting from regulation normal farming, silviculture, and ranching activities as well as the construction or maintenance of farm or stock ponds and irrigation ditches."). See also S. REP. No. 95-370, 95th Cong. 76 (1977).

217. SWANCC, 121 S. Ct. at 682 n.7, 31 ELR at 20384 n.7.

218. See, e.g., 33 U.S.C. § 1344(f)(1)(A), ELR STAT. FWPCA § 404(f)(1)(A) ("normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices").

219. See H.R. 3199, 95th Cong. 17-18 (1977).

220. SWANCC, 121 S. Ct. at 682, 31 ELR at 20384.

221. Id.

222. 461 U.S. 574 (1983).

223. SWANCC, 121 S. Ct. at 681 n.5, 31 ELR at 20384 n.5.

224. Bob Jones, 461 U.S. at 599.

225. See id. at 620-22 (Rehnquist, J., dissenting).

226. See id. at 577-78.

227. See id. at 579.

228. See id. at 600.

229. See Development of New Regulations by the Corps of Engineers Implementing Section 404 of the Federal Water Pollution Control Act: Concerning Permits for Disposal of Dredged and Fill Material, Subcomm. on Water Resources of the House Comm. on Public Works and Transportation, 94th Cong. (1975).

230. See Bob Jones, 461 U.S. at 600 (referring to "exhaustive hearings" "at various times").

231. See, e.g., Corps of Engineers Oversight Hearings—1975, Subcomm. on Water Resources of the Senate Comm. on Public Works, 94th Cong. (1975); Section 404 of the Federal Water Pollution Control Act Amendments of 1972: Hearings Before the Senate Comm. on Pub. Works, 94th Cong. (1976); To Amend and Extend Authorization for Federal Water Pollution Control Act, Hearings Before the Subcomm. on Water Resources of the House Comm. on Public Works and Transportation, 95th Cong. (1977).

232. See Bob Jones, 461 U.S. at 600 (referring to 13 bills over 12 years).

233. See, e.g., H.R. 9560, 94th Cong. (1976); H.R. 3199, 95th Cong. (1977).

234. See H.R. REP. NO. 94-1107, 94th Cong. (1976); 122 CONG. REC. 16570 (1976); H.R. REP. NO. 95-139, 95th Cong. (1977); A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977, A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, Serial No. 95-14, Vol. 4, 95th Cong. at 1363.

235. Bob Jones, 461 U.S. at 600-01.

236. Id. at 601.

237. See Bob Jones, 461 U.S. at 601.

238. Id.

239. Riverside Bayview Homes, 474 U.S. at 135-36, 16 ELR at 20089-90.

240. SWANCC, 121 S. Ct. at 682, 31 ELR at 20384 (quoting Riverside Bayview Homes, 474 U.S. at 136, 16 ELR at 20090).

241. Id.

242. Riverside Bayview Homes, 474 U.S. at 136, 16 ELR at 20090 (emphasis added).

243. See id. at 136-37, 16 ELR at 20090.

244. Id.

245. See, e.g., 42 Fed. Reg. 37122, 37144 (July 19,1977) (amending regulation defining "waters of the United States" to include "all other waters . . ., such as isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce"); 51 Fed. Reg. at 41216-17 (1986) (the preamble describing how harming the habitat of migratory birds could affect interstate commerce).

246. See Pub. L. No. 97-117, 95 Stat. 1623 (1981); Pub. L. No. 100-4, 101 Stat. 15 (1987); Pub. L. No. 100-653, 102 Stat. 3835 (1988); Pub. L. No. 101-596, 104 Stat. 3000 (1990); Pub. L. No. 103-431, 108 Stat. 4396 (1994).

247. See Pub. L. No. 100-4, § 313(d), 101 Stat. 15 (1987).

248. See, e.g., United States v. Byrd, 609 F.2d 1204, 9 ELR 20757 (7th Cir. 1979); United States v. Tull, 769 F.2d 182, 15 ELR 21061 (4th Cir. 1985), rev'd on other grounds, 481 U.S. 412, 17 ELR 20667 (1987); United States v. Pozsgai, 999 F.2d 719, 23 ELR 21012 (3d Cir. 1993); Utah v. Marsh, 740 F.2d 799, 14 ELR 20683 (10th Cir. 1984); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 8 ELR 20480 (9th Cir. 1978); Texas Mun. Power Agency v. Administrator, 836 F.2d 1482, 18 ELR 20538 (5th Cir. 1988).

249. See SWANCC, 121 S. Ct. at 683, 31 ELR at 20384.

250. Id.

251. 529 U.S. 598 (2000).

252. 514 U.S. 549 (1995).

253. Id. at 683-84.

254. Id. at 684.

255. 33 U.S.C. § 1251(b), ELR STAT. FWPCA § 101(b).

256. See, e.g., H.R. REP. NO. 92-911, 92d Cong. 131 (1972) ("The Committee fully intends that the term 'navigable waters' be given the broadest possible constitutional interpretation. . . ."); S. CONF. REP. NO. 92-1236, 92d Cong. 144 (1972) ("The conferees fully intend that the term 'navigable waters' be given the broadest possible constitutional interpretation. . . ."); S. REP. NO. 95-370, 95th Cong. 75 (1977) ("The 1972 Federal Water Pollution Control Act exercised comprehensive jurisdiction over the Nation's waters to control pollution to the fullest constitutional extent.").

257. 485 U.S. 568 (1988).

258. See id. at 577.

259. See H.R. REP. NO. 92-911, 92d Cong. 131 (1972); S. CONF. REP. NO. 92-1236, 92d Cong. 144 (1972). While, as discussed earlier, it is possible to read these reports at the time to refer only to applying the concept of navigability to its broadest possible constitutional extent, one should read them today as consistently interpreted by the lower courts and the agencies and as acquiesced in and ratified by Congress later—to apply to all waters of the United States. Moreover, to whatever waters these reports refer, it is clear that Congress is clearly expressing the intent to extend the jurisdictional reach to the broadest constitutional extent.

260. See DeBartolo, 485 U.S. at 575.

261. 2 Cranch 64, 118 (1804).

262. Id.

263. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 28-29 (1976) (discussing various canons of statutory construction).

264. Id. at 29.

265. SWANCC is not the first victim of the Court's discretionary and narrow interpretation of a statute to avoid a question under its new Commerce Clause jurisprudence. See Jones v. United States, 529 U.S. 848 (2000) (federal arson statute interpreted narrowly because otherwise "hardly a building in the land would fall outside the federal statute's domain").

266. SWANCC, 121 S. Ct.at 684, 31 ELR at 20385.

267. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 11 ELR 20569 (1981); Hodel v. Indiana, 452 U.S. 314, 11 ELR 20581 (1981).

268. See, e.g., Gibbs v. Babbitt, 214 F.3d 483, 30 ELR 20602 (4th Cir. 2000), cert. denied sub nom. Gibbs v. Norton, 121 S. Ct. 1081 (2001) (Endangered Species Act (ESA)); National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997), cert. denied, 524 U.S. 937 (1998) (ESA); Leslie Salt Co. v. United States, 55 F.3d 1388, 25 ELR 21046 (9th Cir. 1995), cert. denied sub nom. Cargill, Inc. v. United States, 516 U.S. 955, 26 ELR 20001 (1995) (CWA).

269. 9 Wheat. (22 U.S.) 1 (1824).

270. U.S. CONST. art. I, § 8, cl. 3.

271. Gibbons, 9 Wheat. (22 U.S.) at 189-90.

272. Id. at 190.

273. 77 U.S. (10 Wall.) 557 (1871).

274. See id. at 564.

275. See id.

276. Id.

277. The case of United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940), is not to the contrary. There, the Court upheld application of provisions of the Federal Power Act as applied to a dam to be built on a navigable water despite the fact that those provisions did not relate to navigation, but rather to power generation. The Court said:

In our view, it cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. . . . In truth the authority of the United States is the regulation of commerce on its waters. Navigability, in the sense just stated, is but a part of this whole. Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control. The respondent cannot, by seeking to use a navigable waterway for power generation alone, avoid the authority of the Government over the stream. That authority is as broad as the needs of commerce. Water power development from dams in navigable streams is from the public's standpoint a by-product of the general use of the rivers for commerce.

311 U.S. at 426. In other words, the Court was resting Congress' power to regulate the power generation of the dam not on the navigability of the water per se, but on Congress' other powers over commerce. After all, Appalachian Elec. Power was decided in the hey-day of broad Commerce Clause pronouncements. This interpretation was confirmed by the Court in Federal Power Comm'n v. Union Elec. Co., 381 U.S. 90 (1965), where the Court found the commission's authority over power-generation facilities extended to non-navigable waters as well.

In Appalachian Elec. Power, the Court also said that:

Even if there were no such relationship [to other Commerce Clause powers] the plenary power of Congress over navigable waters would empower it to deny the privilege of constructing an obstruction in those waters. It may likewise grant the privilege on terms. It is no objection to the terms and to the exertion of the power that "its exercise is attended by the same incidents which attend the exercise of the police power of the states." The Congressional authority under the commerce clause is complete unless limited by the Fifth Amendment.

311 U.S. at 427. While this language supports the idea that Congress may condition the obstruction of navigation on grounds unrelated to navigation, or perhaps even on grounds unrelated to any other positive authority Congress may possess under the Constitution, it does not support the idea that Congress can impose a regulation on an activity that does not obstruct navigable water solely because the activity relates to navigable waters. Cf., South Dakota v. Dole, 483 U.S. 203 (1987) (Rehnquist, C.J.) (Congress can condition grant of funds to states on a basis having no positive authority in the Constitution). See also Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964) (regulating commercial activities for reasons perhaps unrelated to commercial concerns).

278. See 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a).

279. See id. §§ 401 et seq.

280. See id. § 1317, ELR STAT. FWPCA § 307 (requiring the establishment of toxic pollutant effluent limitations and pretreatment standards for discharges into publicly owned treatment works); id. § 1362(6), ELR STAT. FWPCA § 502(6) (defining pollutant to include "heat").

281. 529 U.S. at 598.

282. Id. at 602 (citations omitted).

283. See Virginia Surface Mining, 452 U.S. at 275-83, 11 ELR at 20571-73; Indiana, 452 U.S. at 323-29, 11 ELR at 20583-85.

284. See, e.g., United States v. Byrd, 609 F.2d 1204, 1209-11, 9 ELR 20757, 20759-60 (7th Cir. 1979).

285. 452 U.S. 264, 11 ELR 20569 (1981).

286. 452 U.S. 314, 11 ELR 20581 (1981).

287. 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA §§ 101-908.

288. Because the different cases raised different challenges to the Act, the Court did not consolidate the cases but instead decided them together on the same day.

289. See 452 U.S. at 307, 11 ELR at 20579-80.

290. 30 U.S.C. § 1202(a), ELR STAT. ELR STAT. SMCRA § 102(a).

291. See 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

292. See 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

293. See 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

294. See Virginia Surface Mining, 452 U.S. at 270, 11 ELR at 20570.

295. See id. at 269, 11 ELR at 20570.

296. Id. at 275, 11 ELR at 20571.

297. Id. at 277, 11 ELR at 20572.

298. Id. (quoting 33 U.S.C. § 1201(c), ELR STAT. SMCRA § 101(c)).

299. Id.

300. See id. at 279-80, 11 ELR at 20572.

301. Id. at 281, 11 ELR at 20573 (quoting from United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)).

302. Wrightwood Dairy, 315 U.S. at 118-19.

303. Virginia Surface Mining, 452 U.S. at 281, 11 ELR at 20572. While surface mining could interfere with federal grant programs to conserve soil, water, and other natural resources, as noted in the congressional findings, it is difficult to see how the Commerce Clause would provide a basis for regulating any activity that might interfere with the grant program.

304. Id.

305. Id. at 282, 11 ELR at 20573.

306. 33 U.S.C. § 1201(c), ELR STAT. SMCRA § 101(c).

307. Several of the cases, however, do not contain any independent rationale. Bethlehem Steel Corp. v. Train, 544 F.2d 657, 663, 7 ELR 20019, 20022 (3d Cir. 1976) ("It would appear, however, that the federal government's power over interstate commerce is sufficiently broad to encompass this effort to confront the pressing problem of improving the quality of our nation's waters."); Sierra Club v. EPA, 540 F.2d 1114, 1139, 6 ELR 20669, 20682 (D.C. Cir. 1976), cert. denied, 430 U.S. 959 (1977) (merely citing to other cases); District of Columbia v. Train, 521 F.2d 971, 988, 6 ELR 20007, 20014 (D.C. Cir. 1975), vacated & remanded on other grounds sub nom. EPA v. Brown, 431 U.S. 99, 7 ELR 20375 (1977) ("None of the petitioners challenge the congressional determination that air pollution has a substantial effect on interstate commerce and therefore may be regulated by the federal government under the commerce clause.").

308. See United States v. Byrd, 609 F.2d 1204, 1210, 9 ELR 20757, 20760 (7th Cir. 1979).

309. United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1325, 4 ELR 20784, 20788 (3d Cir. 1974).

310. Pennsylvania v. EPA, 500 F.2d 246, 259, 5 ELR 20618, 20624 (3dCir. 1974).

311. South Terminal Corp. v. EPA, 504 F.2d 646, 677, 4 ELR 20768, 20781 (1st Cir. 1974).

312. United States v. Bishop Processing Co., 287 F. Supp. 624, 629-30 (D. Md. 1968), aff'd, 423 F.2d 469 (4th Cir.), cert. denied, 398 U.S. 904 (1970).

313. Subsequent lower court cases have not provided additional enlightenment as to why air and water pollution by itself is subject to Commerce Clause regulation. See United States v. Pozsgai, 999 F.2d 719, 733-34, 23 ELR 21012, 21019 (3d Cir. 1993) ("congressional regulation of water pollution is permissible under the Commerce Clause, and the Supreme Court has upheld this reasoning. [citing Virginia Surface Mining]"); United States v. Olin Corp., 107 F.3d 1506, 27 ELR 20778 (11th Cir. 1997) (interstate trafficking in hazardous materials for disposal causes commercial damages); Allied Local & Reg'l Mfrs. Caucus v. EPA, 215 F.3d 61, 81-82, 30 ELR 20723, 20730-31 (D.C. Cir. 2000) (CAA ozone provisions only apply to manufacturers, processors, wholesale distributers, or importers of consumer or commercial products for sale or distribution in interstate commerce in the United States and the emission of pollutants causing ozone has interstate effects increasing national health care costs and decreasing national agricultural production).

314. 30 U.S.C. § 1201(g), ELR STAT. SMCRA § 101(g).

315. Virginia Surface Mining, 452 U.S. at 282, 11 ELR at 20573.

316. 312 U.S. 100 (1941).

317. Virginia Surface Mining, 452 U.S. at 282, 11 ELR at 20573 (quoting Darby, 312 U.S. at 115).

318. See SWANCC, 121 S. Ct. at 695, 31 ELR at 20389 (Stevens, J., dissenting).

319. Virginia Surface Mining, 452 U.S. at 280, 11 ELR at 20572 (citing S. REP. NO. 95-128, 95th Cong. 49 (1977) and H.R. REP. NO. 95-218, 95th Cong. 58 (1977)).

320. 452 U.S. at 314, 11 ELR at 20581.

321. 30 U.S.C. § 1260(d)(1), ELR STAT. SMCRA § 510(d)(1).

322. Indiana v. Andrus, 501 F. Supp. 452, 10 ELR 20613 (D. Ind. 1980), rev'd sub nom. Hodel v. Indiana, 452 U.S. 314, 11 ELR 20581 (1981).

323. 452 U.S. at 324, 11 ELR at 20583.

324. Id. at 326, 11 ELR at 20584.

325. Id. at 329, 11 ELR at 20585.

326. See id.

327. See id. at 307, 11 ELR at 20580.

328. Id. at 311, 11 ELR at 20581.

329. Id.

330. Id.

331. See id.

332. 514 U.S. at 549.

333. See 18 U.S.C. § 922(q)(1)(A).

334. See Lopez, 514 U.S. at 563-64.

335. See id. at 559.

336. See id. at 557 n.2 (quoting 452 U.S. at 311, 11 ELR at 20581).

337. See id. at 562.

338. See Virginia Surface Mining, 452 U.S. at 276-77, 11 ELR at 20571-72.

339. Indiana, 452 U.S. at 323, 11 ELR at 20583.

340. Lopez, 514 U.S. at 563. In Lopez, however, there were no congressional findings.

341. Id. at 559-60.

342. Id. at 564.

343. Id.

344. Id. at 567.

345. See id. at 568 (Kennedy, J., concurring).

346. Id. at 580.

347. Id. at 583.

348. See id. at 584 (Thomas, J., dissenting).

349. Id.

350. 529 U.S. at 598.

351. Congress also relied upon § 5 of the Fourteenth Amendment in enacting the Violence Against Women Act, but the Court found the Act beyond Congress' powers under that section as well. See Morrison, 529 U.S. at 619.

352. 42 U.S.C. §§ 13931 et seq.

353. Id. § 13981.

354. See Morrison, 529 U.S. at 614.

355. Id. at 615 (quoting H.R. CONF. REP. NO. 103-711, 385 (1994)).

356. Id.

357. Id. at 613.

358. See William Funk, The Lopez Report, 25 ADMIN. & REG. L. NEWS 1 (1998).

359. United States v. Hartsell, 127 F.3d 343, 348 n.1, 28 ELR 20153, 20155 n.1 (4th Cir. 1997).

360. Id. at 349.

361. Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 191 F.3d 845, 30 ELR 20161 (7th Cir. 1999), rev'd on other grounds, 121 S. Ct. 675, 31 ELR 20382 (2001).

362. See Brief for Federal Respondents at 47, SWANCC (No. 99-1178).

363. 317 U.S. 111 (1942).

364. Lopez, 514 U.S. at 560. See also Morrison, 529 U.S. at 610 (quoting Lopez).

365. See supra note 275 and accompanying text.

366. See 33 U.S.C. §§ 1313, 1314, ELR STAT. FWPCA §§ 303, 304, under which EPA will not approve state water quality standards that do not at a minimum ensure that waters are swimmable and fishable.

367. Lopez, 514 U.S. at 567-68; Morrison, 529 U.S. at 617-18; (citing National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937)).

368. 381 U.S. 90 (1965).

369. 311 U.S. 377 (1940).

370. See also Sporhase v. Nebraska, 458 U.S. 941, 12 ELR 20749 (1982) (holding that underground water is an article in commerce subject to federal regulation and suggesting that surface waters are also an article of commerce).

371. See, e.g., United States v. Wilson, 133 F.3d 251, 28 ELR 20585 (4th Cir. 1997); United States v. Bishop Processing Co., 287 F. Supp. 624, 629 (D. Md. 1968), aff'd, 423 F.2d 469 (4th Cir.), cert. denied, 398 U.S. 904 (1970) ("movement of pollutants across state lines constitutes interstate commerce subject to the power granted to Congress by the Constitution to regulate such commerce"). The courts seem to reflect a similar assumption with respect to endangered species whose habitat crosses state boundaries, see, e.g., National Ass'n of Homebuilders v. Babbitt, 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997).

372. See 38 Fed. Reg. 13528, 13529 (May 22, 1973) (defining "navigable waters" to include "interstate waters"); 40 Fed. Reg. at 31324 (defining "navigable waters" to include "interstate waters").

373. See, e.g., 39 Fed. Reg. at 12119.

374. 451 U.S. 304, 11 ELR 20406 (1981).

375. Id. at 317, 11 ELR at 20409.

376. Virginia Surface Mining, 452 U.S. at 282, 11 ELR at 20573.

377. See SWANCC, 121 S. Ct. at 682, 31 ELR at 20384 ("nonnavigable, isolated, intrastate waters"; "wholly located within two Illinois counties").

378. 406 U.S. 91, 2 ELR 20201 (1972).

379. See id.

380. See U.S. CONST. art. III, § 2.

381. See id.

382. See, e.g., Missouri v. Illinois, 180 U.S. 208 (1901); New York v. New Jersey, 256 U.S. 296 (1921); New Jersey v. New York, 345 U.S. 369 (1953).

383. See, e.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. (59 U.S.) 421 (1856); Arizona v. California, 373 U.S. 546 (1963).

384. U.S. CONST. art. I, § 10, cl. 3.

385. See F. ZIMMERMAN & M. WENDELL, INTERSTATE COMPACTS SINCE 1925 (1951); F. ZIMMERMAN & M. WENDELL, THE LAW AND USE OF INTERSTATE COMPACTS (1961).

386. Brief for Federal Respondents at 40, SWANCC (No. 99-1178) (quoting Missouri v. Holland, 252 U.S. 416, 435 (1920)).

387. Id. In Holland, the "national" characteristic of migratory birds was used to justify the exercise of treaty power over their protection. See Holland, 252 U.S. at 416.

388. 451 U.S. at 304, 11 ELR at 20406.

389. See id. at 333, 334, 11 ELR at 20415-16 (Blackmun, J., dissenting).

390. Id. at 315 n.8, 11 ELR at 20409 n.8.

391. 373 U.S. 546 (1963).

392. Id. at 587.

393. City of Milwaukee, 451 U.S. at 312-13, 11 ELR at 20408.

394. 452 U.S. at 264, 11 ELR at 20569.

395. Id. at 281-82, 11 ELR at 20573.

396. 312 U.S. at 100.

397. Id. at 115.

398. See, e.g., MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1212 (1977); Richard B. Stewart, The Development of Administrative and Quasi-Constitutional Law in Judicial Review of Environmental Decisionmaking: Lessons From the Clean Air Act, 62 IOWA L. REV. 713, 747 (1977).

399. See, e.g., Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992); Richard L. Revesz, The Race to the Bottom and Environmental Regulation: A Response to Critics, 82 MINN. L. REV. 535 (1997); Jonathan Adler, The Ducks Stop Here? The Environmental Challenge to Federalism, 9 SUP. CT. ECON. REV. (forthcoming 2001).

400. See 30 U.S.C. § 1201(g), ELR STAT. SMCRA § 101(g).

401. See, e.g., H.R. REP. NO. 1146, 91st Cong. 3 (1970); H.R. REP. NO. 294, 95th Cong. 134 (1977).

402. Virginia Surface Mining, 452 U.S. at 281, 11 ELR at 20573.

403. "Appellees do not dispute that coal is a commodity that moves in interstate commerce. Here, Congress rationally determined that regulation of surface coal mining is necessary to protect interstate commerce from adverse effects that may result from that activity." Id.

404. See, e.g., Virginia Surface Mining (SMCRA applies to the surface mining of coal); United States v. Darby, 312 U.S. 100 (1941) (Fair Labor Standards Act applies to employers engaged in the production of goods for interstate commerce); Wickard v. Filburn, 317 U.S. 111 (1942) (Agricultural Adjustment Act applies to producers on a farm of a crop available for market); National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (applies to unfair labor practices affecting interstate commerce); Katzenbach v. McClung, 379 U.S. 294 (1964) (Civil Rights Act of 1964 applies to places of public accommodation, which are defined as establishments affecting interstate commerce, and specifically includes restaurants serving interstate travelers or a substantial portion of whose food traveled in interstate commerce).

405. See, e.g., 33 U.S.C. § 1316, ELR STAT. FWPCA § 306 (national standards of performance for listed categories of industrial sources); id. § 1342(p)(4)(A), ELR STAT. FWPCA § 402(p)(4)(A) (requiring the establishment of permit requirements for stormwater discharges associated with industrial activity).

406. See id. § 1311, ELR STAT. FWPCA § 301 (prohibiting discharge of any pollutant by any person except as authorized by Act); id. § 1342, ELR STAT. FWPCA § 402 (authorizing permits for discharges); id. § 1344, ELR STAT. FWPCA § 404 (authorizing permits for discharges of dredged or fill material).

407. See id. § 1362(14), ELR STAT. FWPCA § 502(14).

408. See, e.g., id. § 1314(b), ELR STAT. FWPCA § 304(b) (requiring promulgation of effluent guidelines which, among other things, must take into account "the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes. . . ."). Only one major category of polluter might arguably not be considered to be involved in economic activity—publicly owned treatment works, simply because they are governmental entities providing a public service rather than a commercial entity providing a service for a fee. In Lopez, for instance, the Court rejected a lower court's opinion that the Gun-Free School Zones Act was constitutional because it regulated activities in schools and schools were "business" affecting interstate commerce, see Lopez, 514 U.S. at 552. Rather, the Court said that the law had "nothing to do with 'commerce' or any sort of economic enterprise." Id. at 560. Moreover, the Court strongly implied that Congress could not under the Commerce Clause regulate the very public service being provided by schools, see id. at 565. Similarly, one could argue that publicly owned treatment works are not engaged in economic activity simply by providing a public service of waste treatment. Nevertheless, given the Court's frequent recognition of solid waste treatment and disposal as "commerce," see, e.g., Philadelphia v. New Jersey, 437 U.S. 617, 8 ELR 20540 (1978), it is likely that the Court would not exclude the treatment and disposal of liquid wastes from being considered economic activity.

409. See SWANCC, 121 S. Ct. at 683, 31 ELR at 20384.

410. Id. (quoting Brief for Federal Respondents at 43, SWANCC (No. 99-1178)).

411. 30 U.S.C. § 1291(13), (28)(A), ELR STAT. SMCRA § 701(13), (28)(A).

412. Whether a person whose discharge is not an incident of economic activity would have a defense against CWA jurisdiction is probably a moot question, especially if hiring someone to discharge dredged or fill material, for whatever purpose, would still qualify the discharge as incident to economic activity.

413. Virginia Surface Mining, 452 U.S. at 282, 11 ELR at 20573.

414. See id. at 277-80, 11 ELR at 20572-73.

415. Id. at 282, 11 ELR at 20573 ("we agree with the lower federal courts that have uniformly found the power conferred by the Commerce Clause broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one State"). All but one of the opinions cited by the Court which explain their decision specifically refer to effects on interstate commerce. See Byrd; Ashland Oil; Pennsylvania; South Terminal Corp. The one opinion that did not instead said that the "movement of pollutants across state lines constitutes interstate commerce." United States v. Bishop Processing Co., 287 F. Supp. 624, 629 (D. Md. 1968), aff'd, 423 F.2d 469 (4th Cir.), cert. denied, 398 U.S. 904 (1970). That court also said "the provisions of the Act relating to the abatement of interstate air pollution may properly be based on the interstate movement of the pollutants themselves, it is not necessary that such pollutants interfere with interstate commerce in order to sustain this exercise of the commerce power." Id. at 630.

416. See, e.g., United States v. Pozsgai, 999 F.2d 719, 733, 23 ELR 21012, 21019 (3d Cir. 1993).

417. See Virginia Surface Mining, 452 U.S. at 311-12, 11 ELR at 20581 (Rehnquist, J., dissenting).

418. See Lopez, 514 U.S. at 559.

419. See United States v. Olin Corp., 107 F.3d 1506, 1510, 27 ELR 20778, 20779 (11th Cir. 1997).

420. See id. (rejecting government's contention that the proper class of activities was the release of hazardous substances generally, instead recognizing on-site disposal of hazardous substances as the proper class).

421. For example, a discharger of only heat probably should not be in the same category as a discharger of a hazardous substance.

422. It is not clear, however, to what extent the government has established data disaggregating migratory bird habitat in the United States that would have been protected only by the migratory bird rule from other habitat, either outside the United States or within, that would be protected under other laws or under § 404 as navigable waters and their adjacent wetlands. For example, the government said that "as much as half the waterfowl of North America originate from the pothole region." Brief for Federal Respondents at 41 n.32, SWANCC (99-1178). It did not identify to what extent those potholes were protected solely by the migratory bird rule. Also, all the data on the economic impact of filing isolated waters and wetlands referred to the total dollars spent on birdwatching and hunting, not the dollars that would be affected by loss of the waters covered by the migratory bird rule. Id. at 47-48.

423. Morrison, 529 U.S. at 612.

424. 295 U.S. 495, 554 (1936).

425. Id. at 554 (quoting United States v. A.L.A. Schechter Poultry Corp., 76 F.2d 617, 624 (2d Cir. 1935) (L. Hand, J., concurring)).

426. 33 C.F.R. § 328.3(a)(3); 40 C.F.R. § 122.2.

427. See 30 U.S.C. § 1201(c), ELR STAT. SMCRA § 101(c).

428. See 42 U.S.C. § 7401(a), ELR STAT. CAA § 101(a).

429. See id. § 6901, ELR STAT. RCRA § 1001.

430. See, e.g., 15 U.S.C. § 2601(a), ELR STAT. TSCA § 2 (Toxic Substances Control Act).

431. Compare 42 U.S.C. § 7401(a)(2), ELR STAT. CAA § 101(a)(2) ("the growth in the amount and complexity of air pollution . . . has resulted in mounting dangers to the public health and welfare. . . ."); 30 U.S.C. § 1201(d), ELR STAT. SMCRA § 101(d) ("the expansion of coal mining to meet the Nation's energy needs makes even more urgent the establishment of appropriate standards to minimize damage to the environment and to productivity of soil and to protect the health and safety of the public"); 42 U.S.C. § 6901(b)(2), ELR STAT. RCRA § 1001(b)(2) ("disposal of solid waste and hazardous waste in or on the land without careful planning and management can present a danger to human health and the environment").

432. U.S. CONST. art. I, § 8, cl. 1.

433. See Morrison, 529 U.S. at 614.

434. See Virginia Surface Mining, 452 U.S. at 282, 11 ELR at 20573.

435. Id. at 277, 11 ELR at 20572.

436. Morrison, 529 U.S. at 614.

437. See Lopez, 514 U.S. at 568 (Kennedy, J., concurring).

438. The tendency may be more on the part of environmentalists and states than the Corps or EPA, if the current administration continues with its stingy environmentalism.

439. 33 C.F.R. § 328.3(c).

440. SWANCC, 121 S. Ct. at 680, 31 ELR at 20383.

441. Riverside Bayview Homes, 474 U.S. at 133, 16 ELR at 20089 (quoting S. REP. No. 92-414, 92d Cong. 77 (1972)).

442. SWANCC, 121 S. Ct. at 680, 31 ELR at 20383.

443. See Auer v. Robbins, 519 U.S. 452 (1997).

444. See, e.g., 33 U.S.C. § 1342(b)(5), ELR STAT. FWPCA § 402(b)(5).

445. See, e.g., the law review articles cited supra note 398.

31 ELR 10741 | Environmental Law Reporter | copyright © 2001 | All rights reserved