"Fixing" the Clean Water Act:

Last week's panel on "Enforcing the Clean Water Act" in which I participated largely focused on H.R. 2421, "The Clean Water Restoration Act of 2007," a bill introduced by Representative Oberstar "to amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States." This legislation is a response to the Supreme Court's decisions in SWANCC v. U.S. Army Corps of Engineers and Rapanos v. United States that limited federal regulatory jurisdiction under the Clean Water Act.

The key provisions of the bill -- indeed, the bill's only meaningful substantive provisions --eliminates all references to navigability by substituting "waters of the United States" for "navigable waters of the United States" throughout the bill, and then define "waters of the United States" as follows:

The term `waters of the United States' means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.'
One of the stated purposes of this reform is to "clearly define the waters of the United States" subject to federal jurisdiction. Yet this definition will do nothing of the kind. The bill purports to assert jurisdiction to the "fullest extent of the legislative authority of Congress under the Constitution," but provides no indication of what this entails. Unless one assumes that federal regulatory jurisdiction is unlimited -- an assumption the Supreme Court rejected in both of the opinions this bill seeks to address -- the new definition of "waters" will still require courts to determine whether given waters and wetlands are within the scope of Congress' Commerce Clause authority. As a consequence, this definition will produce just as much regulatory uncertainty, and litigation, as the status quo.

This does not mean the revised definition would have no effect, however. By removing any reference to the navigability of waters, the legislation is clearly intended to expand federal regulatory authority, and could well provide the basis for asserting federal jurisdiction over some non-navigable waters. Yet without additional rule-making by the U.S. Army Corps of Engineers and Environmental Protection Agency to clarify the bases upon which jurisdiction can be asserted, the bill still amounts to the legislative equivalent of the statement 'we wish to regulate everything we can regulate." This may well eliminate navigability as a constraint, but it doesn't provide any rational basis upon which agencies or courts could determine when federal regulatory jurisdiction is, or is not, justified. Many federal criminal statutes avoid this problem with the inclusion of a jurisdictional element, explicitly limiting federal jurisdiction to those instances in which the regulated activities "substantially affect commerce" or otherwise implicate federal interests.

The proposed definition of "waters of the United States" could well be the source of some regulatory mischief, however, as it asserts regulatory authority over "all impoundments" of water that are subject to federal regulatory authority. A plain reading of this language would suggest that this would expand federal Clean Water Act jurisdiction to cover many artificial waters and structures that impound water that were previously unregulated. Whether intended or not, this could be quite significant. Consider that, as a general matter, it is easier to assert federal jurisdiction under the /Commerce Clause over human-erected structures than "natural waterbodies, as the former are (again, as a general matter) more likely to be related to economic activities than the latter. To be sure, the regulation of many "impoundments," such as those used in various manufacturing processes and closed water systems, to swimming pools and fountains, may have little to do with the Clean Water Act's stated purpose of restoring and maintaining "the chemical, physical, and biological integrity of the waters of the United States," but such statements of purpose are ultimately less important than a statute's operative provisions. While I doubt the Army Corps and EPA would seek to avail themselves of this newfound authority immediately, one can safely assume that this new authority over "all impoundments" would eventually be the source of regulatory mischief.

In my view, the ultimate purpose of the bill -- reversing the SWANCC and Rapanos -- is misguided. Reasserting federal regulatory jurisdiction to its constitutional limit (if not farther) serves neither the aim of regulatory certainty nor the cause of more effective environmental conservation. Stretching federal resources over an ever-greater environmental expanse does not improve regulatory efficacy. A wiser approach, in my view, is to target federal regulatory efforts where federal regulation can do the most good. Specifically, federal regulation of waters and wetlands should be focused on those areas in which the federal government has a particular federal interest (as is the case with navigable interstate waterways) or where federal involvement is necessary to prevent states from exporting environmental harms on their neighbors. Such an approach is not only more consonant with the underlying constitutional values that motivated the Supreme Court's decisions in SWANCC and Rapanos, it is also likely to be more effective -- and will leave ample room for non-regulatory efforts and non-federal actors to complement federal regulation. Not only will the Oberstar legislation do nothing to accomplish this goal. It would actually move federal policy in the opposite direction.

Hans Bader (mail):
"Fixed" to what end? If you already have 99 percent of what you want under a law, do you really need to "fix" it to get 100 percent, when getting that last 1 percent raises serious constitutional problems?

What can't the government regulate under current law that it wants to regulate?

In practice, Justice Kennedy's opinion in Rapanos allows the government so much regulatory power that it is only slightly narrower than the opinion of the four liberal justices.

Expanding the law's reach by converting the liberal justices' opinion into law would only incrementally expand the government's power, which is already vast, while risking a finding by the Court that the slightly expanded law has pushed the envelope too far given the already vast reach of the statute even prior to the expansion.
9.10.2007 6:14pm
I understand that you're opposed to the decision on policy grounds. But it seems a bit disingenuous to argue that the bill fails on its own terms to clarify the scope of federal jurisdiction because courts will impose their own convoluted limitations that are not intended by Congress. Also, I don't understand how jurisdictional elements "avoid this problem" -- they still require courts to determine the limits of federal authority. Or are you suggesting that in the absence of a jurisdictional element the CWA will be struck down in its entirety?
9.10.2007 6:30pm
CDU (mail):
"Also, I don't understand how jurisdictional elements "avoid this problem" -- they still require courts to determine the limits of federal authority."

If the statute had a jurisdictional element that limited it to matters that were clearly within federal purview, rather than pushing the bounds of what it could possibly regulate under the constitution, then there would be little room for debate on the constitutional limits of the statutes jurisdiction. Of course, this just means that the debate would be over the statutory jurisdiction, rather than over the constitutional limits on federal power. This could be preferable from a legal point of view if congress defined the statutory jurisdiction clearly.

The "navigable waters" part of the current CWA is fairly well within the bounds of federal regulation ("navigable" being associated with the potential for commerce), but before Rapanos it wasn't exactly clear just how far the term "navigable waters" could be stretched. Of course, "significant nexus" isn't much clearer, so we're probably in for still more litigation on the subject whether or not Congressman Oberstar's bill passes.
9.10.2007 6:51pm
The General:
they forgot to include "puddles" in the definition.
9.10.2007 6:57pm
So, are the gutters and downspouts on my house "impoundments"? A pretty serious question, since my house would fall down without them...
9.11.2007 12:05am