Clean Water Act

Two badly divided Supreme Court rulings on the scope of the Clean Water Act1 have left

lower courts, legal scholars, federal agencies, environmental activists, and developers to grapple

with difficult practical questions: Are so-called "isolated" or remote wetlands still covered by the

Act? What about headwater streams and similar tributaries, and other waters that are vitally

important, but may be miles away from larger lakes, rivers, and estuaries, or run intermittently or

seasonally? When do non-navigable--but ecologically critical--streams and wetlands fall under

federal jurisdiction?

As a legal matter, determining which water bodies are protected by the Clean Water Act

depends on two things: first, Congress's intent in passing the Act, as determined from the Act's

language, structure, and legislative history; and second, the meaning and scope of the

constitutional provisions that give Congress power to legislate to protect the nation's waters. The

key Supreme Court decisions on Clean Water Act jurisdiction have been concerned with only the

first of these two considerations: attempting to divine the intent of Congress when it passed the

modern Clean Water Act in 1972 and amended it in 1977 and 1987.

But what if Congress were to resolve this question of "intent" once and for all by again

amending the Clean Water Act, this time to make clear that Congress intends to protect the

nation's waters to the fullest extent of its legislative power under the Constitution? Legislation

that would accomplish such clarification has now been introduced in both chambers of the 110th

Congress.2 This Issue Brief identifies the constitutional powers Congress can rely on to protect

waters nationwide, and discusses what the Supreme Court has said about these powers. The

following analysis is intended to inform the debate on the fundamental--but often

misunderstood--area of law where protection of the nation's waters meets the Constitution.

II. Overview of Congress's Constitutional Sources of Power To Protect the Nation's Waters

The Constitution makes no express grant of power to regulate the nation's waters.

However, the Constitution does vest in Congress powers that for many years Congress has

successfully used to address issues that are national in scope--including management of

waterways, flood control, and water pollution. These powers, together with Congress's

additional authority to employ all "necessary and proper" means of carrying them out, form the

constitutional basis on which Congress has legislated, and can continue to legislate, a

comprehensive program of protection for all the nation's waters, including its many streams and

wetlands.

* The authors are Senior Attorneys at the Environmental Law Institute.

1 33 USC §§ 1251-1387

2 H.R. 2421 & S. 1870 (Clean Water Restoration Act of 2007).

2

Traditionally, Congress's most important power for purposes of environmental protection

has been the power to regulate interstate commerce, granted exclusively to Congress by the

Commerce Clause of Article I, Section 8, of the Constitution. This broad power--which includes

Congress's authority to regulate activities, even