Court rulings in Clean Water Act cases largely gave federal agencies broad regulatory authority until an unrelated 1995 Supreme Court decision on the possession of firearms in school zones, according to Congress’ research arm.
In United States v. Lopez, the high court struck down a federal statute for the first time in more than 50 years on the grounds that it exceeded the powers given to Congress by the Commerce Clause.
"Lopez set the backdrop" for future rulings limiting federal Clean Water Act jurisdiction, the Congressional Research Service said in a report released Monday.
Ever since, CRS said, the scope of the Clean Water Act has been a battleground for farmers, industry, environmentalists and regulators.
At issue is the phrase "navigable waters of the United States," which Congress added in 1972 Clean Water Act amendments to determine the reach of permitting requirements (Greenwire, Dec. 24, 2015).
Legal and political brawls continue to be fought over how that phrase should be applied under the Commerce Clause, which gives Congress the power to regulate commerce with foreign nations and between states.
Courts at first were more likely to give agencies broad authority to regulate waters, CRS wrote.
"During the first two decades after the passage of the Clean Water Act," the report says, "courts generally interpreted the act as having a wide jurisdictional reach."
For example, in 1975, the U.S. District Court for the District of Columbia struck down the Army Corps of Engineers’ definition of "waters of the United States," which limited federal jurisdiction to waters used for transportation.
In its ruling on Natural Resources Defense Council v. Callaway, the court ordered the corps to draw up a broader definition.
The corps’ response sparked a public outcry and congressional hearings over the scope of the Clean Water Act.
At the heart of the controversy was an Army Corps press release saying Callaway might require "the rancher who wants to enlarge his stock pond, or the farmer who wants to deepen an irrigation ditch or plow a field, or the mountaineer who wants to protect his land against stream erosion" to obtain federal permits.
In response, U.S. EPA — which was already operating under a broader definition of "waters of the United States" — slammed the corps for causing confusion by overstating the impact of the case.
"Most of this confusion and misunderstanding is directly attributable to the seriously inaccurate and misleading press release issued by the Corps at the time the regulations were published," then-EPA Administrator Russell Train told the Army Corps’ chief of engineers, Lt. Gen. William Gribble Jr., in a 1975 letter.
The corps eventually ended up adopting EPA’s broader definition while adding an expansive category that included isolated lakes and wetlands, intermittent streams, prairie potholes and other waters.
In 1985, the Supreme Court gave deference to the corps’ expanded definition of waters of the United States in United States v. Riverside Bayview Homes Inc.. The high court found that the corps could regulate wetlands adjacent to open bodies of water.
But 10 years after that came Lopez, and the Supreme Court ruled that authority given to Congress under the Commerce Clause, "though broad, is not unlimited."
"This modern Commerce Clause jurisprudence," CRS says, "has informed federal courts’ approach to interpreting which ‘waters’ are subject to the Clean Water Act."
Post-Lopez confusion
Lopez‘s impact can be seen in three significant Clean Water Act court cases.
Two years after the decision, the 4th U.S. Circuit Court of Appeals trimmed the corps’ definition in United States v. Wilson, striking language saying waters of the United States included those where degradation or destruction could affect commerce.
In the 2001 Solid Waste Agency of Northern Cook County v. Army Corps of Engineers decision, the Supreme Court ruled, 5-4, against the corps’ position that it could require permits for an abandoned sand-and-gravel pit that had become a habitat for migratory birds. The justices ruled that the corps could not rely on the Migratory Bird Treaty Act as the basis for Clean Water Act jurisdiction.
And in a famously muddled 2006 decision, the Supreme Court ruled 4-1-4 in Rapanos v. United States about whether wetlands that are hydrologically isolated from waters of the United States could be regulated. Justice Anthony Kennedy wrote a stand-alone opinion that streams and wetlands must have a "significant nexus" to navigable waters to be protected under law.
While noting the trend in Clean Water Act litigation, CRS didn’t try to predict the fate of EPA’s Clean Water Rule — the corps and EPA’s attempt to work through the post-Rapanos muddle to define which waterways and wetlands receive automatic protection.
Litigation over the rule is pending in several district and circuit courts. Last October, the 6th U.S. Circuit Court of Appeals stayed its enforcement.
