SWANCC‘s Clear Statement: A Delimitation of Congress’s Commerce Clause Authority to Regulate Water Pollution

Perhaps the most controversial aspect of federal water pollution law is wetland regulation. Wetlands are typically marshy or swampy areas with hydrologic soils and vegetation. Their ecological value is widely recognized, but wetlands often stand in the way of lucrative commercial development projects. Thus, the battle over the validity of federal wetland regulation is a classic fight between environmentalists and industry. The wetlands controversy is also paradigmatic of the perpetual struggle to define the constitutional limits to federal regulation. The country’s main water pollution control law, the Clean Water Act (CWA), purports to regulate all “navigable waters,” which it defines as “waters of the United States.” Although wetlands are not themselves navigable, section 404 of the CW A requires obtaining a federal permit from the Army Corps of Engineers (“the Corps”) before discharging “dredged or fill material” into wetlands. The permit requirement applies to individual property owners and commercial developers alike, and is therefore a significant impediment to development projects that involve wetlands. In addition, critics have always maintained that Congress’s regulatory power does not extend to isolated wetlands because they are not navigable. The Federal Government’s constitutional authority to regulate water pollution arises from the Interstate Commerce Clause. Historically, Congress’s power over waters was tied to the national need to regulate navigation as an aspect of commerce. This authority has come to be known as the “navigable waters doctrine” and was expanded by Congress early on to serve environmental goals. In fact, Congress’s authority under the doctrine to regulate pollution of navigable-in-fact waters – waters that are actually navigable, as distinguished from “navigable waters,” which has become a term of art – has been well-settled for more than a century. However, the extent to which the federal government can constitutionally regulate waters that are not navigable-in-fact has never been clear, and is controversial to this day.