On Feb. 21, 2006, the U.S. Supreme Court heard arguments over the reach and constitutionality of the Clean Water Act. Signed into law by Richard Nixon in 1972, the Clean Water Act made it illegal to discharge pollutants into “navigable waters” without a permit.
In subsequent years, federal regulators interpreted that prohibition to apply to small streams, low-lying wetlands and dry creek beds. The cases before the Supreme Court are challenging the extension of the act’s authority to these areas.
“The Clean Water Act represents a view of environmental policy that tramples property rights, centralizes regulatory authority and crowds out private efforts to safeguard local environmental quality,” said Competitive Enterprise Institute Counsel for Special Projects Hans Bader. “A critical re-evaluation of the reach of federal environmental regulation, and of the Clean Water Act in particular, is long overdue.”
The government relies on a far-reaching “hydrological connection” theory. If a parcel of land contains water that is “hydrologically connected” to open waterways, it is deemed to be in “navigable waters.” The government’s theory thus gives it power over much of the continental United States.
“The government’s use of attenuated links between parcels of land and distant waterways to regulate such land as ‘wetlands’ violates the Constitution” said Bader, citing the Supreme Court’s 2000 decision limiting federal powers in United States v. Morrison, a case he helped litigate. “The government is defending its expansive definition of wetlands based on the Interstate Commerce Clause, saying wetlands affect interstate commerce. But the Morrison decision held that an activity’s ‘attenuated effect upon interstate commerce is not enough’ to justify federal regulation, even if it has a major but indirect ‘aggregate effect’ on the economy. Instead, the Supreme Court held there must be a close, ‘substantial relationship’ between what the government is regulating and interstate commerce. There isn’t any ‘substantial relationship’ between land next to a drainage ditch and interstate commerce, yet that is the land the government wrongly sought to use the Clean Water Act to control in today’s case.”
The Competitive Enterprise Institute (CEI) is a non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government.