Supreme Court Reviews Water Quality Regulations

Washington, D.C., February 21, 2006—The U.S. Supreme Court today hears arguments over the reach and constitutionality of the Clean Water Act, setting the stage for a potentially historic verdict on property rights and federalism.

“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.”

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 even dry creek beds which clearly do not meet the definition of “navigable.” The cases before the Supreme Court today are challenging the extension of the Act’s authority to these areas, which are often many miles from actual open waterways.

The Government relies on an incredibly 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,” no matter how tenuous the connection is.  Of course, all water flows downhill, and thus is “hydrologically connected” to navigable waters.  The Government’s theory thus gives it boundless power over much of the continental United States, including millions of acres of mostly dry land that it redefines as wetlands.

“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 which 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.”