As you know, the Constitution creates a government of limited power – Congress can only enact legislation in areas that are specifically set out under the Constitution. Congress is expressly prohibited from enacting legislation in other areas, leaving this authority to the States per the Tenth Amendment – “The powers not delegated to the United States by the Constitution…are reserved to the States respectively, or to the people”.

Every law enacted by Congress must be based on one of the powers enumerated in the Constitution. The Framers of the Constitution gave Congress broad power to regulate immigration, national security and economic activity between the states, and left most other power with the States.

However, Section Eight of Article I states that “the Congress shall have the power to regulate Commerce…among the several states”. This is the Commerce Clause and it is the most powerful provision in the Constitution providing Congress the authority to enact legislation in a host of areas – including environmental protection. A key Supreme Court case regarding the Commerce Clause was in 1942 when the Supreme Court upheld legislation that allowed USDA to set quotas on local wheat growing. The Court noted that while crops regulated may never actually enter into interstate commerce, such local activity, coupled with similar activity in other states as an aggregate has a direct impact on interstate commerce. Since then using the “aggregate effects test” or “substantial effects test,” Congress has passed broad ranging environmental legislation such as the Clean Water Act, which we are here to discuss today.

The Clean Water Act is one of our most successful environmental statutes, aimed at restoring and maintaining the chemical, physical and biological integrity of the nation's waters. Originally enacted in 1948, the Act was amended numerous times until it was reorganized and expanded in 1972.

Among the provisions included in the 1972 Act was Section 404, which in combination with Section 301(a) requires persons wishing to discharge dredged or fill material into “navigable waters” to obtain a permit from the U.S. Army Corps of Engineers.

At the same time, Congress defined “navigable waters” under the broad term of “the waters of the United States,” and indicated in the conference report to the 1972 Act that this new phrase was intended to be given “the broadest possible constitutional interpretation”.

The new definition for “navigable waters” was retained during the 1977 Amendments to the Clean Water Act, after Congress debated and ultimately rejected amendments that would have narrowed the Corps’ jurisdiction under the Section 404 Program.

The last time the Supreme Court ruled on a major Clean Water Act case was in 2001 with Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC). In this case, the Supreme Court limited the authority of federal agencies to extend Clean Water Act protections to non-navigable, intrastate, “isolated” wetlands based solely on their use by migratory birds.

The Rapanos and Carabell cases and the Supreme Court’s ruling have once again raised significant questions in relation to the comprehensive nature of the Clean Water Act –– In crafting the Clean Water Act in 1972, and amending the law in 1977, what geographic scope did Congress intend the Clean Water Act to encompass? Did the U.S. Army Corps of Engineers act reasonably in interpreting the term “waters of the United States” as it appears in the Act to encompass a broad range of wetland areas? Further, is the application of the Clean Water Act to the wetlands at issue in these cases a permissible exercise of Congressional authority under the Commerce Clause of the Constitution?

Additionally, the Clean Water Act has broad authority over not only the wetlands permitting program, but also programs such as the Section 301 program governing discharges of pollutants; requirements to obtain permits prior to discharge under Section 402; water quality standards under Section 303; and oil spill liability, prevention, and control measures under Section 311, among others. All of these programs utilize the one definition of “navigable waters” that applies to the entire Clean Water Act.

On June 19th, the Supreme Court held, by a vote of 5-4 that the judgments of the Sixth Circuit in the joint cases of Rapanos and Carabell be vacated, and remanded both cases to the lower court for further consideration. We are now here to analyze the Supreme Court’s ruling in these cases.

The Rapanos case arose as a civil enforcement action filed by the United States in 2000, seeking penalties for the filling of Michigan wetlands without a Clean Water Act Section 404 permit. The question posed by this case is the Army Corps of Engineers’ jurisdiction over wetlands that are adjacent to non-navigable tributaries of traditionally “navigable” waters.

The Carabell petitioners were denied a Corps permit to fill in the wetlands on their property near Lake St. Clair in order to construct 130 condominium units. The question posed by this case is the federal government’s jurisdiction over wetlands that are not hydrologically connected to any “waters of the United States”.

The Court presented us with a total of five opinions -- Justice Scalia issued a plurality opinion along with Chief Justice Roberts, Justice Thomas, and Justice Alito. Chief Justice Roberts wrote a separate opinion concurring with the plurality. Justice Kennedy wrote an opinion concurring in the judgment of the plurality. Justice Stevens, with whom Justices Souter, Ginsberg, and Breyer joined, wrote a dissenting opinion. Justice Breyer also issued his own separate dissenting opinion.

In the Scalia plurality decision, four justices supported a more constrictive interpretation of the term “the waters of the United States”. Through this interpretation, the plurality would place limits on waters flowing intermittently or ephemerally; exempt non-navigable, intrastate, “isolated” waters addressed in SWANCC from coverage under the Act; and require that wetlands covered by the Act be only those with a continuous surface connection to traditionally “navigable waters”.

The Stevens and Breyer dissenting opinions state that the Corps’ existing approach regarding wetlands regulation is the correct interpretation of the Clean Water Act. It is Justice Kennedy’s opinion that one must look at most closely. While Kennedy agreed with the plurality to remand the cases, Kennedy rejects the plurality’s arguments regarding the need for a continuous surface connection. Instead, Justice Kennedy sets up a “significant nexus” test – also raised in SWANCC – that requires regulators to determine on a case-by-case basis if wetlands have a significant nexus with navigable waters.

We have invited two panels of witnesses here today to assist the Subcommittee and members of the full Committee in interpreting the Rapanos/Carabell decision. Our two panels include witnesses representing the federal government, as well as two legal experts and two witnesses representing the regulated and environmental communities. As Congress continues to assess the Rapanos/ Carabell ruling and determine whether legislative remedies are necessary to clarify the intent of the Clean Water Act, we look forward to your testimony and your interpretation of the joint cases. We also hope you will be able to shed some light on the situation.