Supreme Court of the United States

“ To infer Congress’ intent to upend over a century of settled understanding and effect an unprecedented transfer of authority over land and water to the Federal Government, based on nothing more than a negative inference from a parenthetical in a subsection that preserves state authority, is counterintuitive to say the least. ”

“ As explained above, courts and Congress had long used the terms “navigable water,” “navigable water of the United States,” and “the waters of the United States” interchangeably to signify those waters to which the traditional channels-of-commerce authority extended. See supra, at 6. The terms “navigable waters” and “waters of the United States” shared a core requirement that the water be a “highway over which commerce is or may be carried,” with the term “of the United States” doing the independent work of requiring that such commerce “be carried on with other States or foreign countries.” ”

“ Today, many formerly fetid bodies of water are safe for the use and enjoyment of the people of this country.
There is, however, an unfortunate footnote to this success story: the outer boundaries of the Act’s geographical reach have been uncertain from the start. The Act applies to “the waters of the United States,” but what does that phrase mean? Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [or] playa lakes?” [2] How about ditches, swimming pools, and puddles? ”

“ The Federal Government therefore possesses no authority over navigable waters except that granted by the Constitution.
The Federal Government’s authority over certain navigable waters is granted and limited by the Commerce Clause, which grants Congress power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, §8, cl. 3. From the beginning, it was understood that “ [t] he power to regulate commerce, includes the power to regulate navigation,” but only “as connected with the commerce with foreign nations, and among the states.” ”

“ The majority next raises the specter of criminal penalties for “indeterminate” conduct. See ante, at 24–25. But there is no peculiar indeterminacy in saying—as regulators have said for nearly a half century—that a wetland is covered both when it touches a covered water and when it is separated by only a dike, berm, dune, or similar barrier. (That standard is in fact more definite than a host of criminal laws I could name.) Today’s pop-up clear-statement rule is explicable only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation. ”

“ Small wonder, then, that the Act—as written, rather than as read today—covers wetlands with that kind of connection. Congress chose just the word needed to meet the Act’s objective. A wetland is protected when it is “adjacent” to a covered water—not merely when it is “adjoining” or “contiguous” or “touching,” or (in the majority’s favorite made-up locution) has a “continuous surface connection.” See, e.g., ante, at 27.
Today’s majority, though, believes Congress went too far. In the majority’s view, the Act imposes unjustifiably “crushing consequences” for violations of its terms. ”

“ Those are just two of many examples of how the Court’s overly narrow view of the Clean Water Act will have concrete impact.
As those examples reveal, there is a good reason why Congress covered not only adjoining wetlands but also adjacent wetlands. Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters. Natural barriers such as berms and dunes do not block all water flow and are in fact evidence of a regular connection between a water and a wetland. ”

“ It would be foolish to go ahead and build since the jurisdictional determination might form evidence of culpability in a prosecution or civil action. The jurisdictional determination could be challenged in court, but only after the delay and expense required to exhaust the administrative appeals process. See 33 CFR §331.7 (d) . And once in court, the landowner would face an uphill battle under the deferential standards of review that the agencies enjoy. See 5 U. S. C. §706. Another alternative would be simply to acquiesce and seek a permit from the Corps. ”

“ First, the water had to be capable of being used as a highway for interstate or foreign commerce. Second, Congress could regulate such waters only for purposes of their navigability—by, for example, regulating obstructions hindering navigable capacity. By the time of the CWA’s enactment, the New Deal era arguably had relaxed the second limitation; Congress could regulate navigable waters for a wider range of purposes. ”

“ Even if the Corps is willing to provide a jurisdictional determination, a property owner may find it necessary to retain an expensive expert consultant who is capable of putting together a presentation that stands a chance of persuading the Corps. [12] And even then, a landowner’s chances of success are low, as the EPA admits that the Corps finds jurisdiction approximately 75% of the time. ”

“ Thus, any activity that “interferes with, obstructs, or prevents such commerce and navigation, though done on land, may be punished by congress.” Coombs, 12 Pet., at 78. But, activities that merely “affect” water-based commerce, such as those regulated by “ [i] nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State,” are not within Congress’ channels-of-commerce authority. ”

“ What are landowners to do if they want to build on their property? The EPA recommends asking the Corps for a jurisdictional determination, which is a written decision on whether a particular site contains covered waters. ”

“ Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.
In addition, it would be odd indeed if Congress had tucked an important expansion to the reach of the CWA into convoluted language in a relatively obscure provision concerning state permitting programs. We have often remarked that Congress does not “hide elephants in mouseholes” by “alter [ing] the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” ”

“ The agencies responded to Riverside Bayview by expanding their interpretations even further. Most notably, they issued the “migratory bird rule,” which extended jurisdiction to any waters or wetlands that “are or would be used as [a] habitat” by migratory birds or endangered species. See 53 Fed. Reg. 20765 (1988) ; 51 Fed. Reg. 41217 (1986) . As the Corps would later admit, “nearly all waters were jurisdictional under the migratory bird rule.” ”