Swamp Stomp
Volume 14, Issue 13
What happened to the Commerce Clause?
I know in last week’s newsletter I promised to go over how to use a level for wetland and stream work. However last Tuesday the EPA and the Corps released a prepublication of the new Waters of the US rules. This past Friday the Corps circulated an internal memo to the field offices about what was going on. So, I thought we might deviate from our level work and jump into these new rules for a bit. Never fear, the official Swamp School Guide to Using a Laser Level for Wetland and Steam Work will be published in next week’s newsletter.
At 370 pages long the new rules weigh in at 2.4 pounds and just shy of an inch thick if you print them double sided. It cost me about $25 just to print them. I did get a little fancy and had them bound, so add another 3 dollars for that.
The stated intention of the new rules is to clearly define what exactly is a waters of the United States. This seems simple enough. Not really. This has been that focus of a number of Supreme Court cases over the last couple of decades. The most infamous is the Rapanos and Carabell case of 2006. This brought us new concepts like significant nexus and traditional navigable waterways. Everyone has been confused ever since. So it is not necessary a bad thing to try to clear this up.
However, there is the issue of what makes the federal government think it has the right to tell someone what they can or cannot do on their land. If that land is a waters of the US pay attention to the “of the US” part. That means it is within the federal governments purview or shall we say jurisdiction to tell you what you can or cannot do on your land.
How did that happen you ask? It is a little thing called the Commerce Clause found in Article 1, Section 8, Clause 3 of the Constitution of the United States. This clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: The Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.
The significance of the Commerce Clause is described in the Supreme Court’s opinion in Gonzales v. Raich, 545 U.S. 1 (2005):
“The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”
The interpretation of the Commerce Clause has helped define the balance of power between the federal government and the states and the balance of power between the two elected branches of the Federal government and the Judiciary. As such, it has a direct impact on the lives of American citizens.
The Commerce Clause has been used to identify what waters are subject to regulation by the federal government. In the United States v. Rands, 389 U.S. 121 (1967), the 1967 Rands decision states:
“This power to regulate navigation confers upon the United States a dominant servitude, FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.”
In 1948 the federal Water Pollution Control Acts was enacted to exercise some federal oversight of state and location actions regarding waters. However, it lacked any authority enforce or permit these activities. It became more of an encouragement rather than an enforcement program. This is why we now have a Clean Water Act.
The existing definition of waters of the US is limited to waters that directly or in some case indirectly affects interstate or foreign commerce. This “commerce connection” is required because the Clean Water Act is limited to those types of waters. Specifically, it is limited to traditionally navigable waters as discussed in the Rapanos case.
However, in looking at some of these older laws it would appear that there may be authority to expand beyond those waters thought to be traditionally navigable. At least the EPA and the Corps think so. Perhaps that is why the legal authority is the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq. It is generally accepted that the Clean Water Act is a body of amendments to the 1948 law. However, one interpretation of the 1948 law gives the federal government the authority to encourage clean water programs. However, what remains unclear is if this encouragement was codified in the passage of the 1972 amendments known as the Clean Water Act. If this was the case, they why did the Supreme Court limit EPA and the Corps to waters subject to interstate or foreign commerce. I can’t image that they missed this.