Anchoring the Clean Water Act

Recent Supreme Court rulings have called into question federal Clean Water Act coverage for certain wetlands and streams. Legislation introduced in the House of Representatives would amend the Act to restate and clarify Congress’s intent to regulate the waters of the United States to the fullest extent of its legislative power. This Environmental Law Institute white paper identifies which constitutional powers Congress can rely on to protect the Nation’s waters and explains in straightforward language what the Supreme Court has said about these powers.

The Supreme Court rulings in question (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 2001, and Rapanos v. United States, 2006) were limited to interpreting Congressional intent in 1972, when Congress used the terms “navigable waters” and “waters of the United States” to assert federal jurisdiction under the Act. The Court has never decided the underlying constitutional question: what is the scope of Congress’s constitutional authority to protect the Nation’s waters? This ELI legal analysis is intended to inform the debate.

Download Anchoring the Clean Water Act: Congress's Constitutional Sources of Power to Protect the Nation's Waters (PDF - 16pp.)

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