Commerce Clause Issues Raised in Clean Water Act Certs

The Supreme Court has agreed to review two cases under the Clean Water Act that raise both statutory and Commerce Clause issues. The constitutional issue in both cases, which were consolidated, is whether application of the Clean Water Act to the wetlands at issue was within Congress’s authority under the Commerce Clause.

U.S. v. Rapanos, 376 F.3d 629 (6^th Cir. 2004), cert. granted 2005 WL 2493858, 73 USLW 3466 (U.S. Oct 11, 2005) (NO. 04-1034) and Carabell v. U.S. Army Corps of Engineers, 391 F.3d 70 (6^th Cir. 2004), cert. granted 2005 WL 2493859, 73 USLW 3632 (U.S. Oct 11, 2005) (NO. 04-1384).

In the Carabell case, the plaintiff was denied a permit to fill a wetland in northern Michigan for construction of a condominium complex. In the Rapanos case, the plaintiff was convicted of a criminal violation of the Clean Water Act for filling wetlands on his property without a permit.  In both cases, the wetlands have only an intermittent, indirect runoff connection to navigable waters far from their property.

The cases may be decided on statutory grounds – whether the government’s actions were within the scope of the Clean Water Act.  On the constitutional issue, the cases turn in part on whether the wetlands have enough of a hydrological connection to navigable waters of the United States to bring them within the government’s broad authority to regulate “channels” of interstate commerce.  That issue might not have broad importance outside of environmental cases.

However, the Court might reach the United States’ alternative argument that the Clean Water Act applications here were also within the government’s power to regulate conduct that has a “substantial effect” on interstate commerce.  The government contends that the government had a rational basis for concluding that discharges of pollutants (including fill) into wetlands that are adjacent to nonnavigable tributaries of traditional navigable waters have a substantial effect, in the aggregate, on the downstream navigable waters.  The Court’s endorsement or rejection of that argument – either the “rational basis” review or the broad reading of “substantial effect” – could have much broader implications for federal authority under the Commerce Clause.