Danny Martinez
Board Member of Paragon Foundation

In April 2, 2009, S. 787 the Clean Water Restoration Act was introduced to the 111th Congress, which was a bill to amend the “Federal Water Pollution Control Act” to clarify the jurisdiction of the United States over waters of the United States. Section 1 Short Title says “This Act may be cited as the Clean Water Restoration Act.” The purpose of the Act was to (1) to reaffirm the original intent of Congress in enacting the Federal Water Pollution control Act Amendments of 1972 (Public Law 92-500; 86 Stat. 816) to restore and maintain the chemical, physical, and biological integrity of the waters of the United States; and (2) to clarify define the waters of the United States that are subject to the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.)as those features that were treated as such pursuant to the final rule (including the preamble that final rule) published at 53 Fed. Reg. 20764 (June6, 1988) and 51 Fed Reg 41206 (November 13, 1986) and other applicable rules and interpretations in effect on January, 8, 2001.” [emphasis added]

This act has caused a lot of reaction from the states in regards to their sovereignty and their jurisdiction over waters within the boundaries of their respective states. This has not been diminished in any manner as Sect. 3 Findings (5) “Congress Supports the policy in effect under section 101(g) of the Federal Water Pollution Control Act (33 U.S.C. 1251(g)), which states that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act. ….” [emphasis added]

To fully understand the impact of changing the wording from navigable waters to waters of the United States one must understand the clear meaning of what “United States” means.

In 1945 the Supreme Court in Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945) defined the term “United States” as having three distinct meanings ; “The term "United States" may be used in any one of several senses. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations. It may designate the territory over which the sovereignty to the United States [672] extends, or it may be the collective name of the states which are united by and under the Constitution.”

The first definition of “United States” makes reference under International Law such as France, England, Spain etc.

The Second definition of “United States” makes reference to territory over which the sovereignty of the United States extends such as the 10 square miles of Washington D.C., Guam, American Virgin Islands, Puerto Rico etc. This would include any insular possession within the boundaries of the states that has been ceded to the United States in compliance with Article 1 Section 8 Clause 17 of the Constitution “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings:

The Third definition of “United States” makes reference to the collective name of the sovereign 50 states united under international law. We are not one Central Government as we are a union of states united under the Constitution with the states granting specific and restricted enumerated powers to the agent for the states united “United States”. This is made clear in Article IV Section 3 Admission of States to the Union and Article 1 Sections 1-8 of the Constitution of the United States of America. http://caselaw.lp.findlaw.com/data/constitution/article04/16.html ; http://caselaw.lp.findlaw.com/data/constitution/article01/

The United States Code at 28 U.S.C. 1603 defines “United States” as follows: (c) The “United States” includes all territory and waters, continental or insular, subject to the jurisdiction of the United States”. This confirms the provisions of Article I Section 8 Clause 17.

In the event the jurisdictional issue is not quite understood Article I Section 8 Clause 18 grants jurisdiction only over those enumerated powers listed in Article I Section 8 such as power to coin money; power to regulate commerce between the states such as the 6 navigable waters (commerce) such as the Mississippi River, the Hudson River etc. Article I Section 8 Clause 18 is as follows “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”.

The tenth Amendment of the Constitution makes this very clear that unless the Constitution has granted the “United States” authority to do something it is without it “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. [emphasis added]

Danny Martinez
Board Member of Paragon Foundation