The CWRA, on the other hand, would assert federal regulatory jurisdiction over "all" intrastate waters and activities affecting such waters, potentially reaching many private lands and activities never before regulated by the CWA and displacing state and local authority.
Yet the CWRA would do just that, as if the word "navigable" had never been in the original statute.
As written, the CWRA would extend federal regulatory jurisdiction to all "intrastate waters" and "all impoundments" of such waters, no matter the size.
Indeed, Congress has never passed legislation that would explicitly authorize such far-reaching regulatory authority over local waters and private lands as would the CWRA.
Yet this legal confusion did not begin with those decisions, and will not end with enactment of the CWRA.
The CWRA will not end confusion and litigation over the scope of federal regulatory authority.
Eliminating a significant nexus requirement, as the CWRA appears to do, does not eliminate the constitutional limits on federal power, but it does raise the prospect that some applications of the act will reach, if not exceed, such limits.
Congress should encourage such efforts, yet this is not what the CWRA would do.
Perhaps the best indicator of public support for the CWRA is to look to the past, to the last major amendment to the CWA, passed in 1987.
With Obama in the White House and Democrats in control of Congress, expectations are high that the CWRA will become law.