<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:92375.wais]
S. Hrg. 108-352
SWANCC SUPREME COURT DECISION:
IMPACT ON WETLANDS REGULATIONS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON FISHERIES,
WILDLIFE, AND WATER
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
TO RECEIVE TESTIMONY ON FEDERAL REGULATION OF WETLANDS FOLLOWING THE
SUPREME COURT'S DECISION IN THE CASE OF ``SOLID WASTE AGENCY OF
NORTHERN COOK COUNTY V. THE U.S. ARMY CORPS OF ENGINEERS'' (SWANCC)
__________
JUNE 10, 2003
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred eighth congress
first session
JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio HARRY REID, Nevada
MICHAEL D. CRAPO, Idaho BOB GRAHAM, Florida
LINCOLN CHAFEE, Rhode Island JOSEPH I. LIEBERMAN, Connecticut
JOHN CORNYN, Texas BARBARA BOXER, California
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
CRAIG THOMAS, Wyoming THOMAS R. CARPER, Delaware
WAYNE ALLARD, Colorado HILLARY RODHAM CLINTON, New York
Andrew Wheeler, Majority Staff Director
Ken Connolly, Minority Staff Director
------
Subcommittee on Fisheries, Wildlife, and Water
MICHAEL D. CRAPO, Idaho, Chairman
JOHN W. WARNER, Virginia BOB GRAHAM, Florida
LISA MURKOWSKI, Alaska MAX BAUCUS, Montana
CRAIG THOMAS, Wyoming RON WYDEN, Oregon
WAYNE ALLARD, Colorado HILLARY RODHAM CLINTON, New York
(ii)
C O N T E N T S
----------
Page
JUNE 10, 2003
OPENING STATEMENTS
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New
York........................................................... 33
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 1
Graham, Hon. Bob, U.S. Senator from the State of Florida......... 117
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 10
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 3
Comments by State Governments on SWANCC...................... 6
Letters:
Lake Champlain........................................... 24
ASIWPCA.................................................. 4
Lieberman, Hon. Joseph I., U.S. Senator from the State of
Connecticut.................................................... 115
Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska...... 31
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 11
WITNESSES
Bogert, L. Michael, counsel, Governor of Idaho Dirk Kempthorne... 104
Letter, to EPA, from Governor Kempthorne..................... 131
Prepared statement........................................... 129
Responses to additional questions from Senator Jeffords...... 135
Text of Idaho House Bill 284................................138-146
Dunlop, Hon. George, Deputy Assistant Secretary for Civil Works,
U.S. Department of the Army.................................... 17
Feingold, Hon. Russell D., U.S Senator from the State of
Wisconsin...................................................... 11
Prepared statement........................................... 118
Hamann, Richard, associate in law, University of Florida......... 107
Prepared statement........................................... 146
Responses to additional questions from Senator Graham........ 149
Mehan, Hon. G. Tracy, Assistant Administrator for Water, U.S.
Environmental Protection Agency................................ 15
Prepared statement........................................... 120
Pierce, Robert J., president, Wetlands Science Applications, Inc. 110
Prepared statement........................................... 153
Report, Technical Principles Related to Establishing Limits
of Jurisdiction for Section 404 of the Clean Water Act....196-271
Responses to additional questions from Senator Jeffords...... 192
Sansonetti, Hon. Thomas L., Assistant Attorney General for
Environment and Natural Resources, U.S. Department of Justice.. 19
Prepared statement........................................... 124
Responses to additional questions from:
Senator Inhofe........................................... 127
Senator Jeffords......................................... 128
Yaich, Scott, director of conservation programs, Ducks Unlimited. 109
Prepared statement........................................... 271
Responses to additional questions from Senator Jeffords...... 275
ADDITIONAL MATERIAL
Letter, Rulemaking on definition of ``clean water,'' Governor
Dirk Kempthorne................................................ 131
Reports:
EPA Compliance Issues, Office of the Inspector General....... 37-99
National Wildlife Federation and Natural Resources Defense
Council...................................................283-302
Statements:
American Farm Bureau Federation.............................. 279
Wildlife Management Institute................................ 302
Wisconsin Department of Natural Resources.................... 281
SWANCC SUPREME COURT DECISION:
IMPACT ON WETLANDS REGULATIONS
----------
TUESDAY, JUNE 10, 2003
U.S. Senate,
Subcommittee on Fisheries, Wildlife, and Water,
Committee on Environment and Public Works,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 o'clock
a.m. in room 406, Senate Dirksen Building, Hon. Michael D.
Crapo [chairman of the subcommittee] presiding.
Present: Senators Crapo, Murkowski, Thomas, Inhofe [ex
officio] and Jeffords [ex officio].
OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM
THE STATE OF IDAHO
Senator Crapo. The hearing will come to order.
Good morning and welcome to the hearing of the Fisheries,
Wildlife and Water Subcommittee. Today, we will be receiving
testimony on the wetlands regulation and issues raised by the
Supreme Court's SWANCC decision.
In January, 2001, the Supreme Court overturned an Agency
interpretation that took broad jurisdictional views of section
404 of the Clean Water Act. In ruling that the Corps and the
EPA no longer had jurisdiction over isolated intrastate waters,
the Court fundamentally changed section 404 wetlands regulatory
programs.
Developers and others in the regulated community often
complain about the Corps' red tape, but the same bureau seems
to be about as efficient at protecting wetlands as it is at
expediting permits. Some of the things that the environmental
community has said about the section 404 wetlands provisions
are anything less than laudatory.
In the Clean Water Act, Congress expressed a clear choice
to recognize, preserve and protect the primary responsibilities
of the States to plan the development and use of land and water
resources. As a former State water law attorney, I could not
agree more strongly. While I believe that the broad
jurisdictional view stated is inappropriate and found unlawful
in SWANCC, I am going to temporarily set aside those concerns
today, and I would like to focus my comments on the Corps of
Engineers and their implementation of the section 404 program.
The Corps' regulatory budget is about $150 million a year.
Compare this with the Agency's total budget of $4.6 billion.
There are approximately 1,450 full-time employees in the
regulatory program. There are more than 100 million acres of
wetlands in the lower 48 States. If Corps employees did nothing
but monitor those wetlands, they would each supervise 69,000
acres apiece.
One could argue that the budget and resources that Congress
gives the Corps' regulatory program is a reliable indicator of
congressional intent, particularly with regard to the scope of
the program. Given the structure, level and funding of
personnel resources provided for the 404 program, it is not
particularly surprising that the 404 program has not been more
effective in conserving our Nation's wetlands. In addition, the
Corps was not created nor has it evolved as a regulatory
agency. Fundamentally, the Corps of Engineers is just that--an
engineering agency. Given its history, organization, and
available resources, it is unlikely that the Corps will ever be
capable of regulating, effectively or otherwise, all of the
waters of the United States that could affect commerce.
The benchmark discussion about the Corps' jurisdiction
should not begin with the sweeping jurisdiction bestowed upon
itself with the Migratory Bird Rule, but it needs to begin with
the clear and unambiguous criteria that are commensurate with
both the Federal resources and the Federal interest to ensure
that the Corps' resources are targeted toward those waters
which are the most important to the Federal Government.
It is also important to point out that the Clean Water Act
is not the only Federal law standing between wetlands and
destruction. There are numerous other Federal programs related
to wetlands. For example, SWANCC did not affect the Federal
Government's commitment to wetlands protection through the Food
Security Act Swampbuster requirements, the Conservation Reserve
Program, the Wetlands Reserve Program, the Partners in Wildlife
Program, the Coastal Wetlands Restoration Program, the Five
Star Restoration Program, the National Estuary Program, and
programs under the Migratory Bird Conservation Act.
Clear rules on Federal jurisdiction under Section 404 are
also important to ensure that these other Federal programs can
properly prioritize their resources. For example, the
Agriculture Department's Wetlands Reserve Program, reauthorized
by the farm bill, is expected to enroll 250,000 acres this
year. In order to ensure that programs such as the Wetlands
Reserve Program maximize environmental benefits, they should be
designed to be complementary with the 404 program.
Until other Federal agencies understand the scope of
jurisdiction under the 404 program, it is going to be difficult
if not impossible to effectively prioritize these other
programs to ensure maximum wetland protection. The current
situation has created confusion and chaos, not only for the
regulated community, but also for the States. States have a
principal role to play in environmental protection. As the
Supreme Court noted in the SWANCC decision, granting the Corps
and EPA such sweeping jurisdiction would result in a
significant impingement of the States' traditional and primary
power over land and water use. At the time of the decision,
many States already had robust wetland protection programs.
Since then, several other States, notably Ohio and Wisconsin,
have also passed legislation to address isolated waters in
light of the SWANCC decision.
It is important to note that the confusion that has
festered for the last 2 years is not only detrimental to
individuals in the regulated community, it is also detrimental
to the environment. The longer that the jurisdiction of the
Corps remains vague and unresolved, the more likely it is that
truly valuable wetlands will elude the protection of all the
Federal and State programs designed to protect them.
The key purpose of this hearing is to evaluate what we are
doing about wetlands protection and how this Congress should
respond to setting the regime in place so that we have an
effective Federal approach to protecting wetlands, while still
respecting States' rights.
With that, let me turn to our ranking member.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. Thank you. Good morning, everyone, and
thank you for being here. Thank you, Senator Crapo, for holding
this hearing this morning. I would also like to welcome Senator
Feingold, who has been a strong supporter of the Clean Water
Act.
The Supreme Court's decision in the SWANCC case has caused
a great deal of confusion and concern. It has many people
questioning the intent of Congress when we first passed the
Clean Water Act more than 30 years ago. Although I was not here
in 1972, I had been here during subsequent consideration of the
Clean Water Act legislation. I do not believe that we have ever
wanted to protect less of our Nation's waters. However, this
decision does just that. It reduces the protection of isolated
wetlands under the Clean Water Act.
We are here today to hear varying opinions about the
ramifications of the SWANCC decision on the Nation's waterways.
Some, like Senator Feingold and myself, believe that the
definition of ``water'' in the Clean Water Act should be
changed to make clear the intent of Congress that all waters of
the U.S. should be protected. Others feel changes to existing
regulations are necessary, and some believe nothing needs to be
done in light of the SWANCC decision.
The Administration is pursuing a regulatory solution to the
implications of the SWANCC decision. I have serious concerns
about EPA and the Corps' guidance and advance notice of
proposed rulemaking, and the effect they will have on the
protection of waters throughout the United States from
pollution.
I look forward to hearing from each of our witnesses today
on the implications of the SWANCC decision. I am compelled, Mr.
Chairman, to bring up the recent troubling news regarding EPA's
Clean Water Act Enforcement Program. Two recent articles in the
New York Times and the Washington Post document extensive
noncompliance with discharge permits, a dramatic decline in
enforcement, and an apparent lack of commitment to modernizing
the data control system used to verify permit compliance. I ask
unanimous consent that these articles be inserted in the
record.
Senator Crapo. Without objection.
[The referenced document follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Senator Jeffords. I hope that the EPA is taking this issue
seriously, and I look forward to hearing your plans to
strengthening the enforcement. It is imperative that we do not
allow the Clean Water Act to become, or perhaps to remain, a
license to pollute. I have several documents that I would like
to ask unanimous consent to submit for the record, including a
statement from Senator Lieberman, a statement from Senator
Gramm, and a statement from the Association of State Water
Pollution Control Administrators.
Senator Crapo. Without objection.
Senator Jeffords. I would also like to submit excerpts of
comments by several States on the advance notice of proposed
rulemaking to the committee record.
Senator Crapo. Without objection.
[The referenced document follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Senator Jeffords. Interestingly, a majority of the States
represented by Senators on this committee have commented in
opposition to the scope of the ANPRM.
Senator Crapo, I want to thank you for holding this hearing
and look forward to listening to the witnesses and working with
you.
Senator Crapo. Thank you very much.
Next, we will turn to our full committee Chairman, Senator
Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman. I appreciate very
much your holding this hearing.
Nearly 2 \1/2\ years ago the Supreme Court ruled that the
Corps and the EPA had exceeded their authority under the Clean
Water Act. Up until this case, the Agencies had assumed that
the Clean Water Act had granted them jurisdiction over
virtually all waters potentially affecting commerce in the
Nation. The Supreme Court rejected that claim in the SWANCC
case.
Rather than expand Corps and EPA jurisdiction to the very
ends of the Commerce Clause, the Court chose to read the
statute as it was written. Consequently, the Corps and the EPA
have jurisdiction over navigable waters and waters that at are,
quote, ``inseparably bound up with navigable waters.'' Whether
one agrees or disagrees with the Supreme Court's decision, the
fact remains that it could significantly change the
jurisdiction of the Corps to regulate isolated waters.
On the last day of the Clinton Administration, the Corps
and the EPA issued a joint memorandum to their regional
offices. While this memo was swiftly issued, it appears to have
done little to clarify Federal jurisdiction in light of the
SWANCC decision. Consequently, Federal jurisdiction over waters
should be considered on a case-by-case basis in consultation
with legal counsel, the Order read. This case-by-case approach
resulted in widely varying interpretations of the scope and
jurisdiction by Corps and EPA field offices. Not only is there
no consistent definition of what ``isolated,'' ``adjacent,'' or
``tributary'' mean, there are also huge disparities in what
type of information or criteria are used for determining
jurisdiction. Some offices use maps; some use aerial
photography; while others conduct site visits. The guidance
issued by the Agencies last January, like the earlier Clinton
Administration guidance, did little to clear up the quagmire of
nebulous regulations. By providing no detailed or definitive
criteria for field staff, Corps and EPA headquarters have
simply perpetuated the already intolerable level of confusion
in the 404 Program.
The fact that 2\1/2\ years after the Supreme Court
decision, the Agencies still have not proposed any changes to
the regulations is disturbing on two counts: first, that the
American public has been subjected to an arbitrary and
inconsistent regulatory policy; and second, it casts doubt on
the ability of the Corps and the EPA to prioritize their scarce
resources in order to maximize protection of the environment. I
think, Mr. Chairman, in your opening statement, you talked
about the staffing problems that are there and the fact that
the capacity just isn't there.
From their prepared testimony, it appears that the Agencies
at least recognize there is a problem. I just hope that they
follow through with their pledge of responsible stewardship to
ensure that Federal programs effectively and consistently
maintain environmental protection.
Senator Crapo. Thank you very much, Mr. Chairman.
Senator Thomas?
OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
STATE OF WYOMING
Senator Thomas. Thank you, Mr. Chairman. I agree with what
you said and what has been said here.
I certainly thank you for having this hearing and I want to
particularly welcome my friend, the Assistant Attorney General
Tom Sansonetti, whom we have worked with in Wyoming for years.
Since the Corps and the EPA have agreed to issue additional
clarifying guidance and rulemaking definitions, much confusion
has apparently existed and continues to exist. It is
impossible, it seems to me, for State and local governments, as
well as regulated communities, to comply with the law with this
level of uncertainty. So hopefully we can have some
clarification to it.
In my opinion, rather than Agencies defining this is such a
manner as to result in another barrage of legal challenges,
resources could better be spent supporting our State efforts.
In my State of Wyoming, the Department of Environmental
Quality, the statutes and rules do include wetlands as surface
water of the State. We believe the State can oversee and
provide protection, and look forward to improving Federal-State
cooperation and coordination.
I thank you, sir.
Senator Crapo. Thank you very much, Senator Thomas.
We will now proceed to our first panel. Today we have three
panels and a lot of witnesses. So I would encourage all of the
witnesses to remember that we have a 5-minute rule. We want to
save plenty of time for questions. I will try to remind you of
that as we move along.
Our first panel is one of our members, Senator Russ
Feingold, who has some legislation that he wants to present to
us and discuss today. Senator Feingold, go ahead please.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A UNITED STATES SENATOR
FROM THE STATE OF WISCONSIN
Senator Feingold. Thank you very, very much, Mr. Chairman.
I thank you for the opportunity to appear before you today. I
would like to acknowledge the very generous and forthright
assistance provided to me as I sought an opportunity to testify
before the subcommittee on this matter, by both the Chairman of
the full committee, Senator Inhofe, who was very courteous, and
of course, the ranking member, Senator Jeffords, who is a
strong cosponsor of the legislation I have introduced to
reaffirm Federal Clean Water Act jurisdiction, S. 473. Of
course, I acknowledge the longstanding important leadership
that Senator Jeffords has shown on so many of these issues. And
I thank you, Mr. Chairman.
I have a longer version of my statement I would like to ask
to submit for the hearing record.
Senator Crapo. Without objection.
Senator Feingold. Mr. Chairman, this is a very important
hearing. My experience as the lead sponsor of legislation on
this issue in both the 107th and current Congress, I can say
that the debate over whether our Federal law should continue to
recognize the interconnected nature of our water systems is a
growing national discussion. I can also say that I believe it
is a debate that is unnecessary and is one that Congress should
end. We need to be clear that Congress intends to erase any
lingering ambiguity, to reconfirm the original intent of the
Clean Water Act, and to protect our waters, rather than lose
them. This hearing I think goes a long way to achieving that
goal and I commend you, Mr. Chairman, for being willing to seek
confirmation of the state of Federal law on this matter.
In the U.S. Supreme Court's January, 2000 decision, Solid
Waste Agency of Northern Cook County v. the Army Corps of
Engineers, a five to four majority limited the authority of
Federal agencies to use what was called the Migratory Bird Rule
as the basis for asserting Clean Water Act jurisdiction over
non-navigable intra-State isolated wetlands, streams, ponds and
other bodies of water. This decision, which the committee knows
as the SWANCC decision, means that the Environmental Protection
Agency and the Army Corps of Engineers can no longer enforce
Federal Clean Water Act protection mechanisms to protect
wetlands solely on the basis that they are used as a habitat
for migratory birds.
In its discussion of the case, the Court went beyond the
issue of the Migratory Bird Rule and questioned whether
Congress actually intended the Clean Water Act to provide
protection for isolated ponds, streams, wetlands and other
waters, as it had been interpreted to provide for most of the
last 30 years. While not the legal holding of the case, the
Court's discussion, as many of you have pointed out, has
resulted in a wide variety of interpretations by Federal, State
and local officials that jeopardize protection for wetlands,
streams and other waters.
Within days of the SWANCC decision, constituents came to my
town hall meeting asking for Congress to respond to this
decision immediately. As was pointed out, Wisconsin became the
first State to pass legislation to assume regulatory
jurisdiction over wetlands left unprotected by the Supreme
Court decision. Wisconsin has 15,000 named lakes and ponds, 5.3
million acres of wetlands, and approximately 44,000 miles of
streams. Wisconsin estimated that if SWANCC's holding limits
jurisdiction over so-called ``isolated'' wetlands, more than
1.1 million acres of wetlands in Wisconsin would no longer have
Federal protection. Our State's legislation has become the
model for several States.
But the confusion over the interpretation of the SWANCC
decision is growing, not I believe, because of the actual
holding in the SWANCC case itself, but because of the manner in
which Federal agencies are implementing the decision. On
January 15, 2003, the EPA and the Corps published in the
Federal Register an advance notice of proposed rulemaking
raising questions about the jurisdiction of the Clean Water
Act. Simultaneously, they released a guidance memo to their
field staff regarding Clean Water Act jurisdiction. The
agencies claim these actions are necessary because of the
SWANCC case, but both the guidance memo and the proposed
rulemaking go far beyond the holding in SWANCC.
The guidance took effect right away and has had an
immediate impact. It tells the Corps and the EPA staff to stop
asserting jurisdiction over isolated waters without first
obtaining permission from headquarters. Waters that the EPA and
Corps staff judged to be outside the Clean Water Act, Mr.
Chairman, can then be filled, dredged and polluted without a
permit or any other longstanding Clean Water Act safeguard. The
rulemaking announces the Administration's intention to consider
even broader changes to Clean Water Act coverage for our
waters. Specifically, the Agencies are questioning whether
there is any basis for asserting Clean Water Act jurisdiction
over additional waters, like intermittent streams. The
possibility for a redefinition of our waters is troubling
because there is only one definition of the term ``water'' in
the Clean Water Act. So any change in the regulatory definition
of ``water'' will affect the entire law--the Wetlands Program,
the Point Source Program, which stops the dumping of pollution,
and the non-point program governing pollution run-off--all
depend on the same definition of ``water.''
Even while EPA and the Corps consider whether to conduct a
rulemaking to rewrite the definition of ``water,'' the U.S.
Department of Justice is in Federal court defending the legal
validity of the existing regulatory definition. Indeed, in
recent briefs filed by the Justice Department, the
Administration has argued forcefully that the broad definition
of ``water'' in the current rules is not only valid, but that
it is necessary in order for the goal of the Clean Water Act to
be met, to make all of the Nation's waters safe for fishing,
swimming and other uses.
So Mr. Chairman, in my view, Congress decided this debate
over the scope of the Clean Water Act in 1972, and the renewed
debate should end now. Congress needs to reaffirm the
longstanding understanding of the Clean Water Act's
jurisdiction to protect all the waters of the United States.
All my legislation does is that. It is very simple. It adopts a
statutory definition of, quote, ``waters of the United
States,'' unquote, based on the longstanding definition of
``water'' in the EPA's and the Corps of Engineers' regulation.
Second, it deletes the term ``navigable'' from the Act to
clarify that Congress' primary concern in 1972 was to protect
the Nation's waters from pollution, rather than just sustain
the navigability of waterways and to reinforce that original
intent.
Finally, it includes a set of findings that explain the
factual basis for Congress to assert its constitutional
authority over streams, wetlands, ponds and other waters on all
constitutional grounds, including the Commerce Clause, the
Property Clause, the Treaty Clause, and the Necessary and
Proper Clause.
So Mr. Chairman, as the committee knows, I feel that
Congress needs to reconfirm the Clean Water Act's jurisdiction
to protect all waters of the United States. I believe the
legislation I have introduced does no more and no less than
that, and I hope this hearing will provide the committee with a
good justification for moving that measure forward. I do thank
you for your generous time and the opportunity to share my
views and those of my State.
Thank you, Mr. Chairman.
Senator Crapo. Thank you very much, Senator Feingold. We
appreciate your taking the time to present your legislation to
the committee and your interest in this issue.
Senator Jeffords?
Senator Jeffords. As you mentioned in your statement, the
State of Wisconsin passed a new wetlands law after the SWANCC
decision. In fact, it was the first State to do so.
If the waters discussed in the advance notice of proposed
rulemaking were redefined out of Clean Water Act safeguards,
what would that mean for wetlands, streams and small ponds in
your State?
Senator Feingold. As I indicated in my testimony, if you
have this broader, sort of over-arching definition of
``water,'' it could implicate far more bodies of water in
Wisconsin than is simply covered by the law that we passed in
Wisconsin to make sure that we still had the Migratory Bird
Rule in effect. We believe it would endanger many, many
important bodies of water in our State and we need the Federal
definition to be broad and appropriate in terms of the
traditional understanding of the Clean Water Act in order for
our waters to be protected.
Senator Jeffords. If it is covered by your State, would the
waters be fully protected by your State law?
Senator Feingold. As I like to kid around, the birds in
Wisconsin are very smart, but they don't know where the State
line is. So if they go down to Illinois or over to Minnesota
and there isn't this kind of protection, obviously that is not
how ecosystems work. And that is why I began my remarks by
talking about the interconnectedness of water and waterways.
This is what it is all about. We have a great environmental
tradition in my State. I was proud that a Republican Governor
of our State took the lead in saying, we are not going to go
along with the SWANCC decision, but that is not enough to
protect the waters of not only Wisconsin, but of the whole
country.
Senator Jeffords. So Federal action is incredibly
important, as far as you are concerned?
Senator Feingold. It is absolutely essential that this
confusion, which all the committee members are aware of, be
resolved. And it is absolutely essential that it not be
resolved in a way that gets away from the classic and
traditional understanding over 30 years that there is a
significant and broad understanding of what ``water'' means so
that we can get at isolated waters and other types of waters
that have to be protected, as well as simply navigable waters.
Senator Jeffords. Thank you very much.
Senator Crapo. Senator Inhofe?
Senator Inhofe. As usual, you are very articulate and
succinct in the three things that your legislation does. I have
no questions.
Senator Crapo. Senator Thomas?
Senator Thomas. I have no questions.
Senator Crapo. Alright. Thank you, Senator Feingold.
Senator Feingold. You are a very kind committee. Thank you
very much.
Senator Crapo. We appreciate your presenting your
legislation to us. Thank you.
Our second panel, and you may come up as I announce your
names, is: Tracy Mehan, the Assistant Administrator for Water
at the EPA; George Dunlop, Deputy Assistant Secretary for Civil
Works, the Department of the Army; and Thomas Sansonetti,
Assistant Attorney General for Environment and Natural
Resources of the Department of Justice.
Gentlemen, we appreciate your being here. Again, as I
indicated at the outset, I would like you to try to pay close
attention to the time limits that we have. We are going to have
a lot of questions, I assume, today and we want to spend as
much time as we can on them. We do have your written testimony.
It has been reviewed. So we would ask you to summarize your
testimony in the 5 minutes allotted to you.
With that, let's begin with Mr. Mehan.
STATEMENT OF G. TRACY MEHAN, ASSISTANT ADMINISTRATOR FOR WATER,
ENVIRONMENTAL PROTECTION AGENCY
Mr. Mehan. Good morning, Mr. Chairman and members of the
subcommittee. I welcome the opportunity to present testimony to
you today regarding the Clean Water Act jurisdictional issues
over navigable waters.
In keeping with your kind letter of invitation, my
testimony will address issues associated with, I use the
colloquial expression, the SWANCC case. The Environmental
Protection Agency and the Army Corps of Engineers share
responsibility for the Section 404 Program under the Clean
Water Act which regulates the discharges of dredged and fill
material. Testifying with me today will be George Dunlop to my
left, Deputy Assistant Secretary of the Army for Policy and
Legislation. As you indicated, we have submitted joint
testimony which we would ask to be placed in the record, Mr.
Chairman.
Senator Crapo. Without objection.
Mr. Mehan. In SWANCC, the Supreme Court held that the
Federal Government had exceeded its authority in asserting
Clean Water Act jurisdiction pursuant to Section 404(a) over
isolated, intra-State, non-navigable waters under the Code of
Federal Regulations, based on their use as habitat for
migratory birds, pursuant to preamble language commonly
referred to as the Migratory Bird Rule. The SWANCC case
involved an abandoned sand and gravel pit on which a consortium
of municipalities planned to develop a disposal site for solid
waste.
``Navigable waters'' are designed in Section 502 of the
Clean Water Act to mean, quote, ``waters of the United States,
including territorial seas.'' After reviewing the
jurisdictional scope of the statutory definition of ``navigable
waters'' in Section 502, the Court concluded that neither the
text of the statute nor its legislative history supported the
assertion of jurisdiction over the waters involved in SWANCC.
At the same time, the Court in SWANCC did not disturb its
earlier holding in the United States v. Riverside Bayview
Homes, a 1985 case out of Michigan, which found that Congress'
concern for the protection of water quality and aquatic
ecosystems indicated its intent to regulate wetlands, quote,
``inseparably bound up with,'' close quote, jurisdictional
waters. As the SWANCC Court noted, it was the significant nexus
between the wetlands and the navigable waters that informed
their reading of the Clean Water Act in Riverside Bayview
Homes.
Now, because the SWANCC decision addressed Federal
jurisdiction pursuant to the Clean Water Act, it still does not
affect other Federal or State laws, as the Chairman indicated,
and I will not enumerate all those laws and programs which are
designed to protect wetlands. However, because the decision did
involve the Court's interpretation of navigable waters, as that
term is defined in Section 502(7) of the Clean Water Act, it
does have implications for other Clean Water Act programs
besides Section 404, whose jurisdiction all rest upon the
meaning of that term. These include Section 303 of the Water
Quality Standards Program; Section 311, the Spill Program, as
well as the Oil Pollution Act; Section 401, State Water Quality
Certification Program; Section 402, the National Pollutant
Discharge Elimination System, or the NPDES Permitting Program.
So we see that EPA considers SWANCC in the context of the
entire Clean Water Act and we need to take that into account
again, so the ante is much higher for the National Water
Program in this regard.
Our written statement for the record addresses in some
detail the January 15 advance notice of proposed rulemaking, as
well as our joint guidance, which was published in the ANPRM
appendix, so I am not going to review all that here, although
George may be getting into some of that. I do wish to
emphasize, we issued the ANPRM because we recognize the benefit
of obtaining public comment on the important issues raised by
the SWANCC decision. Issuance of that ANPRM was not a legal
requirement under the Administrative Procedures Act, but was an
extra measure we undertook to ensure early public input before
we determined how best to proceed. It presupposes no particular
outcome, nor any preordained result, but rather demonstrates
our commitment to public involvement as we consider Clean Water
Act jurisdictional issues in light of the SWANCC case.
Following the close of the public comment period in April,
we received over 133,000 comments. While many of these comments
were the result of e-mail or write-in campaigns, postcards and
whatnot, we received approximately 500 individual letters
discussing specific issues in some detail, substantive
comments. Review and analysis of these comments will be a
resource-intensive task which we have already started, and we
will be hopefully expeditiously carrying out this job summer
with the help of a contractor.
At this stage, we have done a preliminary review of some of
the comments and they reflect a spectrum of Tribal, State, and
local governments, professional organizations, interest groups,
and the general public. Although by numbers alone, a
substantial majority of comments support a narrow reading of
SWANCC and opposition to reduction in Clean Water Act
jurisdiction, there is a wide breadth of opinion and divergence
of views contained within the comments. The extent and rigor of
the debate resulting from the ANPRM is clearly indicative of
the importance which the public attaches to the issues of Clean
Water Act jurisdictions.
Comments from the regulated community favored a broad
reading of SWANCC and a reduction in Federal jurisdiction under
the Clean Water Act, while those from the environmental groups
generally urged just the opposite. I would like to call your
attention to one body of comments, that is, the State comments
from State agencies. The water program is the quintessential
Federal environmental program, since 45 States have delegated
authority under the Clean Water Act; 49 States have delegated
authority under the Safe Drinking Water Act.
We received comments from 42 States, as well as
associations such as the Association of State and Interstate
Water Pollution Control Administrators, ASIWPCA, and the
Association of State Floodplain Managers. While some certainly
expressed the view that limited Federal jurisdiction was
preferable and a necessary outcome of the SWANCC decision, more
common themes from these commenters were that a substantial
reduction in Federal jurisdiction was not warranted, would
potentially disrupt the Federal-State partnership built up over
the last 30 years of Clean Water Act implementation, and that
budget and/or legal constraints would limited or delay their
ability to develop local programs.
A significant number of these commenters also provided
information and data on the nature and extent of aquatic
resources potentially at risk if Federal jurisdiction were to
be significantly reduced. Many of these pointed out the
important functions provided by these resources, such as
floodwater reduction, groundwater re-charge, and habitat
values.
I note that all these comments are available to any of the
members and I believe most of the States of the members did
submit comments, not all, but most, and we would be happy to
provide those to you at your request.
We recognize the Tribes and States, the regulated
community, the public at large and the environment itself would
benefit from increased clarity as to the extent of the Federal
Clean Water Act jurisdiction in light of SWANCC. Providing for
that increased clarity is no simple matter, involving as it
does an interplay between complex legal issues, implications
for an array of Clean Water Act programs, and consideration of
the appropriate role of the Federal Government in the
protection of aquatic resources. The issues to be addressed are
significant and will help chart the direction for future Clean
Water Act implementation, again for the whole Act, not just for
Section 404 and not only for EPA and the Department of Army,
but also for our Tribal and State partners who actually carry
out these laws in many cases.
We are fully committed to protecting all Clean Water Act
jurisdictional waters, including jurisdiction of wetlands as
was intended by Congress. Our goal in moving forward is to
clarify what waters are properly subject to Clean Water Act
jurisdiction in light of SWANCC, and afford them full
protection through an appropriate focus of Federal and State
resources in a manner consistent with the Act. We will
carefully consider all the comments we received in response to
our ANPRM as we undertake this arduous task.
Thank you for your attention.
Senator Crapo. Thank you, Mr. Mehan.
Mr. Dunlop?
STATEMENT OF GEORGE DUNLOP, DEPUTY ASSISTANT SECRETARY FOR
CIVIL WORKS, DEPARTMENT OF THE ARMY
Mr. Dunlop. Thank you, Mr. Chairman. I appreciate the
opportunity to share the Army's perspective about the current
regulatory status of Federal jurisdiction under the Clean Water
Act in light of the SWANCC decision.
As you know, indeed as you said, the EPA and the Corps of
Engineers share responsibility for the Section 404 Program
under the Clean Water Act. Fulfillment of the Corps' day-to-day
responsibilities require about 1,200 staff in 46 Division and
District Offices nationwide, with an annual budget of about
$140 million. These resources are required each year to process
over 80,000 individual and general permit authorizations and
appeals, including those associated with jurisdictional
determinations.
The SWANCC decision held that the Corps does not have
regulatory jurisdiction under the Clean Water Act for non-
navigable, isolated, intra-State waters where the basis for
asserting that jurisdiction is solely upon the use or the
potential use of those waters by migratory birds. On January
10, 2003, following extensive interagency coordination with the
Department of Justice and the EPA, the Army and the EPA jointly
signed post-SWANCC clarifying guidance. This guidance provides
that jurisdictional decisions will be based upon, first of all,
Supreme Court decisions, including Riverside Bayview, which
affirmed that adjacent wetlands are jurisdictional under
Federal law, and SWANCC of course, as well as other relevant
regulations and, of course, on case law where applicable in
each jurisdiction.
So with the basis of those guidances, we established four
key points. First, as the Supreme Court held, field staff
should not assert jurisdiction based on the Migratory Bird
Rule. Second, field staff should seek formal project-specific
headquarters approval prior to asserting jurisdiction over
isolated non-navigable intra-State waters when such
jurisdiction would be based on inter-State commerce factors
listed in the Corps' regulations. Third, the field staff should
continue to assert jurisdiction over traditional navigable
waters, including adjacent wetlands and generally speaking,
their tributary systems.
This guidance describes ``traditional navigable waters'' as
waters that are subject to the ebb and flow of the tide or
waters that are presently used or have been used or may in the
future be susceptible to use for transport of inter-State or
foreign commerce. And then fourth, the guidance made clear that
it supersedes the previous EPA legal memorandum concerning
SWANCC issued on January 19, 2001.
The Supreme Court's invalidation of the use of the
Migratory Bird Rule as a basis for Federal jurisdiction over
certain isolated waters has focused greater attention on
jurisdiction generally. Specifically, it has focused attention
on Federal jurisdiction over tributaries to jurisdictional
waters and over wetlands that are adjacent wetlands for Clean
Water Act purposes. The joint guidance does provide useful
information on Clean Water Act jurisdiction to the public and
to the regulatory staff. However, further information is needed
to provide the degree of certainty that Agency personnel and
the regulated public deserve, and to ensure fair, effective and
predictable administration of the Clean Water Act.
Any ongoing consistencies in jurisdictional determinations
made by a Corps official serve to highlight our executive
branch responsibility to provide clarity that will arise from
the ANPRM process. The ultimate direction of any proposed
rulemaking has not been predetermined, and will be influenced
significantly by the public comment to the advance notice. Our
general goals will be to provide clarity to the public and to
improve consistency in Clean Water Act jurisdictional
determinations nationwide.
In conclusion, I would like to emphasize that we remain
fully committed to the protection of all Clean Water Act
jurisdictional waters, including adjacent wetlands.
Safeguarding these waters is a crucial function because it
ensures that the chemical, physical and biological integrity of
these waters is maintained and preserved for future
generations, as was intended by Congress.
Thank you for providing me this opportunity, and I am
prepared to answer any questions you may present to me.
Senator Crapo. Thank you, Mr. Dunlop.
Mr. Sansonetti?
STATEMENT OF THOMAS L. SANSONETTI, ASSISTANT ATTORNEY GENERAL
FOR ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF JUSTICE
Mr. Sansonetti. Chairman Crapo and members of the
subcommittee, I am pleased to be here today to discuss the
Department of Justice's response to the Supreme Court's
decision in SWANCC. In my testimony today, I will describe our
work in connection with the Clean Water Act, the interpretation
of which was at issue in SWANCC, and the efforts we have made
to ensure that the positions that we have taken in litigation
are consistent with SWANCC.
I will also briefly touch upon our efforts to improve
Federal-State coordination and cooperation in wetlands
protection and enforcement. In my written testimony, which I
hope you will be able to put into the record in its entirety, I
have provided the subcommittee with a perspective on the
breadth of our work. My Division has a docket of well over
10,000 pending cases and matters, with cases in each and every
judicial district in the Nation. The majority of these cases
are defensive. Although some of these defensive cases involve
the Clean Water Act, many more do not. In fact, we litigate
cases arising from over 70 environmental and natural resource
laws. Even if one were to focus only on our enforcement docket,
wetlands cases form over a very small subset of our work.
With that background, I will now discuss in more detail our
role with regard to implementation of the Clean Water Act. Our
primary role with regard to the Clean Water Act is to represent
the Environmental Protection Agency and the Army Corps and any
other Federal agency that might be involved in Clean Water Act
litigation. Again, this litigation can either be defensive or
affirmative. In regard to defensive litigation, it takes a
variety of forms. For example, affected parties will sometimes
bring an action against the Corps of Engineers when it grants
or denies a permit. Affected parties may also seek judicial
review of any regulations. Finally, Federal agencies can
themselves be sued for discharging pollutants into the waters
of the United States if they have not complied with the
applicable requirements of the Clean Water Act.
We also bring affirmative litigation under the Clean Water
Act. CWA civil judicial enforcement actions generally begin
with a referral or investigation from EPA or the Corps
regarding an alleged violation. We then conduct our own
internal independent inquiry to determine whether we have
sufficient evidence to bring the case, and whether it is
appropriate for judicial action. If we determine that judicial
enforcement is warranted, we also explore possibilities for
achieving settlement for the alleged violations as appropriate.
As I have noted in my written testimony, the vast majority
of environmental violations are addressed and resolved by State
and local governments. In the wetlands area, most Federal
enforcement of the Clean Water Act that is carried out by the
EPA and the Corps at the administrative level does not involve
us. Thus, our work is only a small, albeit important, part of
Clean Water Act implementation.
In regard to SWANCC, just as with any other Supreme Court
case, we try to ensure that the legal positions taken on behalf
of the Federal Government are consistent, in this case
obviously we are dealing with SWANCC. So after the SWANCC
decision came out in January, 2001, my Division undertook a
comprehensive review of our Clean Water Act docket. We
scrutinized any case that involved isolated waters, the
Migrator Bird Rule, or analogous theories to determine whether
SWANCC had undermined geographic jurisdiction in the case. We
took action as appropriate. For example, in the Borden Ranch
case, we decided not to pursue an enforcement claim in light of
SWANCC, even though we had won on that claim at trial.
In addition to reviewing our existing cases for consistency
with SWANCC, we have established a process for ensuring that
our litigation positions going forward are internally
consistent and appropriately coordinated with the Federal
Government. Thus, in addition to the review of all of our
prospective enforcement cases that I described earlier, we also
focused on whether there is a sound factual and legal basis
consistent with SWANCC for proceeding in our Clean Water Act
cases. We apply a similar process in our defensive CWA-related
litigation.
Our careful examination of our cases has paid off with
success in the courts. Of the 27 cases in which we have filed
SWANCC-related briefs in the Federal courts, 22 of those 27
have resulted in court decisions thus far. Seventeen of those
decisions have been in favor of the United States. I would be
pleased to make available to the subcommittee, of course, any
of our briefs that it may request.
We have also made great strides in improving Federal-State
cooperation and coordination in environmental protection
generally, and we are redoubling these efforts in connection
with SWANCC. Six months ago, we hosted a national wetlands
conference designed in cooperation with several State
associations, the EPA and the Corps. The conference took place
at our South Carolina training facility and attracted
government officials from many States, including
representatives of the environment and natural resource
agencies, attorneys general offices, and even some State
legislatures. As the conference's keynote speaker, I stressed
the importance of Federal-State collaboration and cooperation
in wetlands protection and enforcement, and we look forward to
continuing this dialog with our State colleagues.
In closing, I would like to assure the subcommittee that we
are working hard to ensure that the positions we take in
litigation are consistent and well-coordinated with our client
agencies, and I would be happy to answer any questions that you
may have about my testimony.
Thank you, sir.
Senator Crapo. Thank you very much, Mr. Sansonetti.
I am going to use my question time, Mr. Dunlop, just to get
a little data from you. First of all, the Federal Government
does periodic surveys on the status and trends of wetlands. I
would like to have you tell me what these surveys say about the
total number of wetlands that are being lost and the total
number that are being gained in the United States. Do you have
that data with you?
Mr. Dunlop. No, sir. I would not have that data because the
Corps of Engineers does not have authority under law to deal
with all the wetlands of the United States. The 404 Program of
the Clean Water Act, which is our regulatory jurisdiction, our
authority, pertains only to those aquatic resources that might
be impacted by dredge and fill material. So the type of data
and information that the Corps would collect and I would be
party about knowing, would pertain to those types of waters.
As I indicated, we have about 80,000 permit actions a year
and jurisdictional decisions. One of the things, the general
guidance that pertains that might be useful to the point you
are making is that in so far as the Army jurisdiction, the
Corps' jurisdiction goes, whenever any person seeks to impact
the waters of the United States with dredge and fill material,
the law and our regulations provide that first of all, they can
only get a permit if there is no other practicable way to avoid
adverse impact. Second of all, if it is proven that there is no
other practicable way for them to use their property, then they
have to come up with options and a plan that would minimize
that impact. Then finally, once those impacts meet those tests,
if there are unavoidable impacts, then they must be mitigated.
The general rule that operates, it is not a rule, but the
rule of thumb that is used because of the effort that they make
to have no net loss of wetlands, is that this mitigation
usually requires more acreage than is filled or impacted
adversely.
Senator Crapo. Could you tell me how many permits a year
the Corps issues?
Mr. Dunlop. Well, we call them permit actions;
approximately 80,000; some years it is more. I have some data
that I could submit for the record, of course.
Senator Crapo. That would be appreciated. And do you have
any idea, just ballpark, of how many acres of wetlands that
would cover?
Mr. Dunlop. I don't think I have that data off my the top
of my head, but I sure would be pleased to provide it.
Senator Crapo. If you would, I would appreciate that. What
I am getting at is to see what kind of regulatory activity
underway at the Corps and what level of wetlands impact that
Corps is having through its regulatory process just in terms of
numbers of acres.
Mr. Dunlop. Yes, sir. I have a chart here that I can submit
for the record, maybe in the context of the total slide show we
have here. The wetland acreage impact indicates that there were
approximately last year in fiscal year 2002, 57,821 acres were
mitigated; 24,651 were impacted. So we have got in this case
better than two-to-one acres mitigated for every one impacted,
but this goes back decades, so I will present this data for the
committee.
Senator Crapo. Alright, thank you very much. I would
appreciate that.
I think, Mr. Sansonetti, I will direct this question to you
first; any one of you may answer it, probably. Could you
describe the legal and practical implications of striking the
word ``navigable'' from the Clean Water Act as Senator
Feingold's bill would do?
Mr. Sansonetti. The Department of Justice has frankly not
been asked yet to see Senator Feingold's proposed legislation,
and frankly, I have not seen it, so I am not sure if I should
be commenting on it before going through our usual review. But
just to say that there is a lot of litigation cropping up all
over the United States right now because of the SWANCC
situation.
At the present time, we have legislation in five different
Circuit Courts of Appeal right now, with arguments already
having been completed or notices of appeal filed on that very
issue. So we are going to be getting a variety of opinions over
the next year as to the importance of the word ``navigable.''
However, it is an adjective that describes the waters of
the United States, so I suspect that until either the Congress
gets back into the field of better clarifying what was in the
1972 law, then either the decision is going to be made by the
courts one by one until another case goes back up to the
Supreme Court; the Congress passes additional clarifying
legislation; or the executive branch tries to deal with it in
the form of a new rulemaking.
Senator Crapo. Thank you very much.
Mr. Dunlop or Mr. Mehan, do you have any comment on that
question--what the elimination of the word ``navigable'' would
do? I mean, obviously it is going to expand the jurisdiction of
the Act. Any observations other than that?
Mr. Mehan. No, nothing to add to Mr. Sansonetti's words.
Mr. Dunlop. No, sir.
Mr. Crapo. All right, thank you very much.
I will hold back my further questions at this point, and
will turn to Senator Jeffords.
Senator Jeffords. Mr. Mehan, I am deeply concerned about
the information in the report recently compiled by the EPA that
documents extensive noncompliance and a decline in EPA's
enforcement program. When 59 percent of those who violate toxic
permit limits do so by more than 100 percent, and 85 percent of
major facilities with significant violations do not receive
formal enforcement action, there is clearly a problem.
Can you describe the Administration's plans to respond to
this report and your level of commitment to the Clean Water Act
enforcement?
Mr. Mehan. I will try, Senator.
As you know, enforcement is handled in a separate office in
the Office of Water, the Office of Enforcement and Compliance
Assistance. I have had numerous conversations with my colleague
J. P. Suarez on his efforts to shore up that program at his
end. Looking at it from the Office of Water perspective and to
the extent that I am involved with that, enforcement begins
with a permit, the NPDES permit. That is sort of your
fundamental charter, if you will, from which inspection and
enforcement responsibilities are derived. We are undertaking a
permit integrity program right now where we are trying to look
at this whole issue of our delegated programs in a very
stressful financial environment.
As you know, the National Association of Public
Administrators says there is something like a $700 million,
approaching $1 billion shortfall in terms of managing our clean
water programs at the State level, 45 of whom have delegated
authority. My own Corps programs, including permits, are down
32 percent over the last five or 6 years. So we are trying to
come to grips with how to deal with all these pressing
responsibilities. Meanwhile, we have TMDLs coming on line and
more responsibilities.
I think information is key; having it there where managers
can monitor the facts, say, if you end up with more than 20
percent or 25 percent of your major permits in significant
noncompliance; whether the data is good or bad or needs to be
ground truth, that ought to set off some alarms and you need to
manage the issue. I think some effort at prioritization; if you
have an operation that has not really changed its production
processes at all, that permit may not be as significant as one
where you have had dynamic technological developments in that
industry.
If you on a water body that is impaired, i.e. not meeting
water quality standards, that is probably a higher priority
than one that is unimpaired; if you are near a drinking water
source; and on and on.
So we are trying to basically optimize the resources we
have to deal with a number of serious issues. Again from our
end, it starts with the NPDES permit, and we are trying to pull
together the data systems and the guidelines and do a
collaborative effort with our State partners to shore that up.
There is also the enforcement component, and I know Mr.
Suarez has talked about a watch list. He is engaging his
regional staff in a lively dialog on this very matter.
Senator Jeffords. Thank you.
Mr. Mehan, you and I exchanged letters earlier this year on
the status of Lake Champlain under this rulemaking. I ask
unanimous consent that these letters be included in the record.
Senator Crapo. Without objection.
[The referenced documents follow:]
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Senator Jeffords. In my letter to you, I asked for and
received clarification that the protection status of Lake
Champlain and its tributaries will not be affected by the
Agency's rulemaking. Is that correct?
Mr. Mehan. That is correct.
Senator Jeffords. I also asked you, and did not receive
clarification, that all similar waters will not be affected by
the Agency's rulemaking.
Mr. Mehan. As the guidance that was put out in January
says, if you have tributaries to navigable waters, that is not
an area of dispute, and that remains jurisdictional. So just by
extension of the principle, that is the case with Lake
Champlain and it would be the case with watersheds involving
navigable waters also.
Senator Jeffords. I am puzzled why all waters in this
category are not affected by the rulemaking in the same way.
Can you explain that?
Mr. Mehan. I am sorry. Could you repeat the question,
Senator?
Senator Jeffords. Why all waters in the same category are
not affected by the rulemaking in the same way.
Mr. Mehan. It is sort of a definitional issue. If you have
navigable water and you have a body water that is tributary to
the navigable water, we do not see a jurisdictional issue
there. I think the guidance in January said that.
I guess where you get into disputes is not over the
principles of law or regulation; it is the application of the
principles of law to factual circumstances. Is something really
tributary? Is it in the watershed? What is the hydrology? et
cetera, et cetera. But at least as a matter of legal
definition, I do not think there is much dispute in the case of
a tributary to a navigable waterway.
Senator Jeffords. Mr. Sansonetti, the Department of
Justice's interpretation of the SWANCC decision is considerably
narrower than construed by the EPA and the Army Corps as a
justification for changing Clean Water Act rules. Rather than
finding that the definition of ``waters of the U.S.'' needs to
be changed by a new rulemaking, the DOJ has steadfastly argued
in two dozen briefs filed in the Federal courts that Agencies'
existing definition of the ``waters of the United States'' is
valid, and indeed required to achieve the purposes of the Clean
Water Act. Are these arguments consistent with the advance
notice of proposed rulemaking issued by EPA and the Corps?
Mr. Sansonetti. Certainly they are, because you have to
remember the difference in our roles here. The Department of
Justice's responsibility is to defend the law as it exists and
the rules and regulations supporting that legislation. So the
purpose of the ANPRM was to put out an opportunity for people
to comment as to what they thought the impacts of the SWANCC
decision were, and then to allow the policymakers to decide
whether or not the rule or regulation needs to be changed. Now,
that responsibility of course falls on the EPA and the Army
Corps, but until that rule or regulation changes, the
Department of Justice has to deal with the law and the rules
and regulations as they are written. That is why you have
commented on the consistency with which the Department of
Justice has filed briefs in the cases we have litigated at both
the District and the Circuit Court levels.
That is also why I think you will find that we are very
proud of our enforcement to date because it is almost $7.95
billion that have been brought in through injunctive relief in
the last 2 years, including the largest Clean Water Act fine
ever--$8.2 million in the Allegheny Ludlum case in
Pennsylvania.
Senator Jeffords. OK, that is all.
Senator Crapo. Thank you very much.
Senator Inhofe?
Senator Inhofe. Senator Jeffords mentioned the Washington
Post article twice, and I just want to make a couple of
comments. First of all, that was supposed to be sensitive
information that was leaked internally by the EPA and it should
not have been leaked. Unfortunately as is often the case when
they leak a little bit of information, they do not give the
whole story. In my case of Oklahoma, for example, once an
institution is under the administrative orders, we can include
those statistically which some other States do not do. So it is
really not all that accurate. That always bothers me when
something is leaked and it should not have been leaked. To me,
the most significant thing about the Washington Post story was
that it showed that we did the right thing in our Wastewater
Security bill by keeping sensitive information out of the hands
of the EPA.
In the opening statement, I talked about in the last day of
the Clinton Administration, then again in January, the
information really coming down. The guidance was not very
accurate. In fact, in reading out of the report, it says,
``This memorandum does not discuss the exact factual predicates
that are necessary to establish jurisdiction in individual
cases. We recognize that the field staff and the public could
benefit from additional guidance on how to apply the applicable
legal principles to individual cases.''
In your testimony, you state that further information is
needed to provide the degree of certainty that Agency personnel
and the regulated public deserve, and to ensure the fair and
effective administration of the Clean Water Act.
So Mr. Mehan, do you anticipate that this additional
information will be supplied to the Agency personnel and the
regulated public in the form of additional guidance? If so,
when?
Mr. Mehan. As I said in my testimony, Senator, we are not
pre-judging or pre-ordaining the outcome of our review of the
public comments. After we get through the public comments, that
is just the beginning of what will be no doubt a very extensive
interagency consultation, not just with the Corps of Engineers,
not just with the Department of Justice, but with OMB, CEQ,
Department of Interior and USDA. So to make any predictions as
to outcomes or timelines, I could do that, but I would be
lying.
Senator Inhofe. All right.
Mr. Dunlop, last year the Department of Interior published
a study of isolated wetlands and included at least one
definition of ``isolated,'' and I will read that to you:
``Wetlands surrounded by upland may be considered isolated
since they are separated from other wetlands by dry land.''
This is the isolation from a geographic landscape or a
geomorphic perspective. Now, if a wetland is separated from
another jurisdictional water by dry land, does the Agency
consider the wetland to be isolated? Do you consider that to be
isolated?
Mr. Dunlop. Sir, in each of the cases that people have to
consider out in the field, they consider a number of criteria.
The guidance that we have given, that the Corps Director of
Civil Works has given to the field, is, as I outlined in my
testimony, those four factors, those four broad guidelines. In
the absence of clarity about what ``isolated'' is, as defined
in regulation and law, that of necessity leaves circumstances
where there might be what is called ``case-specific'' judgment.
There are issues that have to do with do you use the geographic
proximity, as was suggested in your question? Other folks might
maintain that you have to use a hydrological connection. These
regulations and the guidances and everything that are out there
in the field for these 1,200 people----
Senator Inhofe. I think what you are saying, Mr. Dunlop,
and I am running out of time here, is that there is no accurate
definition of ``isolated.''
Mr. Dunlop. Correct.
Senator Inhofe. Let me ask the question of Mr. Sansonetti.
From a legal perspective, this is one of the biggest problems
we have right now. Can you legally define ``isolated''?
Mr. Sansonetti. That is the subject matter of about nine of
these cases, and it is very unclear.
Senator Inhofe. How about ``adjacent''?
Mr. Sansonetti. Same problem.
Senator Inhofe. How about ``tributaries''?
Mr. Sansonetti. Same problem.
Senator Inhofe. That is the problem.
Mr. Sansonetti. It is going to be litigated through all the
courts at the present time.
Senator Inhofe. I appreciate that.
You were asked by the Chairman about some legal problems
that could come up. Do you think that the broad definition of
``water'' like that found in the Feinstein bill could lead to
or raise some constitutional questions in the future?
Mr. Sansonetti. Again, I do not want to comment on a bill I
have not read, or that the Administration has not taken a
position on as a whole, so I am going to answer it in a more
general term. I feel that at the present time, there will be
continued litigation over the term ``waters of the United
States,'' as you have just proposed it, until there is a
brighter line drawn.
Senator Inhofe. Yes, I think that is right. The last
question, Mr. Chairman, I would have for Mr. Sansonetti, when
you had at the bottom of page seven, you said, ``One of the
basic teachings of the SWANCC decision is not every wetland or
other aquatic area in the country is an appropriate subject of
Federal regulations under the Clean Water Act. Since the
decision of SWANCC, some states such as,'' and so forth.
Just what areas, can you define what should be and should
not be when you made that statement, when it is not appropriate
for the Federal Government, and what would be more appropriate
for the States?
Mr. Sansonetti. I feel that the States always have the
right under the principle of federalism to pass their own
legislation to protect the waters within their borders. I
encourage them to do so. To the degree that there are portions
of the waters not included in the legislation and the rules and
regulations that protect waters, the States always have that
right to go ahead and pass their own. I believe 15 to 18 States
already have.
Senator Inhofe. I appreciate that very much and I agree
with you.
Thank you, Mr. Chairman.
Senator Crapo. Thank you.
Senator Thomas?
Senator Thomas. Thank you, Mr. Chairman.
Mr. Dunlop, you just walked in here and had not spent a lot
of time on this. It doesn't sound like you think there is any
problem at all for the Corps.
Mr. Dunlop. No, sir. I think in my testimony I tried to
convey that as related to the issues of jurisdiction, there are
a lot of problems because of the line of questioning we just
went through. The people who are out there in the field, those
1,200 people we talked about who are the day-to-day regulators,
have general guidance, but they don't have specific guidance
and information about the definitions of some of these terms.
What is a ``tributary'' really? Does it extend to such things
as pipes and ditches? What is the meaning of ``adjacency''?
These types of questions and issues that these folks have
to deal with every day does create an enormous set of problems
for them when it comes to having consistency of approach and
predictability. So I hope I have not conveyed that there is no
problem whatsoever.
Senator Thomas. There has been apparently, and particularly
in a California water quality board, where the suggestion has
been that municipal storm sewers are considered waters of the
United States.
So my reaction to both of you is you do not seem to have
any solution. What do you want to do? Do you want to be able to
expand jurisdiction? Do you want to be able to simply define? I
think clearly it could be defined. It could be defined. Or do
you want to let the States have more authority, as some of us
suggest? I cannot sense that you have any notion where you want
to go.
Mr. Dunlop. Yes, sir. There are three options really that
we have from the Federal perspective. Of course, the one about
the State perspective is another. But from the Federal
perspective, we can continue with the guidances as they now
are, which would result with this lack of clarity in the
court's playing an increasing role. Option two is to, as is
informed by this advance notice of proposed rulemaking, perhaps
move to a rule, a proposed rule, and then all of that process
that Mr. Mehan has described. The third option is perhaps again
through the ANPRM to come up with additional guidance. But one
of those three factors or options is going to further inform
public policy.
Senator Thomas. That is true. We have been 3 years getting
there, however, and have not done that.
Mr. Mehan, you indicate that you put out in January a
proposed rule. The reaction I get is that that rule has not
helped to clarify the situation at all.
Mr. Mehan. Senator, it was not a rule. It was an advance
notice of proposed rulemaking.
Senator Thomas. I understand, but it would be a rule--that
is what you put out is a trial rule, exactly, wasn't it?
Mr. Mehan. It was not.
Senator Thomas. What did you put out?
Mr. Mehan. As I said in my testimony, it was basically an
invitation for more information, more data, more considered
opinion whether it is legal, scientific, policy or economic
that would be relevant to the two questions that were framed
into it.
Senator Thomas. You don't have any point of view on that,
then? You just asked for everyone else's point of view and then
wonder why you don't have a decision?
Mr. Mehan. I have never been accused of lacking a point of
view on anything, but I don't speak for myself as I sit here. I
speak for an Agency.
Senator Thomas. I am not talking about that. Here is an
Agency that has a law to work under and they ought to be able
to interpret that and put out something that would help clarify
it. You put out something that did not help clarify it.
Mr. Mehan. Let me with great temerity go this far. From an
EPA perspective, our inclination would be to follow ecology and
hydrology as far as the law will allow us. In other words, look
at things on a watershed basis. However, it is entirely
possible that Congress intended to not go that far. So I think
part of the dialog we are having is, to what extent legislative
intent trumps ecology and hydrology.
Senator Thomas. That is kind of what the court is supposed
to do, isn't it?
Mr. Mehan. Well, there has been a lot of talk about
uncertainty in our regulations. I think there is uncertainty in
the law; there is uncertainty in the legal decisions by the
Court. It was a five-four decision. We are seeing a whole raft
of different opinions by the Circuit Courts and the District
Courts.
Senator Thomas. Do you work with court decisions based on
what the number of judges were and how they voted?
Mr. Mehan. No, but as one who practiced law for 15 years,
as a practical matter you do wonder whether five-four decisions
are going to have staying power.
Senator Thomas. I understand, but here we are trying to
solve a problem. Here we are, you are indicating that there is
$1 billion worth of undone work. Instead of finding a solution,
why you just kind of keep asking people what they want to do.
It seems to me you have to come to the snubbing post and do
something here pretty soon. That is what I hoped you maybe
would have some suggestions here as to how we roll along.
Thank you.
Senator Crapo. Thank you.
Senator Murkowski?
OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM THE
STATE OF ALASKA
Senator Murkowski. Thank you. I appreciate the testimony
this morning.
We have more than our share of wetlands in Alaska, although
we are happy to have them and are taking good care of them. But
according to the U.S. Fish and Wildlife Service, Alaska has
more wetlands than the remainder of the U.S. combined; over 174
million acres of lands designated as wetlands which is more
than 40 percent of the State of Alaska. So in other words, we
have more wetlands in Alaska than the entire State of Texas.
It is huge. And we have some pretty interesting wetlands.
As you probably know, up in the North Slope we have ice lenses,
which is permafrost where the water has melted. These are
basically potholes all over; 80 percent of the 20 million acres
in Alaska's North Slope are classified as wetlands. They are
certainly not navigable; you can't put a boat in them.
In the southern part of the State we have another issue. We
have mountaintops where we have areas of muskeg where there are
little lakes all over; absolutely impossible to get to;
absolutely impossible to, if you are talking about
navigability, having an implied potential to be used in
interstate commerce, it does not exist up there. So our
wetlands I think are very distinct and unique.
Mr. Dunlop. I cannot address that specifically. I would
have to inquire of the Alaska Division and to the Corps
regulatory people to get a precise answer for you, Senator.
Senator Murkowski. How would the Corps view the example of
up in the North Slope where you have these potholes, or the
muskeggy lakes up in the tops of the mountains in Southeastern
Alaska? How would the Corps view these, when we are talking
about isolated or non-isolated waters?
Mr. Dunlop. Well, of course the direction that we have now
from the Supreme Court is to follow the guidance that they have
given us, that lands that we cannot use the Migratory Bird
Rule; lands that don't involve interstate commerce or foreign
commerce would not be involved. That is the first of the four
elements that we have that the Corps uses in determining
jurisdiction.
Senator Murkowski. So what you are saying, then, is that
the State would have jurisdiction?
Mr. Dunlop. Well, I am not informed of that, Senator. I
would have to inquire further and find out. I do not know the
specifics of how the guidance is being carried out in each of
the Divisions of the Corps.
Senator Murkowski. Wouldn't the guidance be the same within
the Divisions of the Corps? I would think that the Corps would
treat the States in the same way.
Mr. Dunlop. Yes, the guidance is general. That is right.
What we are trying to achieve is indeed this consistency of
approach throughout the United States where it is appropriate.
Given the fact, of course, as you are indicating in your
question, that in the natural system there are always siting
situations in specific circumstances. There never will be a
complete set of consistency that one cookie cutter size fits
all for everywhere in America. There just cannot be because the
resources are too dynamic.
Senator Murkowski. We appreciate that there can't be a
perfect standard, but we have to get some legal definition to
identify the non-navigable waters. Recognizing that we don't
have that set definition, is there some guidance that is coming
out of the Department of Justice that you are providing to
either EPA or to the Corps?
Mr. Sansonetti. No. What we supply them with is advice on
what they come out with as to what should be guidance. So we
were involved primarily in an advisory role leading up to the
ANPRM that they issued, which also included an addendum that
was dated January 19 or something like that of this year, that
is the latest guidance. So there is a relatively new guidance
issued by the Corps and the EPA as of January of this year. As
I understand it, the Corps is trying to implement that guidance
in each of the regions of the country.
Senator Murkowski. So we are no more specific than just
advisory at this point in time?
Mr. Sansonetti. That is correct.
Senator Murkowski. Mr. Mehan, as far as jurisdiction over
the isolated non-navigable waters, in the view of EPA do you
feel that the States are capable of exercising the authority
over these waters in a manner that protects the environment?
Mr. Mehan. Certainly, my adopted State of Michigan is,
because it is one of the two States that assumed that 404
Program, as well as having its own State program. Other States
are, because of whatever reasons--economic, policy, political
judgments--are not inclined to do that, but all States have the
inherent authority to do it if they are so disposed and their
political process warrants that undertaking.
Senator Murkowski. Mr. Dunlop, I will go back to you, then,
for a second. As I have indicated, the State of Alaska has more
than its share of wetlands. What percentage of the Corps budget
for wetland permitting supports the activities in Alaska? Is it
proportionate to the amount of wetlands that we have?
Mr. Dunlop. Gosh, Senator, that is a good question. Maybe I
will ask my Corps regulatory people if they would have any idea
about that.
[Confers with staff.]
The budget that the Corps has is by workload, rather than
particular acreage of wetlands.
Senator Murkowski. Thank you, Mr. Chairman.
Senator Crapo. Thank you.
Senator Clinton?
OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Clinton. Thank you for calling this important
hearing. I wanted to follow-up on some of the lines of
questioning from both Senator Inhofe and Senator Murkowski
because I think that there is, in addition to the general
concern about not having adequate guidance, questions being
raised about the appropriate role of State regulation and
Federal regulation going forward.
In its comments on the ANPRM, the New York State Department
of Environmental Conservation makes the point that strong
nationwide protection ensures that upstream States cannot
export pollutants to downstream communities. That is a very big
issue for us in New York because the water quality of several
of our essential water resources depends on the actions of
other neighboring States. We border Lakes Erie and Ontario,
Champlain, which I am proud to share with my colleague Senator
Jeffords, the Niagara and Allegheny Rivers, Long Island Sound,
the New York-New Jersey harbor.
Therefore, it is not just a question of what we can do on
our own; what kind of regulations we can pass and enforce in
New York. I appreciate Mr. Mehan's comment that EPA would
prefer to follow ecology and hydrology as far as possible
because, of course, we know that that affects the entire water
quality across our country.
So let me ask both Assistant Administrator Mehan and Deputy
Assistant Secretary Dunlop, as you go forward in trying to
provide clarification, how do you expect to create
circumstances in which there will be protection for ecology and
hydrology across State lines? And what ability or recourse
would downstream States have to ensure that they are not left
cleaning up the pollution of their upstream neighbors? Because
although obviously we know States have a right to protect
waters under federalism, even non-navigable waters, isolated
waters, intermittent streams affect the entire hydrology, which
in turn affects those beyond the borders of the States in which
the waters are located.
So how do you see going forward we are going to provide
that kind of protection for systems that go across State lines?
Mr. Mehan. Senator, I take your question to really
encompass the broader aspects of the Clean Water Act, not just
the 404 Program. I can tell you that we very much already do
everything we can with the authority we have to think broader,
think interstate, think ecologically on watersheds. I think of
the Great Lakes Initiative which was a major regulatory effort
that I was involved in as a State official, now implementing as
a Federal official, to regulate persistent biotoxics for the
whole Great Lakes system because these persistent toxics will
affect the whole system.
In the new CAFO rule that we recently promulgated,
concentrated animal feeding operation, we allow provision there
to allow a regional office on an interstate water where the
water quality standards are impaired to address the question of
whether an AFO should be designated a CAFO and therefore come
within the permitting system. When we set water quality
standards, we generally look at, and this is a controversial
area, what the downstream State is and how protected that is
relative to the upstream State. Sometimes we try to do that
through a collaborative consensual process. We are trying to
work through that on the Arkansas-Oklahoma dispute right now.
So we have many authorities in many areas where we try to
carry out, imperfect although it be, a broader watershed
approach. That is why I said in my opening remarks that the
issue of SWANCC goes beyond 404 for us; that it is a broader
issue and we need to look at it in the context of water quality
standards, of permitting, of oil spill protection, et cetera.
Senator Clinton. I very much appreciate that, Mr. Mehan,
because I think that all authorities will be impacted. We are
acting as though the SWANCC decision and 404 are themselves
isolated provisions that have no larger impact. Of course, we
know that not to be the case. So I very much am pleased to hear
what you said about ecology and hydrology, and the impact
across State lines of a lot of these decisions.
Let me just go on to a related question, because it is one
that I am also very concerned about. It is more intra-State,
but it has the same kind of long-lasting impact. We currently,
as you know, in New York City have nine million residents in
the city and the surrounding suburbs, about half the population
of the entire State, who rely on the New York City watershed as
the source of their drinking water. The Cat-Del system which
supplies about 90 percent of New York City's water supply meets
the filtration avoidance criteria of EPA's surface water
treatment rule, and therefore the city was able to demonstrate
the source water was adequately protected, would remain so, and
as a result EPA has issued a filtration avoidance determination
for the watershed.
Now, the New York City Department of Environmental
Protection estimates that over 3,700 acres of vegetated
wetlands and ponds, 15 percent of those in the New York City
watershed, could be affected by the proposals suggested by the
Administration's ANPRM. Obviously, that is a very serious
issues, as are the fact that we have over 60 wastewater
treatment plants that discharge into the intermittent streams
in the watershed. Those treatment plants might no longer be
required to operate under a Clean Water Act discharge permit if
the Administration makes the contemplated changes to the Clean
Water Act that are at least suggested in the proposed rule.
So I am looking for assurance from both EPA and the Corps
that the residents of New York City and our surrounding
communities that now could drink this relatively pure water
from our watershed will not be in danger by removing these
waters from the Clean Water Act's jurisdiction or adversely
affected under any rulemaking put forward by the
Administration.
Mr. Mehan and then Mr. Dunlop.
Mr. Mehan. Senator, if I might just demur a bit from your
characterization of the ANPRM, there was not a signal there to
do any particular substantive rulemaking. I think it was an
invitation for a dialog so we could try to explore collectively
with the broader community what did SWANCC mean and what were
its impacts. So again, as I said in my opening remarks, we have
no pre-judged or pre-ordained an outcome here.
I can tell you that again we want to look at the comments,
and look at the State of New York's in particular, along with
our other State partners. Again, there may be some legitimate
confusion here that we can clarify through guidance. It may be
that if there is a hydrologic connection that people do not
realize through groundwater that you really, again, we have to
come to some understanding on this. Some of these things we
might be able to come to an agreement without a rulemaking;
some things may be presenting more daunting prospects.
It is hard for me to give you a definitive answer, partly
as a midwesterner my New York geography is somewhat deficient,
much less understanding the hydrology there, but we intend to
look at it to the extent that the law allows us to assure the
fullest protection under the Clean Water Act and the Safe
Drinking Water Act for what is literally a wonderful program in
New York with that filtration avoidance effort.
Senator Clinton. We would be glad to have you come visit. I
would love to show you.
Mr. Mehan. I look forward to that.
Senator Clinton. Thank you, Mr. Mehan.
Mr. Dunlop. Yes, ma'am, from the perspective of the Army
and the Corps of Engineers, of course our jurisdiction does not
go broadly, as Mr. Mehan was discussing and as you have been
elaborating about your concerns and interests there. It goes
more specifically to the dredge and fill issues that result.
And of course, as I have described earlier, our whole program,
the whole 404 regulatory program is designed to fulfill the
aspirations of the Clean Water Act to make sure that if any
impact is made, that there is mitigation so that the
functionalities that exist are not impaired and all the rest.
So we would certainly be in that same perspective about the
watershed concerns that you have expressed, to make sure that
if there is any impact from any development or any persons or
government's use of their property, that it would be adequately
mitigated.
Senator Clinton. Thank you.
Senator Crapo. Senator Jeffords, did you have a comment?
Senator Jeffords. In the interests of clarifying my
comments relating to the recent EPA reports on Clean Water Act
enforcement, I ask unanimous consent that the full reports be
submitted and be made a part of the record.
Senator Crapo. Without objection, so ordered.
[The referenced documents follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Senator Crapo. I should announce to the folks here that we
have been informed that we are going to have a vote at 11:30
a.m., which means in about 5 or 6 minutes, if it occurs as they
have projected it. So what I am going to do is continue the
questioning of this panel for that five or 6 minutes, and then
we will come back after the vote and begin the third panel. If
there are no senators here to switch off, then what we will
probably do is just recess for a short time. I think it is only
one vote, and go over and vote and come back, and then resume
the panel.
In the few minutes that I have to go back into questioning,
I would like to talk for a moment about some of the difficulty
we are facing with regard to getting a handle on what is coming
out from the Agencies as to how we are administering the
wetlands program. Mr. Dunlop, I have a copy of a Powerpoint
presentation that the Jacksonville District of the Corps is
giving on the SWANCC decision and the advance notice of
proposed rulemaking. Are you familiar with that document?
Mr. Dunlop. No, sir, I am not.
Senator Crapo. Basically what it does is go through a
number of the issues to try to explain to folks. I assume it is
a presentation to try to help people who are dealing with the
issue to understand where we are today.
Mr. Dunlop. Yes, sir.
Senator Crapo. Just to give you a couple of examples, on
the section entitled ``adjacent waters,'' it has a little duck
talking to explain the circumstances. It is talking about the
fact that the Supreme Court has not defined the term
``adjacent'' or whether the basis for adjacency is geographic
proximity or hydrology. Then it goes on to talk about the fact
that wetlands are jurisdictional only if they are adjacent to
navigable waters, and describes the fact that the Corps defines
``adjacent'' as bordering, contiguous or neighboring, and has a
little map showing that this could be many different things. In
fact, it says that there is no fixed distance that may be
required.
The ultimate conclusion of the section on adjacency is that
there isn't even a definition of where the measuring point
starts, so we don't know where the measuring point starts for
what is adjacent; we don't know what distance we are talking
about in terms of bordering, contiguous or neighboring. And the
little duck says, ``Adjacent is what I say it is.'' It seems to
me that that is about the kind of clarity that we have in the
advance notice of rulemaking and the status of where we are
right now. I just wanted to ask you if you feel that this is
the way that we should be approaching the definition of what it
is that we are getting at under Section 404 of the Clean Water
Act?
Mr. Dunlop. Well, sir, I think that the process that we
have is the appropriate process. As we discussed earlier,
another option would be just to not do anything and let the
courts litigate these matters and come up with all these
disparate decisions, and maybe that would provide enough
guidance. That could take years and be totally unsatisfactory.
The other approach could be that maybe a bunch of smart
guys like us could sit around in our various agencies and we
could think up very specific definitions for all these matters
and send them forth top-down from Washington and decree all
these things under the authorities we have. The third option is
to go out to the public and say, gosh, there are a lot of
things to think about here, just as you have described. Can
you, Mr. and Mrs. America and people who have a demonstrated
interest in these things, inform the policy process?
That is what the ANPRM asked them to do, Would you inform
this process? Then ultimately, the obligation does reside, if
we go through a rulemaking, for those people in the executive
branch in effect to legislate through rulemaking, or there may
be other ways that legislation entails through the legislative
branch. The point is that this process of collecting
information and data and comments from a broad range of the
American people seems to us to be the most prudent and best way
to bring all these matters to conclusion.
Senator Crapo. So you are telling me that as the matter
does come to conclusion, we should seek to get some clarity on
matters as to the definition, for example, of what ``adjacent
waters'' means?
Mr. Dunlop. Yes, sir.
Senator Crapo. And that when we are at that point of the
conclusion, we should have clarity in these definitions?
Mr. Dunlop. Yes, sir. I think that is fundamental to the
rule of law.
Senator Crapo. I would certainly agree. One of the reasons
that we are having this hearing is to try to figure out whether
and if so and in what way Congress needs to weigh in on this
issue. Obviously, there already has been a piece of legislation
introduced to deal with it in one context. I am sure there are
a lot of ideas about how that should be done.
Do you have any idea, or can you give me a projection as to
when the rule would be proposed and be made available?
Mr. Dunlop. The reason that it is very complicated to give
a reasonable projection is because of the enormous number of
comments that have arrived, as Mr. Mehan was describing, and
our sincere interest in parsing these comments in a way that
will have legitimacy in terms of fully considering all these
matters. I think we tend to be biased to action at the Army,
and we would like to move sooner than later.
Senator Crapo. So maybe next week?
Mr. Dunlop. No.
[Laughter.]
Mr. Dunlop. But I don't know that we have even done more
than open all those 133,000 envelopes yet. But as we delve into
these matters, we will move with dispatch. It is certainly our
intent to move with dispatch.
Senator Crapo. You do not have a projected time line?
Mr. Dunlop. No.
Senator Crapo. I just want to conclude with one further
observation, and if any of you would like to comment on what I
am going to go through here, you are certainly welcome to. Just
to show an example of the breadth of what we seem to be dealing
with here in terms of the previous interpretation of the Clean
Water Act, I have a copy of a water discharge permit for the
San Diego area. In this document, it defines what are the
waters of the United States. This as previously, and I realize
we are in kind of a confused state right now as to what we are
talking about. But in here, it says, as has been stated
previously in some of the testimony and some of the questions,
that a municipal separate storm sewer system is considered to
be a part of the waters of the United States.
Then when you look at the definition of what that storm
system is, I mean, a municipal separate storm sewer system
includes a whole bunch of things. It is a lot of small print
here. But one of the things it includes is everything,
including roads with drainage systems, municipal streets, catch
basins, curbs, gutters, ditches, natural drainage features or
channels, modified natural channels, manmade channels, or storm
drains. We are talking about regulating under Section 404, if
it were done the previous way we were approaching it,
regulating gutters in streets.
The question I have as I approach all of this is, as we try
to make sense out of the SWANCC decision and where we go from
here, is whether we intended that under the Clean Water Act in
the first place, and regardless of whether we intended it then
or not, what the sensible approach to regulating the wetlands
of the United States should be.
It seems to me that we are getting pretty far out there as
we start talking about regulating gutters in streets, as
opposed to truly focusing on the wetlands with a regulatory
regime. I go back to my earlier comments about the number of
other Federal statutes that are at play here.
I realize that I am just making a statement, but if any of
you would like to comment on that before we wrap up, I assume
those bells were the votes. Before I toss it to the panel,
maybe I should see if the Chairman or anyone else does.
I will tell you what. Let's do this. The Chairman wants to
ask one question of one of the panelists on the next panel.
Senator Inhofe. They can go ahead and respond to this,
because we have 10 more minutes; 15 probably.
Senator Crapo. OK. If any of the members of this panel
would like to respond to my comments, very briefly, you may.
Mr. Mehan. Just again, I think your question is evidence of
the difficulty of sorting out the 404 issues from the whole
Clean Water Act, since stormwater is regulated in fact in many
circumstances as a point source under the Clean Water Act. We
have hundreds of thousands of general permits regulating those,
and CSOs.
Senator Crapo. So it is not as though it is not already
regulated.
Mr. Mehan. Yes, and it is, and then the watersheds. So in
other words, there may be cases where 404 jurisdiction has been
extended beyond what the science or the law allows. I don't
think that the stormwater example is a posit, because you are
essentially talking about things all within the same watershed
and that have a hydrological connection.
Senator Crapo. Good point.
We would like to thank this panel for your attention to
this issue and for coming here today. You are excused.
Mr. Dunlop. Thank you for all your courtesy, Senator.
Senator Crapo. Thank you.
We would like to invite the next panel to come up. What we
are going to do is get you seated. We are not even going to let
you make your opening statements yet. Senator Inhofe is going
to ask a question or two of one witness, and then we will
recess.
Senator Inhofe. Thank you. I appreciate that.
Senator Crapo. While the next panel is coming up, I will
introduce them. First is Michael Bogert, who is Counsel for the
Governor of Idaho, a good friend of mine. Michael, welcome
here. Next is Richard Hamann, Associate in Law at the
University of Florida; Robert J. Pierce, President of Wetlands
Science Application, Inc.; and Scott Yaich, who is the Director
of Conservation Programs at Ducks Unlimited.
Scott, you are the lucky guy that the Chairman wants to ask
a question or two of before we break and run to the vote.
Senator Inhofe. Mr. Chairman, I appreciate that. That is
very accommodating. As you know, we have some commitments where
I won't be able to come back.
Mr. Yaich, I just want to get this thing on the record and
get clarified in my own mind the position Ducks Unlimited. I
was in shock when I saw you were going to be here testifying in
the testimony that you had. Apparently, Ducks Unlimited has
changed considerably in the last few years since my son has
been president of a local chapter and all my kids are very
active members. I have also been. I did not realize you are
taking the positions that you are taking.
Now, in the case of let's just say my neighboring State of
Arkansas, where a lot of us go over there and hunt. We have
very cooperative farmers over there. They are rice farmers and
they flood their fields, which they have to do. But in order to
accommodate the hunters, they leave the fields flooded so they
can come in and hunt on their fields.
Now, I would have to ask the question, and maybe the
question should go to Mr. Hamann, if the drainage ditches on
rice farms were considered jurisdictional, would the farmer
need a permit before discharging any water containing
pollutants? Let's see, let's do that for Mr. Hamann. Would you
have any thoughts on that?
Mr. Hamann. If they were jurisdictional, yes, it would
require permits. But there is an exclusion for prior converted
cropland, and there is an interpretation of wetlands that
excludes areas that are allowed to go fallow for some period of
time, or that are used in the production process. I think rice
fields fall within that exclusion.
Senator Inhofe. Of course, when they have to come and drain
them after this period of time, whatever that is, after the
season is over, and there are pollutants at that point that go
in, which could come from waste from ducks or from any number
of things, could that put at risk a farmer in terms of what he
might have of any types of remedies?
Mr. Hamann. Well, actually Congress has created an
exclusion from the discharge definition for irrigation return
flows and drainage from agricultural lands, which has actually
caused quite a few problems, for example, in Florida, where
drainage from sugar cane fields is polluting the Everglades and
it is not regulated under the Clean Water Act. So the rice
farmers are basically exempt.
Senator Inhofe. Except that that regulation is for the
purpose of irrigation. If they leave it irrigated for the other
purposes, are you certain that that would not be considered a
problem or exposure for that farmer?
Mr. Hamann. The 11th Circuit recently held that there was
no jurisdiction over those discharges in the case of drainage
from sugar cane areas, which is not irrigation water either.
The case is Fisherman Against Destruction of the Environment v.
Closter Farms, 300 F. 3d 1294 (11th Cir. 2002).
Senator Inhofe. Mr. Yaich, then you don't think there would
be any reluctance on behalf of some of the farmers with this
interpretation to allow people to come in and use that
property? Is that your feeling?
Mr. Yaich. Yes, there has not been that reluctance.
Senator Inhofe. I am sorry?
Mr. Yaich. There has not been that reluctance.
Senator Inhofe. Well, but this is all fairly new. I mean,
we are talking about now with the changes that we are
contemplating and that are contemplated under some pending
legislation. But you have answered my question and I appreciate
it very much. Thank you.
And Mr. Chairman, thank you for allowing me to ask those
questions before the next vote.
Senator Crapo. Thank you.
Now that you have gotten seated and we have had a little
bit of questioning, we will go vote and go into recess. We will
be back as soon as we can. Thank you.
[Recess.]
Senator Crapo. The hearing will come to order. I appreciate
everybody's patience. I have been informed that they are going
to call another vote at 12:15 p.m., which is 20 minutes from
now. So if you guys all stick to your 5 minutes, we might make
it at least through your testimony.
Let's start out. Mr. Bogert?
STATEMENT OF L. MICHAEL BOGERT, COUNSEL, GOVERNOR OF IDAHO
Mr. Bogert. Mr. Chairman, thank you for the invitation to
speak to the committee today. My name is Michael Bogert. I am
Counsel to Governor Kempthorne. Unfortunately, the Governor
could not join the committee today, but he asked me to extend
his warmest regards to yourself and the other members of the
committee.
Mr. Chairman and members, I appreciate the opportunity to
give you and the distinguished Senators Governor Kempthorne's
perspective on the SWANCC decision and what it means to our
great State of Idaho.
As an initial matter, Idaho is mindful that Section 101 of
the Clean Water Act declares that it is the policy of Congress
to recognize, preserve and protect the primary responsibilities
and rights of States to prevent, reduce and eliminate pollution
and to plan the development and use of land and water
resources.
Mr. Chairman, we are very comforted that Congress has
enacted a statute that has the words ``rights of States'' in
them, and that is the context by which we view the discussion
this morning. This statutory declaration for Idaho is the
ideological lens by which we will view any attention by
Congress to the Clean Water Act in the aftermath of SWANCC.
However, we would be remiss if we did not acknowledge how
much we appreciate the chance to even offer the State's
perspective on this important decision by the Supreme Court to
the committee today, as well as to the Federal executive branch
agencies wrestling with this complex issue.
Through the advance notice of proposed rulemaking, or the
ANPRM, which has been of much discussion this morning, we
believe the President has signaled he is approaching this
problem from a decidedly different direction. Through the
ANPRM, the Bush Administration has stated that it does not have
all the answers up front, but it wants to be sure to ask all
the right questions early. Mr. Chairman, a little bit of
humility from the Federal Government in this regard is greatly
appreciated by our State.
The Administration is also saying that it is keenly aware
that the SWANCC decision will have an impact on key partners
such as the States in Clean Water Act implementation, and that
even before a proposed rule is in order, the Federal agencies
want an idea of what looms on the horizons for its
administrative decisionmaking. Governor Kempthorne appreciates
this approach taken by the President. I have submitted the
Governor's very brief comments on the ANPRM for purposes of
today's record.
To provide the committee with some very brief background,
and as noted in our comments, Idaho does not presently
administer a delegated Clean Water Act program under Section
402 for NPDES permits. We are presently exploring whether an
NPDES program makes sense for our State and if so, as of this
moment, Idaho is not a participant in this familiar model of
cooperative federalism. But that does not mean that we are not
accomplished practitioners in Idaho of both cooperation and
federalism.
Addressing cooperation, just last week the Governor forged
a second agreement in 3 years with the region's Governors on
salmon recovery, and in this past legislative session in Boise,
we paved the way under our law for Federal-State wolf
management. So Mr. Chairman, as you are well aware, Governor
Kempthorne's model very much is cooperation with the Federal
Government.
We are also pleased to hear today from the Assistant
Attorney General that the Justice Department shares the values
of partnering with the States to advance our mutual interests
on environmental protection. Of course, on the federalism side,
you will have no greater champion for States' rights than
Governor Kempthorne.
Indeed, one of the core values we bring to this debate is
that the best achievable results in environmental regulation
occur where the Federal Government not just joins, but partners
with State and local decisionmakers to avoid the consequences
of top-down regulation.
Mr. Chairman, as the committee and Congress deliberate over
its response to the SWANCC decision, we think that it is
important to have a better understanding of the backdrop of the
case, and I will briefly describe why the Supreme Court ended
up granting certiorari in the first place.
As has been discussed, the petitioner was a coalition of
municipalities and they had been trying to secure a permit for
a hazardous landfill during a time period beginning from the
mid-1980's. They purchased a 533-acre site which once
accommodated gravel and strip mining. They worked on this
process, and they had received all the State and local zoning
permits, in addition to a landfill development permit from the
Illinois EPA, as well as passing review by the appropriate
State Department of Conservation.
Mr. Chairman, in the brief that the petitioners filed in
the Supreme Court, they describe at length the mitigation
process and the negotiations that they entered into. I commend
this brief to the members of the committee and the Chair as an
important component of this statement.
Senator Crapo. Mr. Bogert, could you make a copy of that
brief available for the record?
Mr. Bogert. I would be pleased to do so, Mr. Chairman.xxx
Senator Crapo. Thank you.
Mr. Bogert. The petitioners asked the Army Corps of
Engineers not once but on two separate occasions within a
year's period whether the court had jurisdiction over this
site. Each time, in successive occasions, the court responded
it did not have jurisdiction over the landfill.
But after being alerted by an environmental organization
that the site may have been briefly home to some migratory
birds, the Corps changed its mind, and as we all know, it
invoked the Migratory Bird Rule, which by the way is neither a
rule and barely deals with migratory birds, but that is for
another moment, Mr. Chairman.
Along the way, in addition to making its 404 permit
applications, SWANCC obtains two separate water quality permits
under Section 401 of the Clean Water Act, and then submitted
their permit twice on two separate occasions, and both times
the court ended up denying the permit. Probably believing that
this was too much government, SWANCC decided to take their case
all the way to the Supreme Court. There is no question that
that fact circumstance was probably influential in the Court
hearing the case in the first instance.
Mr. Chairman and distinguished Senators, as you consider
this issue it is vitally important that the past sins of the
Federal Government in this context that I have just described
not be borne on your progeny. The Governor would advise that
the Congress exercise its Commerce Clause authority carefully,
and ask if the answer really is extending the jurisdiction of
the Federal Government to the curbs and gutters of our streets,
as we have just described in the city of San Diego. We in Idaho
do not think that is necessarily the best path forward.
The other question also that lingers in our mind is if the
Army Corps has the appropriate resources to deal with streets
and gutters and ponds with birds in them. But it is vitally
important that Congress consider what the Supreme Court
actually said in SWANCC.
One argument that we have heard today is that SWANCC was
merely a regulatory interpretation case and that it is holding
should be narrowly construed by the Agencies and Congress. But
Mr. Chairman, the Supreme Court went out of its way in SWANCC
to dust off its two major Commerce Clause cases, Lopez and
Morrison, and indicated that by a hair's breadth, this decision
could have very well gone in that direction as well.
As Congress looks at how to deal with SWANCC, we would ask
that the members be mindful of the Court's current Commerce
Clause jurisprudence that lurks just closely nearby. From our
vantage point in the Governor's office in Boise, the lessons of
Lopez, Morrison and SWANCC are not that Congress necessarily
cares more than the States do about guns in school, violence
against women, or water pollution in general.
Rather, Governor Kempthorne would submit to his former
colleagues that real achievement in addressing these noble
policy goals should include those in the framework of our
Federal system of government who bring the most promise to
achieving results. In our view, Mr. Chairman as you well know,
those achievers are States such as Idaho.
Thank you, Mr. Chairman, for my time this morning. I
appreciate being here.
Senator Crapo. Thank you very much, Mr. Bogert. As I
mentioned briefly before, but I should have introduced you a
little better. Mr. Bogert is a good friend of mine, a good
friend and supporter of Idaho and our great Governor, Governor
Kempthorne, and we thank you for being here.
Mr. Hamann?
STATEMENT OF RICHARD HAMANN, ASSOCIATE IN LAW, UNIVERSITY OF
FLORIDA
Mr. Hamann. Thank you, Chairman Crapo. I thank you for the
opportunity to speak with you today about the decision in
SWANCC and how it can be reconciled with the goals of the Clean
Water Act. I have submitted written testimony and would ask
that that be accepted into the record.
Senator Crapo. The testimony of all witnesses will be
accepted in the record.
Mr. Hamann. SWANCC was a significant setback to the
progress we have made as a Nation in protecting and restoring
our water. It affects not only the protection of wetlands from
dredging and filling, but the discharge of oil, toxics and
conventional pollutants. It is critically important in a State
like Florida where many of our most important wetlands and
surface waters are not directly connected to navigable waters.
Although Florida does regulate these so-called isolated waters,
Federal regulation is an important backstop and supplement. I
think that has been the opinion of most of the other States
that apparently have commented on this issue. Furthermore, the
rivers in North Florida come from Georgia and Alabama, where
there are no protections for isolated waters, and much of our
wildlife travels across State lines.
The value of wetlands and the vulnerability of our waters
are not defined by the traditional concepts of navigability. I
believe that is why, although Congress used the term
``navigable waters,'' it defined it as ``waters of the United
States''. I believe the majority opinion in SWANCC gave
inadequate weight to that definition, to the intent of the
Clean Water Act, to its legislative history and its structure.
I think it failed to give deference to the views of the expert
Federal agencies, their ecological judgment, and it suggests
the possibility at least of extreme new limits on Federal
authority to regulate our Nation's waters based on concepts of
limitations of the Commerce Clause and federalism. But it
didn't do it. The actual holding of the case is much more
limited. It held that the rule, as clarified and applied to the
site, pursuant to the Migratory Bird Rule, exceeds the
authority granted to respondents under the Clean Water Act.
So the issue before the agencies and Congress is how to
respond. The initial response of the agencies was to confine
the case to its specific holding. Most of the lower courts have
been doing that also, and the Department of Justice has been
consistently arguing that position in litigation. This has
significant advantages. There is at least the possibility that
the Supreme Court will not extend this case beyond its specific
holding.
In that case, the regulatory definition of ``waters'' will
have been weakened, but not critically. It will have been
reduced, but not as significantly as it could be. I think it is
important to retain that definition and related definitions
such as ``adjacent'' because they have been tested and
sustained and applied and used by people in the field for many
years. On that basis, for those reasons I think it is premature
to substantially revise it administratively.
Congress could settle the issue relatively easily by simply
removing this term ``navigable'' from the statute, and
clarifying what the intent was. I think that would probably be
the ideal solution. The constitutional issues would remain, of
course, but it seems clear to me that the record would support
the conclusion that the discharge of pollutants is an economic
activity, and that interstate commerce depends on clean water,
controlling floodwaters, the existence of wildlife, and other
resource values that can be affected by the discharge of
pollutants.
There is at least the possibility of the agencies modifying
the definitions to strengthen Clean Water Act jurisdiction.
They could eliminate, for example, the need to show that the
degradation of a particular water affects interstate commerce,
and base their jurisdiction on the fact that dredging and
filling is an economic activity that in the aggregate
substantially affects interstate commerce. The current
definition draws this need into the definition of those other
waters which are subject to regulation.
The agencies could clarify that tributaries include any
system of artificial or natural streams, ditches, drains,
swales, arroyos, aquifers, or other drainage features that are
reasonably likely to convey water to navigable waters. Senator
Crapo, you raised the issue earlier of the storm drains. There
is a case from Florida that I cited in my written testimony,
Eidsen, where a gentleman was dumping toxic sludge into storm
drains that were then flowing into other waters. There was no
jurisdiction under the Clean Water Act except for the fact that
he was discharging to ``navigable waters''. They were able to
bring an enforcement action against him based upon those
definitions.
The agencies could expand or clarify the definition of
``navigable waters.'' It should include waters that are used or
susceptible of being used for recreational purposes. Perhaps
there is an opportunity to defer to States, many of which
utilize a broader definition of what ``navigable waters'' means
than you see in the Federal definition. They could define the
concept of ``adjacency'' to ensure that any waters that bear a
significant ecological relationship to navigable waters are
regulated. The case law and the developing jurisprudence
supports these definitions, and it may be better to let that
play out a little bit further, and then go into a regulatory
mode.
Thank you, Mr. Chairman.
Senator Crapo. Thank you, Mr. Hamann.
Dr. Yaich?
STATEMENT OF SCOTT YAICH, DIRECTOR OF CONSERVATION PROGRAMS,
DUCKS UNLIMITED
Mr. Yaich. Thank you, Mr. Chairman.
My name is Scott Yaich and I am the Director of
Conservation Programs at Ducks Unlimited's national
headquarters in Memphis.
I appreciate the opportunity to speak with you today on
behalf of DU and our more than one million supporters. Our
mission is to conserve, restore and manage wetland and
associated habitats for North America's waterfowl and for the
benefit they provide other wildlife and the people who enjoy
and value them. We are a science-based conservation
organization, so our perspectives on the issue of this hearing
are grounded in the water-related sciences that we believe
provide useful insights.
Of the original 221 million acres of wetlands in the U.S.,
53 percent were lost by 1997. DU has long worked with voluntary
incentive-based conservation programs such as those provided
through the farm bill's conservation titles, and the North
American Wetlands Conservation Act. With our many private and
public partners, we have conserved almost 11 million acres.
Despite our successes and those of many others, the Nation
still loses over 100,000 acres of wetlands annually, which has
a cumulative negative impact on waterfowl and on the Nation's
water quality and related Federal interests.
I can use the wetlands of the Prairie Pothole Region, which
you see in this photograph here, the prototypical
geographically isolated wetland, to illustrate our concerns. Of
the 20 million potholes that once existed in the northern U.S.,
only about 7 million remain. Almost all of these wetlands are
small, but the region is the most important duck breeding area
in North America. One analysis suggested that duck production
would decline by over 70 percent if all wetlands less than one
acre were lost. Waterfowl are a valuable interstate resource
and wetland losses far less than this would greatly impact
waterfowl numbers and could result in closed waterfowl seasons
with related impacts on the almost 3 million duck and migratory
bird hunters who in 2001 spent $1.4 billion for hunting-related
goods and services. Thus, DU and other sportsmen's
organizations are very concerned about the potential impacts of
any change that would lessen jurisdictional coverage of
wetlands such as these.
The Supreme Court's SWANCC decision invalidated one facet
of the so-called Migratory Bird Rule as the sole basis for
determining jurisdictional wetlands. This has led to
uncertainty regarding Clean Water Act jurisdiction. However, in
their SWANCC decision, the Court explicitly reaffirmed
jurisdiction over navigable waters, their tributaries, and
adjacent wetlands, and re-stated their observation in the U.S.
v. Riverside Bayview Homes decision that, quote, ``Congress'
concern for the protection of water quality and aquatic
ecosystems indicated its intent to regulate wetlands
inseparably bound up with the waters of the U.S.,'' further
clarifying that, ``It was the significant nexus between the
wetlands and navigable waters that informed our reading of the
Clean Water Act in Riverside Bayview Homes.'' With these
statements, the Court clearly viewed connection between
wetlands and navigable waters as a critical determinant for
Federal jurisdiction.
In light of SWANCC, focus must be placed on the definitions
of ``adjacent'' and ``significant nexus'' for assessing the
relationship between geographically isolated wetlands and
navigable waters. The Court implicitly recognized wetland
function as an essential element of proximity in Federal
jurisdiction, and accepted that adjacency presumes functional
connections between wetlands and navigable waters.
In light of the Court's use of these terms, it could be so
to integrate them into the single concept of functional
adjacency. Adjacency from a scientific standpoint cannot be
viewed as being limited to physical proximity. To fulfill the
Clean Water Act, there should be recognition of the direct
functional connections of water and wetlands, groundwater, and
flowing navigable waters.
Well-known wetland functions such as surface water storage
and flood abatement, groundwater recharge, and water quality
maintenance have significant values. For example, New York City
initiated a $250 million program to protect up to 350,000 acres
of wetlands in the Catskills to protect the quality of its
water supply as an alternative to spending $6 billion to $8
billion constructing water treatment plants. Boston is
acquiring 5,000 acres of wetlands in the Charles River
watershed, rather than constructing a $100 million flood
control dam. The Corps of Engineers determined that flood
damages there would increase by $17 million per year if the
8,400 acres of wetlands in the Charles River basin were
drained, a wetland functional relationship was vividly
illustrated in the Midwest floods of the 1990's.
If functional linkages between wetlands and navigable
waters are recognized when defining ``adjacency'' and
``significant nexus,'' the Clean Water Act could contribute to
achieving President Bush's goal of no net loss. However, if
these terms are not defined in the hydrologic context, there
will be significant negative impacts to wetlands and waterfowl
populations. While DU strongly supports the use of incentive-
based programs for wetland conservation, they are unlikely to
be funded at levels sufficient to offset potential wetland
losses.
We agree that clarification of jurisdictional wetlands and
waters is important and overdue, and we believe that it should
be rooted in science that can be expeditiously provided through
administrative guidance processes. This could at least restore
the level of wetlands protection that existed prior to SWANCC.
In any case, any changes to the Act or its administration
should only be undertaken if they strengthen protection of the
Nation's wetlands.
We appreciate this opportunity to present our views on an
issue that is so central to our mission.
Senator Crapo. Thank you, Dr. Yaich.
Mr. Pierce?
STATEMENT OF ROBERT J. PIERCE, PRESIDENT, WETLANDS SCIENCE
APPLICATIONS INC.
Mr. Pierce. Thank you, Mr. Chairman.
With the concept that a picture is worth 1,000 words, what
I would like to do, and I believe you have a set of color
copies of these up there, is run through a quick slide
presentation.
For 30 years now, the Federal Government has been educating
the public on what are wetlands and waters of the U.S., why
they should be protected, and their value to society. Normally,
they depict areas with standing water on them, lush vegetation,
waterfowl, and wading birds. From the time of our earliest
youth, in fact, people are indoctrinated that they should view
wetlands as being in many cases exotic vegetation such as bald
cypress, beavers, ducks, and plenty of standing water.
If we go to the Corps' web sites today, we will find
pictures like this of what the Corps considers to be wetlands.
If we go to the regulated public, though, what we see is a
vastly different thing. This is a shot from Maryland of a
regulated wetland. This is a shot from New Mexico of a
regulated wetland. This is a shot from California that the
Department of Justice says is a regulated wetland. It is loaded
with non-wetland plants; does not have hydric soils. It is
loaded with ground squirrel burrows and, if you are wondering,
ground squirrels do not have webbed feet.
This is what the Corps shows on its Web site as being the
waters of the U.S. that need to be regulated, the navigable
waters. Here is another shot from a Corps web site. These are
the things that are actually being regulated today. This is
right over in Potomac, Maryland. On the left you can see the
headwaters of this navigable water. It is Glenn Road, about 60
feet up above that culvert. If we look downstream toward the
natural stream, there is a ditch that flows on through.
This was about 2 weeks after a 24-inch snowfall, and you
can see that there is no water, even with snow melt occurring
in this picture. But that is a navigable water regulated by the
Corps of Engineers.
These, too, are regulated ponds. They are actually
constructed animal waste ponds that have been abandoned. They
are in California. The one on the top has no vegetation. It is
still considered a wetland by the Corps. The reason they are
regulated is because they are approximately 100 feet from, not
connected to, but 100 feet from this navigable water, which is
a ditch. That navigable water in fact has been terminated down-
slope of the property because the Corps in another case said it
was not regulated, and it was filled. So there is no actual
connection, and yet those two ponds are jurisdictional today
under the Clean Water Act.
Here is the Estrella Fan in Maricopa County, Arizona. This
is a regulated navigable water. In the last 9 years, there has
only been a total of 9.5 hours of flow in Estrella Fan. That is
.4 events per year. In fact, there has only been four times
that it has flowed in the last 4 years; 99.9 percent of the
time it is dry. The four events that did occur never reached
the Gila River, let alone the Colorado River which is a
navigable water, which gets to the point of water crossing
States. There are many systems where the water will never reach
another State. There are systems where it will, but that is
something that needs to be taken into account and is not.
Here is a regulated navigable water in Hemet, California.
No gutters on this road, but we have roadside ditches. The
ditches are considered navigable because the Corps says that
they will intercept water that would otherwise be regulated. So
the ditches become regulated.
Here is a regulated navigable water in Washington, DC. It
was 70-feet long. The headwaters of that is a parking lot, and
it was composed of rubble. It was the drainage from that
parking lot. It took the Corps of Engineers' headquarters to
come out and convince the Baltimore District that that it
should not be regulated as a navigable water.
Here is a navigable water in Nogales, Arizona. The
difference between this and many of the roads that occur in the
desert part of the U.S. is infinitesimal.
Now, one of the issues that needs to be addressed is the
concept of ordinary high water mark. Here are three shots, one
from Maryland, California and Idaho. The definition that the
Corps now uses for ``ordinary high water mark,'' part of it
says, ``a clear natural line impressed on the bank.'' If you
notice in each of these, there are multiple lines clearly
impressed by water on the bank. Which is the natural one? The
Corps would regulated to the maximum extent out at the bank in
each of those cases. The courts have said, however, that the
ordinary high water mark is defined by something less than a 1-
year flow.
Another statement in the Corps' regulations, ``in the
absence of wetlands, the upstream limit of Corps jurisdiction
also stops when the ordinary high water mark is no longer
perceptible.'' In California, the South Pacific Division ruled
that, ``I conclude that a District's policy position that a
tributary connection can exist in the absence of a continuous
ordinary high water mark is reasonable.''
This is a navigable water in Eastern California, another
shot of a regulated water in Eastern California. The deposition
of the mud is what makes it constitute an ordinary high-water
mark--no bed and bank--simply a little bit of mud from a 10-
year flood event.
The question then, is, how far does adjacency go? Here is a
shot of vernal pools in Northern California. We see a stream
going down through the center of this. The question is, is it
connected? By groundwater, probably not; there is not enough
rainfall to flood these things and have it connected by
groundwater.
Here is a situation in Galveston, Texas. In the south-
central part of the United States, many Corps' districts
regulate everything within the 100-year flood plain. The two
areas marked in ``A'' are 100-year flood plains, so any
isolated water body would be regulated there.
This is sheet flow in Maryland. The Migratory Bird Rule has
may have been vacated by SWANCC, but it has been replaced by
the ``Migratory Molecule Rule.'' The Corps is now regulating
when they say, ``follow the drop of water.'' If it is
theoretically possible for a drop of water to reach an area, a
navigable water, then it should be regulated.
Why only stop at something that has certain plants? This is
a wheat field. The water is going to get there and potentially
pollute.
This slide is from that same set that you referred to
earlier. I think it sums it all up. That is a Corps of
Engineers slide, and they have as many questions as the public
does on what is jurisdictional.
In conclusion, inconsistencies abound within the Corps
Districts themselves and between different Corps Districts.
Many definitions are not codified. They are simply put into the
nationwide permit program. Ditches, ephemeral drains, waste
ponds, ephemeral wet spots are not navigable waters. The Corps
determined that in 1974 and issued a legal opinion on that.
Chief Justice Rehnquist reiterated that in his opinion, and
rulemaking is essential to clarify this for both the Corps
regulators and the public.
Senator Crapo. Thank you very much, Mr. Pierce.
As you may have heard, a vote has been called. It is
beginning to look like this may not be just a single vote, but
we may be in a series of this kind of thing. So what I am going
to do is to wrap up with a couple of conclusions. I am not even
going to ask any of you any questions because I just don't have
time.
I apologize for that, because anybody who listened to the
testimony here could tell there are a lot of interesting and
important things we need to get into. I am going to submit and
give other members of the committee opportunities to submit to
you written questions which we would have asked had we had
time. And I do want to invite you respond fully to those
questions, and encourage you to give us further submissions in
this context.
It seems to me from the evidence and the testimony that we
have taken today that we are very clearly at a point when we
need to make a policy decision here in Congress. That policy
decision I don't believe is whether we will seek to protect the
wetlands of the United States. At least for myself, I am fully
committed to that, and I think that every member of the
Congress is fully committed to that, as are the American
people.
I happen to serve as the Chairman of the Forestry,
Conservation and Rural Development Committee in the Agriculture
Committee, where we put together a lot of the incentive
programs that we have, like the Wetlands Reserve Program, the
CRP Program and the like. As a result of that, I am very
committed and aware of the different approaches that we have to
protecting our wetlands. I can't remember if it was Mr. Hamann
or Dr. Yaich who said that the incentive approach was great,
but maybe not necessarily sufficient to accomplish the
protection of our wetlands, which I agree with.
The point I am getting at here is that we need to determine
how we are going to approach the broad policy decision of how
we will protect wetlands in the United States, both in terms of
what types of and what correlations of Federal statutes are
needed, and what relationship we have with the States in terms
of the partnership that we need, in terms of protecting and
managing the waters of the United States.
To me, any further comments that you might be interested in
making in that context in your written submissions would be
deeply appreciated. As I said, we will be issuing you written
questions, which I encourage you to respond to fully as well.
I again want to apologize to you for the fact that because
of the voting schedule, we are not going to be get into the
usual give and take of the question and answer period. But I do
want to assure you that your written testimony is going to be
very carefully evaluated, as will be your answers to these
questions. This committee is going to very carefully focus on
these issues.
Senator Jeffords, I have not voted yet, so I am going to
have to wrap this up pretty fast. Did you want to make any
final comments before we proceed?
Senator Jeffords. I would like a few. I think we can make
the vote.
Senator Crapo. You haven't voted either?
Senator Jeffords. No.
Senator Crapo. Oh, good. We are in the same boat.
Senator Jeffords. Don't worry about it. I will be very
fast.
On behalf of Senator Graham, who was necessarily absent
today, I would like to extend my special welcome to Dr. Richard
Hamann, who is here today from the University of Florida in
Gainesville. I am pleased to have you here.
Mr. Hamann, I would like to ask you a question I asked the
earlier panel regarding the Migratory Bird Rule. Is there any
mention in the SWANCC decision of the other prongs of the
Migratory Bird Rule, or any statement that supports the legal
interpretation made by EPA and the Corps in their guidance?
Mr. Hamann. In terms of the application of the Migratory
Bird Rule in the sense that it would allow jurisdiction over
isolated wetlands simply because they are used as habitat by
migratory birds, I think the SWANCC court ruled that out on
that basis. But beyond that, they did not address the other
issues. They did raise questions, but I believe that they could
not get a majority to answer those questions as perhaps the
Chief Justice would have desired in his opinion. So they only
ruled that the Migratory Bird Rule for that site, as it
involved the use by migratory birds, was invalid.
Senator Jeffords. Mr. Yaich, so much of the focus of the
discussion has been on the term ``isolated wetland.'' However,
aren't some of these wetlands connected to groundwater? And
could you please elaborate on how isolated wetlands interact
with groundwater?
Mr. Yaich. Yes, that is the gist of the issue in many ways.
``Isolated'' in the SWANCC decision was usually preceded by
``geographically isolated.'' But as I indicate in my full
testimony and the comments to the ANPRM, there is abundant
evidence that shows linkages between geographically isolated
wetlands such as those that were illustrated in that
photograph, and groundwater. And then there is a connection
also documented between many of those connections, between
groundwater and clearly navigable flowing waters. So for
purposes of the Clean Water Act and dealing with water quality,
there is a direct connection between many of the geographically
isolated wetland, groundwater, and then the flowing navigable
waters.
Senator Jeffords. Isn't it true that impacts on most
isolated wetlands can have impacts downstream on navigable
waters, like rivers and lakes?
Mr. Yaich. Yes, absolutely, because of the connections I
just indicated, any pollutants that are in that water can be
carried through there. A good local example might be the
category of wetland called Delmarva Bays here on the peninsula
shared by three States. Those isolated wetlands are connected
to groundwater and there have been studies that show Delmarva
Bay serves to reduce nitrogen that goes into Chesapeake Bay,
which of course is one of the major issues with regard to
Chesapeake Bay water quality.
Senator Jeffords. I would like to defer my other questions.
Senator Crapo. Before you came in, I indicated that we
would submit written questions to the panel. So anything that
you do not have time to ask now, we can submit.
Senator Jeffords. I think our time is up. We have 4
minutes.
Senator Crapo. Four minutes to get over and vote. So again,
I apologize to the panel. I wanted to get into some really
lively discussion here, but we will continue this discussion in
writing. I encourage you to continue to give us information as
we proceed with this, because I do believe it is time for
Congress to give a serious look to the overall paradigm within
which we approach these issues.
This hearing is adjourned.
[Whereupon, at 12:30 p.m. the committee was adjourned, to
reconvene at the call of the Chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Joseph I. Lieberman, U.S. Senator from the State of
Connecticut
Mr. Chairman and Senator Graham, thank you for holding this
hearing. To me and to the overwhelming majority of Americans,
protecting the nation's waters is of critical importance. That's the
case for a very simple reason. Fresh, clean water is a basic need for
people and for the planet. Without it, ecosystems are threatened. Those
who use our waters for recreation or business purposes are put in
harm's way. And ultimately, the public health of all Americans is
endangered.
The importance of clean water is what forged a bipartisan consensus
for more than three decades in support of vigorous enforcement of the
Federal Clean Water Act. And in my view, President Bush's plan to
eliminate Federal Clean Water Act protections for the nation's isolated
waters is just the latest in a series of assaults on this country's
environment, including its water.
It is certainly no secret that I am a vocal critic of this
Administration's poisonous policies toward the environment. Over the
last 2 years, we have seen President Bush launch an unprecedented
effort to eliminate numerous environmental, health, and safety
protections. We've been at the mercy of a rising tide of anti-
environmental policy: to allow drilling in the Arctic Refuge; weaken
Clean Air Act new source review requirements for old, dirty power
plants; weakly manage waste from large-scale concentrated animal
feeding operations; exempt the Defense Department from complying with
environmental rules and regulations; resist higher fuel economy
standards and readily available technology that would reduce America's
dependence on oil; thwart efforts to curb global warming; cut the
budgets of Agencies responsible for administering the nation's
environmental and natural resource protection laws; and throw out the
core American tenet of ``polluter pays"--to name just a few.
Just last week, we learned of an internal report, prepared by the
Environmental Protection Agency (EPA) in February 2003, that provides
irrefutable evidence of the Agency's abject failure to enforce the
Clean Water Act. The report details extensive, repeated noncompliance
by large industrial facilities, publicly owned treatment works, and
Federal facilities--noncompliance that puts our nation's waters and
public health at risk--and next to no Federal action to curb those
rampant violations. According to the report, in fiscal year 2001, these
large industrial, municipal, and Federal facilities discharged more
than double their allowed amounts of toxic pollutants about half of the
time. Rather than taking action, in the face of these abuses,
government sat on its hands. The Federal Government took formal
enforcement action in fiscal years 1999-2001 against fewer than a
quarter of those deemed to be in serious violation on various grounds
(the term of art is ``significant noncompliance''). And when the
Federal Government did get around to enforcing the law, it was
toothlessly fewer than half of its enforcement actions even resulted in
a fine, and the fines that were levied averaged less than $6,000.00.
Shockingly, EPA formal enforcement actions declined by 45 percent
between fiscal years 1999 and 2001.
Mr. Chairman, that is a murky record indeed--one that shows
Washington relaxing in a polluted riverbed rather than fighting the
current and trying to clean our waterways. If the Bush Administration
continues at this rate, I fear that before long we will be back to
where we started at the beginning of the environmental movement, with
our rivers and streams catching fire from pollution, as they did in the
1960's, before the Federal Government wakes up to the danger caused by
its neglect.
When we look closely at the subject of today's hearing, we see more
disturbing tactics and tendencies on the part of the Bush
Administration. In the case of Solid Waste Agency of Northern Cook
County (SWANCC) v. U.S. Army Corps of Engineers, the United States
Supreme Court ruled that the Federal Clean Water Act does not protect
isolated waters that are intrastate and non-navigable, where the only
basis asserted for such jurisdiction is the actual or potential use of
the waters as habitat for migratory birds that cross State lines. This
is the specific holding in the case--that the EPA and the Army Corps of
Engineers could no longer protect such waterways under the Clean Water
Act solely because they are used as a habitat for migratory birds. The
court held that the agencies' reliance on migratory bird usage was
contrary to congressional intent in the Clean Water Act. At the same
time, it's important to note that the court's legal decision does not
invalidate any longstanding regulatory or Constitutional basis for
Federal protection of non-navigable, isolated, intrastate waters
(isolated waters).
An Administration committed to vigorously protecting our
environment would read the ruling narrowly and continue to aggressively
enforce our environmental laws. But this Administration, predictably,
has used the ruling as an excuse. On January 15, 2003, EPA and the Army
Corps of Engineers published guidance to their field staff and an
advanced notice of proposed rulemaking in response to the SWANCC
decision. And not surprisingly, the Bush Administration is considering
using the decision as a rationale to push through a much more radical
anti-environment agenda than the court decision required.
The guidance, which was effective immediately, directed EPA and
Corps staff to stop asserting Federal jurisdiction over any isolated
waters on any basis without first obtaining EPA Headquarters' approval
to do so. Likewise, the rulemaking sought public comment on what
factors should provide a basis for asserting jurisdiction over any
isolated waters. In other words, EPA decided to read the court's ruling
in the broadest possible terms--which, conveniently, would require the
EPA and the Corps to take as passive a role as possible toward these
bodies of water.
Mr. Chairman, I am not a pessimist for looking at this set of facts
and thinking that the glass is half empty. With the environmental
record of this Administration--with its penchant for bending over
backward to protect industry but lifting little more than a finger to
protect the environment and public health--that is simply a realistic
response.
Fortunately, the American people are wise to this backhanded and,
shall we say, backwater attempt to open our waterways to pollution. The
Federal Government has received more than 130,000 comments in response
to the rulemaking notice--many, many of which, we understand, object to
the Agency's plans to cutoff Federal Clean Water Act protections for
these waterways. Opposition to the expansive rulemaking comes from
citizens, public interest groups, environmental organizations, and such
key State organizations as the Environmental Council of the States
(Resolution Number 03-6 April 10, 2003) and the Association of State
and Interstate Water Pollution Control Administrators (Letter Comment
in EPA's Docket for the Rulemaking).
What is at stake if the Clean Water Act does not protect these
waters? A lapse in Federal authority could create a void in
environmental protection that many States would find difficult to fill
in these historically tight budgetary times. This could leave thousands
of acres of isolated waters-including what has been estimated to
include 30 percent to 60 percent of this nation's remaining wetlands--
at risk. Wetlands perform crucial functions for watershed and ecosystem
health across the country, including flood risk reduction, water
quality improvement, and filtration and recharge of surface and
subsurface drinking water supplies.
Also, as I believe we will hear more about in today's hearing, it
is clear that so-called ``isolated'' waters, including wetlands, are
rarely truly isolated because water moves in hydrologic cycles. This
means that failure to protect isolated waters may have a significant
adverse impact on the overall health of the watershed and ecosystem.
In short, if these waters are left unprotected, the floodgates of
pollution could, so to speak, open wide, and that could threaten public
health in communities throughout America.
I am keenly interested in the Bush Administration's rulemaking
plans and response to the many public comments urging it to abandon
these efforts to narrow the protections of the Clean Water Act. I urge
the Administration to withdraw the current guidance and drop these
rulemaking plans. Given its shameful record on environmental
protection, however, I don't anticipate that this will happen.
Congress therefore must reestablish the common and commonsense
understanding of the Clean Water Act's scope to protect all the
nation's waters. Earlier this year, I was pleased to join Senator
Feingold, along with Senators Jeffords and Boxer, as an original
cosponsor of S. 473, the Clean Water Authority Restoration Act. I look
forward to working with members of the Senate on a bipartisan basis to
enact this bill to restore the integrity of the Clean Water Act if and
when it is necessary.
Thank you, Mr. Chairman and Senator Graham.
__________
Statement of Hon. Bob Graham, U.S. Senator from the State of Florida
Mr. Chairman, today this subcommittee is holding a hearing of
special significance. First, it is the first wetlands hearing in our
subcommittee since we have unified Clean Water Act issues under our
jurisdiction. Second, the issue of wetlands under the Clean Water Act
is one of national importance.
Wetlands, come in many forms, including swamps, fens, marshes,
bogs, sandflats, sloughs, prairie potholes, playa lakes, to name a few.
These areas are priceless resources because each of them performs
irreplaceable services for the environment, and they do it for free.
All we have to do is leave them alone and they do their job flawlessly,
24-7. They nearer ask for a vacation or call in sick. They just work.
Mankind, with all of our advanced science, cannot build workable
substitutes for most wetlands, not at any cost.
Today's hearing focuses on a particular type of wetland known as
isolated, intrastate, nonnavigable waters, sometimes referred to as
``isolated waters.'' Although they can look insignificant, isolated
wetlands perform numerous functions. They provide habitat for aquatic
species of plants and animals and drinking water for many others, they
help recharge aquifers, and they provide stopover points for migratory
birds in transit.
The question before us is whether Federal authority under the Clean
Water Act, as interpreted by Corps of Engineers in the Migratory Bird
Rule, protects these isolated waters from destruction. The Supreme
Court has said it does not. Therefore, it is up to us to either help
the Environmental Protection Agency and the Corps of Engineers
interpret their authority correctly, or to provide them with the
authority they need.
The Supreme Court does not deny that isolated waters perform a
variety of important functions--that migratory birds travel interstate,
that the loss of isolated waters could imperil the survival of certain
species of migratory birds, or that significant economic factors rely
on migratory birds. The only thing the Supreme Court has said is that
the Migratory Bird Rule goes beyond the authority created by the Clean
Water Act.
I would suggest the reason the Clean Water Act was limited to
``navigable waters'' is a function of earlier statutes, and the early
Supreme Court rulings on the limitation of the commerce clause of the
constitution. As legal historians will tell you, the first Federal
statute dealing with water pollution was the Rivers and Harbors Act.
The principal goal of that statute was ensure that commerce was not
hindered by floating debris in the nation's rivers and harbors. In the
years since the Rivers and Harbors Act, many new laws have been
enacted.
The original Clean Water Act was enacted in 1948 and became the
basis for broad new efforts to address water pollution. That Act has
been broadened repeatedly as additional needs and problems have been
identified.
Over the years the Supreme Court's interpretation of the commerce
clause has also evolved. Of particular importance to this hearing is
the concept of ``aggregation''--the idea that acts which are
individually immune to Federal authority may become susceptible to such
authority when considered ``in the aggregate.'' And I would suggest
that the destruction of isolated waters is just such an issue.
Individual isolated waters are typically intra-state, and destroying
any one of them is unlikely to have a noticeable impact on interstate
trade. So, when viewed individually, isolated waters do not seem to
fall under Federal authority under the Commerce Clause. However, if
enough of them are destroyed it is indisputable migratory birds will be
devastated, and that would damage interstate commerce. For this reason,
when viewed ``in the aggregate'', isolated waters do seem to be subject
to Federal authority.
I think that we are presented with a significant problem related
wetlands protection in the Clean Water Act--one that this hearing
should investigate fully and seek to remedy. During his election
campaign, President Bush promised that there would be no net loss of
wetlands under his administration. A majority of the States are in
favor of restoring the previous or abiding by the narrower definition
enunciated by the Supreme Court. Very few States are looking for
further erosion of wetlands protection. I look forward to working with
the subcommittee to help keep the President's promise.
__________
Statement of Hon. Russell D. Feingold, U.S. Senator from the State of
Wisconsin
Mr. Chairman, I thank you for the opportunity to appear before you
today, and I want to acknowledge the very generous and forthright
assistance provided to me as I sought an opportunity to testify before
the subcommittee on this matter by both the Chairman of the full
committee, Senator Inhofe and the ranking member, Senator Jeffords, who
is a cosponsor of legislation I have introduced to reaffirm Federal
Clean Water Act jurisdiction, S. 473.
I am pleased to be testifying on the topic of Federal jurisdiction
over water under the Clean Water Act, Mr. Chairman, because, this is
one of the most fundamental, most successful, and most popular
environmental protection laws in our nation's history. In my experience
as the lead sponsor of legislation on this issue in both the 107th and
the current Congress, I can say that the debate over whether our
Federal law should continue to recognize the interconnected nature of
our water systems is a growing national discussion. I can also say that
I believe it is a debate that is unnecessary, and it is one that
Congress should end. We need to be clear that Congress intends to erase
any lingering ambiguity; we intend to reconfirm the original intent of
the Clean Water Act and protect our waters, rather than lose them. This
hearing goes a long way to achieving that goal, and I commend you, Mr.
Chairman, for being willing to seek confirmation of the state of
Federal law on this matter.
In the U.S. Supreme Court's January 2001 decision, Solid Waste
Agency of Northern Cook County versus the Army Corps of Engineers, a 5
to 4 majority limited the authority of Federal agencies to use what was
called the migratory bird rule as the basis for asserting Clean Water
Act jurisdiction over non-navigable, intrastate, isolated wetlands,
streams, ponds, and other bodies of water.
This decision, which the committee knows as the SWANCC decision,
means that the Environmental Protection Agency and Army Corps of
Engineers can no longer enforce Federal Clean Water Act protection
mechanisms to protect wetlands solely on the basis that they are used
as habitat for migratory birds.
In its discussion of the case, as you will hear from other
witnesses, the Court went beyond the issue of the migratory bird rule
and questioned whether Congress intended the Clean Water Act to provide
protection for isolated ponds, streams, wetlands and other waters, as
it had been interpreted to provide for most of the last 30 years. While
not the legal holding of the case, the Court's discussion has resulted
in a wide variety of interpretations by Federal, State and local
officials that jeopardize protection for wetlands, streams, and other
waters. Wisconsin is fortunate in that, for regulatory matters, it
falls entirely within the jurisdiction of the St. Paul District Corps
of Engineers though we have three Corps districts: St. Paul, Detroit,
and Rock Island, Il, that service our State. Other States aren't as
lucky, and I have heard anecdotally that different Districts are giving
different answers to questions about Clean Water Act jurisdiction after
SWANNC. I hope the subcommittee will pursue that issue with the Corps
today.
Confusion about the proper scope of the Clean Water Act also exists
within EPA. I noted with interest that, in March of this year, Senator
Jeffords received a letter from EPA in response to a letter he had
written asking whether Lake Champlain and its tributaries are still
considered jurisdictional or not under the Clean Water Act. While EPA
replied that Lake Champlain and all of its tributaries would continue
to fall under the Clean Water Act's jurisdiction, the Agency's letter
raises questions about whether EPA would assert jurisdiction over
streams and other tributaries of major water bodies as well as over so-
called isolated, intrastate, non-navigable wetlands. The letter
suggests that EPA's determination of Clean Water Act jurisdiction in
those cases might not be uniform nationwide, but instead would be
dependent upon the holdings of individual courts within a particular
region.
The regulated community is also concerned, Mr. Chairman. As you
know, when a developer gets a permit from the Federal Government to
destroy wetlands, they are required to mitigate them elsewhere.
National Association of Mitigation Bankers is an association of
businesses that constructs wetlands to meet the mitigation requirements
of Corps of Engineers and EPA 404 wetlands permits. Many of the
wetlands mitigation bankers create, though not all, are isolated, non-
navigable wetlands. Ironically, the Federal agency response to the
SWANNC decision no longer provides Federal protection for some of the
wetlands that Federal Government mandates required developers to
construct.
Within days of the SWANCC decision, constituents came to my town
hall meetings asking for Congress to respond this decision immediately.
Wisconsin became the first State to pass legislation to assume
regulatory jurisdiction over wetlands left unprotected by the Supreme
Court's decision. Wisconsin has 15,000 named lakes and ponds, 5.3
million acres of wetlands and approximately 44,000 miles of streams.
Wisconsin estimated that if SWANCC's holding limits jurisdiction over
so-called isolated wetlands, more than 1.1 million acres of wetlands in
Wisconsin would no longer have Federal protection. Our State's
legislation has become the model for several States.
The confusion over the interpretation of the SWANCC decision is
growing, but not, I believe, because of the holding SWANNC case itself,
but because of the manner in which Federal agencies are implementing
the decision. On January 15, 2003, the EPA and Army Corps of Engineers
published in the Federal Register an Advanced Notice of Proposed
Rulemaking raising questions about the jurisdiction of the Clean Water
Act. Simultaneously, they released a guidance memo to their field staff
regarding Clean Water Act jurisdiction.
The agencies claim these actions are necessary because of the
SWANCC case. But both the guidance memo and the proposed rulemaking go
far beyond the holding in SWANCC. The guidance took effect right away
and has had an immediate impact. It tells the Corps and EPA staff to
stop asserting jurisdiction over isolated waters without first
obtaining permission from headquarters. Based on this guidance
memorandum, waters that the EPA and Corps staff judge to be outside the
Clean Water Act can be filled, dredged, and polluted without a permit
or any other long-standing Clean Water Act safeguard.
The rulemaking announces the Administration's intention to consider
even broader changes to Clean Water Act coverage for our waters.
Specifically, the agencies are questioning whether there is any basis
for asserting Clean Water Act jurisdiction over additional waters, like
intermittent streams. The possibility for a redefinition of our waters
is troubling because there is only one definition of the term ``water''
in the Clean Water Act, so any change in the regulatory definition of
``water'' will effect the entire law. The wetlands program, the point
source program which stops the dumping of pollution, and the non-point
program governing polluted runoff all depend on the same definition.
If certain wetlands or other categories of water are treated as no
longer protected under Section 404, then the law will fail to protect
those same waters from having toxic waste, trash or raw sewage dumped
in them under Section 402, or be protected against oil spills under
Section 311, or be cleaned up under Section 303, or be protected from
other activities that violate the Clean Water Act conducted in them as
well.
Using administrative action to eliminate a category of waters from
Clean Water Act jurisdiction is contrary to the law and the purpose of
the Act. The Clean Water Act was adopted over thirty years ago to
address widespread and severe water pollution problems across the
country. Congress determined that it could not be left solely to the
States to ensure that every community in the nations had access to
clean, safe waters. While the Act prohibited discharges of pollutants
into ``navigable'' waters. Congress defined this term broadly as
``waters of the United States.'' This broad definition was referred to
repeatedly on the floor and in the relevant committees and on the floor
of the House and Senate. The U.S. Senate reconfirmed the broad scope of
the law again in 1977 when it rejected, by a strong bipartisan vote, a
proposal to remove Federal protections over a smaller category of
wetlands and waters than are included in the Administration's Advanced
Notice of Proposed Rulemaking.
Even while EPA and the Corps consider whether to conduct a
rulemaking to rewrite the definition of waters, the U.S. Department of
Justice is in Federal court defending the legal validity of the
existing regulatory definition. Indeed, in recent briefs filed by the
Justice Department, the Administration has argued forcefully that the
broad definition of ``waters'' in the current rules is not only valid,
it is necessary in order for the goal of the Clean Water Act to be met
to make all of the nation's waters safe for fishing, swimming and other
uses.
In my view, Congress decided this debate over the scope of the
Clean Water Act in 1972, and the renewed debate should end now.
Congress needs to re-affirm the longstanding understanding of the Clean
Water Act's jurisdiction to protect all waters of the U.S.--the
understanding that Congress held when the Act was adopted in 1972--as
reflected in the law, legislative history, and the regulations,
practice, and judicial interpretations that existed for many years
prior to the SWANCC decision.
My proposed legislation does that, and it is a very simple bill. It
adopts a statutory definition of ``waters of the United States'' based
on the longstanding definition of waters in the EPA and Corps of
Engineers' regulations. Second, it deletes the term navigable from the
Act to clarify that Congress's primary concern in 1972 was to protect
the nation's waters from pollution, rather than just sustain the
navigability of waterways, and to reinforce that original intent.
Finally, it includes a set of findings that explain the factual basis
for Congress to assert its constitutional authority over streams,
wetlands, ponds and other waters on all relevant Constitutional
grounds, including the Commerce Clause, the Property Clause, the Treaty
Clause, and Necessary and Proper Clause.
As the committee knows, I feel that Congress needs to re-confirm
the Clean Water Act's jurisdiction to protect all waters of the United
States. I believe the legislation I have introduced does no more and no
less than that, and I hope this hearing will provide the committee with
justification for moving that measure forward. I thank you for the
opportunity to share my views and those of my State.
__________
Statement of Hon. G. Tracy Mehan, Assistant Administrator for Water,
Environmental Protection Agency and Hon. George S. Dunlop, Deputy
Assistant Secretary of the Army for Policy and Legislation, Department
of the Army
Good morning, Mr. Chairman and members of the subcommittee. We
welcome the opportunity to present joint testimony to you today on
issues concerning Clean Water Act (CWA) jurisdiction over navigable
waters. In keeping with your May 29, 2003, letter of invitation, our
testimony will address the current regulatory and legal status of
Federal jurisdiction in light of the issues raised by the Supreme Court
ruling in Solid Waste Agency of Northern Cook County v. the U.S. Army
Corps of Engineers, 531 U.S. 159 (2001) (``SWANCC''). In particular,
our testimony will provide background information on our agencies'
roles and responsibilities under the CWA, summarize the SWANCC
decision, discuss our recently issued joint guidance in response to the
SWANCC decision as well as our Advance Notice of Proposed Rulemaking
(ANPRM), and then address some of the jurisdictional issues relating to
the ' 404 regulatory program.
Overview of EPA and Corps of Engineers Clean Water Act Responsibilities
The Environmental Protection Agency (EPA) and the U.S. Army Corps
of Engineers (``Corps'') share responsibility for the Sec. 404 program
under the CWA, which regulates discharges of dredged or fill material,
helping to protect wetlands and other aquatic resources and maintain
the environmental and economic benefits provided by these valuable
natural resources. In addition, EPA administers or oversees
implementation of numerous other provisions of the CWA. For example,
EPA and approved Tribes or States issue permits under Sec. 402 for
discharges of pollutants other than dredged and fill material, and EPA
reviews and approves water quality standards developed by approved
Tribes or States under Sec. 303.
The Sec. 404 responsibilities are extensive. Fulfillment of the
Corps day to day responsibilities in its regulatory program requires a
staff of greater than 1200 and a budget in fiscal year 2003 of $137
million. These resources are required each year to process more than
80,000 individual and general permit authorizations, including any
associated jurisdictional determinations.
Under Sec. 404 of the CWA, any person planning to discharge dredged
or fill material to ``navigable waters'' must first obtain
authorization from the Corps (or a Tribe or State approved to
administer the Sec. 404 program), through issuance of an individual
permit, or must be authorized to undertake that activity under a
general permit. Although the Corps is responsible for the day-to-day
administration of the Sec. 404 program, including reviewing permit
applications and deciding whether to issue or deny permits, EPA has a
number of important Sec. 404 responsibilities. In consultation with the
Corps, EPA develops the Sec. 404(b)(1) Guidelines, which are the
environmental criteria that the Corps must apply when deciding whether
to issue permits. Under those Guidelines, a discharge is allowable only
when there is no practicable alternative with less adverse effect on
the aquatic ecosystem, and appropriate steps must be taken to minimize
potential adverse effects to the aquatic ecosystem and mitigate for
unavoidable impacts.
EPA and the Corps have a long history of working together closely
and cooperatively in order to fulfill our important statutory duties on
behalf of the public. In this regard, the Army and EPA have concluded a
number of written agreements to further these cooperative efforts in a
manner that promotes efficiency, consistency, and environmental
protection. For example, in 1989 the agencies entered into a Memorandum
of Agreement (MOA) setting forth an appropriate allocation of
responsibilities between the EPA and the Corps for determining the
geographic jurisdiction of the Sec. 404 program. That MOA was entered
into in light of a 1979 U.S. Attorney General opinion (43 Op. Att'y
Gen. 197) determining that EPA has the ultimate authority under the CWA
to determine the geographic jurisdictional scope of the Act. The MOA
provides that the Corps will perform the majority of the geographic
jurisdictional determinations in the Sec. 404 program using guidance
developed by EPA with input from the Corps. Typically such guidance at
the national level has been jointly issued by our agencies.
SWANCC Decision
SWANCC involved a challenge to CWA jurisdiction over certain
isolated, intrastate, non-navigable ponds in Illinois that formerly had
been gravel mine pits, but which, over time, attracted migratory birds.
Although these ponds served as migratory bird habitat, they were non-
navigable and isolated from other waters regulated under the CWA.
In SWANCC, the Supreme Court held that the Army Corps of Engineers
had exceeded its authority in asserting CWA jurisdiction pursuant to
Sec. 404(a) over isolated, intrastate, non-navigable waters under 33
C.F.R. Sec. 328.3(a)(3), based on their use as habitat for migratory
birds pursuant to preamble language commonly referred to as the
``Migratory Bird Rule,'' 51 Fed. Reg. 41217 (1986). At the same time,
the Court in SWANCC did not disturb its earlier holding in United
States v. Riverside Bayview Homes, 474 U.S. 121 (1985) which found that
``Congress' concern for the protection of water quality and aquatic
ecosystems indicated its intent to regulate wetlands 'inseparably bound
up with' `` jurisdictional waters. 474 U.S. at 134.
``Navigable waters'' are defined in Sec. 502 of the CWA to mean
``waters of the United States, including the territorial seas.'' In
SWANCC, the Court determined that the term ``navigable'' had
significance in indicating the authority Congress intended to exercise
in asserting CWA jurisdiction. After reviewing the jurisdictional scope
of the statutory definition of ``navigable waters'' in Sec. 502, the
Court concluded that neither the text of the statute nor its
legislative history supported the Corps' assertion of jurisdiction over
the waters involved in SWANCC.
In SWANCC, the Supreme Court recognized that ``Congress passed the
CWA for the stated purpose of 'restoring and maintaining the chemical,
physical, and biological integrity of the Nation's waters' `` and noted
that ``Congress chose to 'recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution, to plan the development and use (including restoration,
preservation, and enhancement) of land and water resources.'''
Expressing ``serious constitutional and federalism questions'' raised
by the Corps' interpretation of the CWA, the Court stated that ``where
an administrative interpretation of a statute invokes the outer limits
of Congress' power, we expect a clear indication that Congress intended
that result.'' Finding ``nothing approaching a clear statement from
Congress that it intended Sec. 404(a) to reach an abandoned sand and
gravel pit,'' the Court held that the ``Migratory Bird Rule'', as
applied to petitioners' property, exceeded the agencies' authority
under Sec. 404(a).
Apart from Sec. 404, the jurisdiction of many other CWA programs
also is dependent upon the meaning of ``navigable waters'' as defined
in CWA Sec. 502. Thus, although the SWANCC case itself specifically
involves Sec. 404 of the CWA, the Court's decision may also affect the
scope of regulatory jurisdiction under other provisions of the CWA,
including programs under 'Sec. 303 (water quality standards program),
311 (spill program, as well as the Oil Pollution Act), 401 (State
water-quality certification program), and 402 (National Pollutant
Discharge Elimination System (NPDES) permitting program). For example,
two significant U.S. Circuit Court of Appeals opinions interpreting
SWANCC involved such other programs. Headwaters v. Talent Irrigation
Dist., 243 F.3d 526, 534 (9th Cir. 2001) (Sec. 402); Rice v. Harken,
250 F.3d 264 (5th Cir. 2001) (rehearing denied) (Oil Pollution Act).
Joint Guidance and Advance Notice of Proposed Rulemaking
On January 10, 2003, following coordination with the Department of
Justice, General Counsel from EPA and Army jointly signed clarifying
guidance regarding the Supreme Court's decision in SWANCC. The guidance
states that jurisdictional decisions will be based on Supreme Court
cases, including Riverside Bayview Homes and SWANCC, relevant
regulations, and applicable case law in each jurisdiction. Because it
is guidance, it does not impose legally binding requirements on EPA,
the Corps, or the regulated community, and its applicability depends on
the circumstances. The guidance was provided to our field offices and
also published as Appendix A to the Agencies' ANPRM in order to ensure
its availability to interested persons and to help better inform public
comment on the ANPRM.
The guidance makes a number of key points with regard to assertion
of CWA jurisdiction, providing that:
<bullet> Field staff should not assert jurisdiction over isolated
wetlands and other isolated waters that are both intrastate and non-
navigable where the sole basis for asserting jurisdiction is based on
the factors in the preamble language known as the ``Migratory Bird
Rule``:
<bullet> Use as habitat by birds subject to Migratory Bird
Treaties or which cross State lines;
<bullet> Use as habitat for endangered species; or
<bullet> Use to irrigate crops sold in commerce.
<bullet> Field staff should seek formal project-specific
headquarters approval prior to asserting jurisdiction over isolated
non-navigable intrastate waters based on factors listed in 33 C.F.R.
Sec. 328.3(a)(3):
<bullet> Use by interstate or foreign travelers for recreational
or other purposes;
<bullet> Production of fish or shellfish sold in interstate or
foreign commerce; or
<bullet> Use for industrial purposes by industries in interstate
commerce.
<bullet> Field staff should continue to assert jurisdiction over
traditional navigable waters (and adjacent wetlands) and, generally
speaking, their tributary systems (and adjacent wetlands).
<bullet> The guidance describes traditional navigable waters as
waters that are subject to the ebb and flow of the tide, or waters that
are presently used, or have been used in the past, or may be
susceptible for use to transport interstate or foreign commerce.
Finally, because case law interpreting SWANCC is still developing,
the guidance supersedes the previous EPA/Corps (January 19, 2001) legal
memorandum concerning SWANCC..
In addition to the guidance, we published a joint ANPRM soliciting
public comment, information and data on issues associated with the
definition of ``waters of the U.S.'' in light of SWANCC. 68 Fed. Reg.
1991 (January 15, 2003). Issuance of the ANRPM was an extra measure,
not required by the Administrative Procedure Act, to provide an early
opportunity for public comment on this important issue before the
agencies decide how to proceed. It does not pre-suppose any particular
substantive or procedural outcome.
The ANPRM comment period ran for 90 days, closing on April 16th. It
sought public input on the following regulatory issues:
<bullet> Whether factors listed in Sec. 328.3(a)(3)(i)-(iii) of
the regulations (i.e., use of the water by interstate or foreign
travelers for recreational or other purposes, the presence of fish or
shellfish that could be taken and sold in interstate commerce, the use
of the water for industrial purposes by industries in interstate
commerce) or any other factors, provide a basis for CWA jurisdiction
over isolated, non-navigable, intrastate waters;
<bullet> Whether the agencies should define ``isolated waters,''
and if so, what factors should be taken into account in the definition.
The ANPRM also sought information on the effectiveness of other
Federal or non-Federal programs for the protection of aquatic
resources, as well as on the functions and values of wetlands and other
waters that may be affected by SWANCC. In addition, it sought data and
comments on the effect of no longer asserting jurisdiction over some of
the waters (and discharges to those waters) in a watershed on the
implementation of Total Maximum Daily Loads (TMDLs) and attainment of
water quality standards. Finally, as is often the case with ANPRMs, we
did not seek to limit comment only to the specific questions raised,
but also solicited views as to whether any other revisions are needed
to the existing regulations regarding which waters are jurisdictional
under the CWA.
Public Response to Advance Notice of Proposed Rulemaking
We received over 133,000 comments on the ANPRM by the close of the
April 16th comment period. As we are still early in the process of
reviewing and analyzing the comments received, the information that
follows is at this point of a preliminary nature. Approximately 128,000
of the comments appear to be the result of e-mail or write-in campaigns
producing identical or substantially similar letters. Of the apparent
5,000 unique or individual letters received, approximately 500 letters
raise or discuss specific issues in some detail. The commenters
included a number of different types of stakeholder groupings,
including Tribes/States and related associations, local governments,
academic, research and scientific associations, industry and the
regulated public, non-profit organizations, and private citizens.
The comments reflect a wide breadth of opinion, ranging from
assertions that SWANCC affects only jurisdiction based solely on use by
migratory birds that cross State lines to assertions that SWANCC limits
CWA jurisdiction to navigable-in-fact waters and those tributaries and
wetlands shown to have an actual effect on navigable capacity. Some
commenters supported further rulemaking to clarify CWA jurisdiction,
some favored clarification through use of guidance instead, while
others supported no action at all or withdrawal of the current
guidance. Some commenters expressed the view that the nature and extent
of aquatic resource impacts was irrelevant to determining CWA
jurisdiction, while others expressed concern for such impacts and the
need to consider this when determining how to proceed. We also received
comments from 4 Tribes and 42 different States on the ANPRM. A large
number of these commenters provided information and data regarding the
ecological value of various aquatic resources, including wetlands and
ephemeral and intermittent streams.
Regulatory Status of Federal Jurisdiction Under Sec. 404 of the CWA
Although the SWANCC decision did not invalidate any part of the CWA
or of the regulations (the so-called ``Migratory Bird Rule'' as
previously indicated is actually an excerpt from the preamble to the
Corps 1986 regulations), it did have important implications for the
Corps administration of the Sec. 404 CWA regulatory program, as well as
implications for other CWA programs whose jurisdiction depends upon the
meaning of ``navigable waters.'' This is because the Agencies have
applied the ``Migratory Bird Rule'' criteria since 1986 as a basis of
jurisdiction over aquatic area that were not readily identifiable as
jurisdictional on some other basis.
The Supreme Court's invalidation of the use of the Migratory Bird
Rule as a basis for CWA jurisdiction over certain isolated waters has
focused greater attention on CWA jurisdiction generally, and
specifically over tributaries to jurisdictional waters and over
wetlands that are ``adjacent wetlands'' for CWA purposes as we
explained in testimony before the Subcommittee on Energy Policy,
Natural Resources and Regulatory Affairs of the U.S. House Committee on
Government Reform on September 19, 2002. The ANPRM , which solicited
input from the public on the nature of, and necessity for, any change
in the existing regulations, is the first step in the process of
addressing the jurisdictional issues arising from the SWANCC decision.
The Joint Guidance that was published as Appendix A of the ANPRM
provided useful information on CWA jurisdiction to the public and
regulatory staff, but further information is needed to provide the
degree of certainty that Agency personnel and the regulated public
deserve, and to ensure the fair and effective administration of the
CWA. Any inconsistencies in Sec. 404 jurisdictional determinations
highlight our executive branch responsibility to provide this clarity.
Responsible stewardship requires that we ensure that Federal resources
are applied effectively and consistently to maximize environmental
protection in a manner consistent with the CWA.
As was previously indicated, the ultimate direction of any proposed
rulemaking has not been predetermined, and will be influenced
significantly by the public comment on the ANPRM. Our general goals
will be to provide clarity for the public and to ensure consistency
among CWA jurisdictional determinations nationwide.
Conclusion
We wish to emphasize that the agencies remain fully committed to
protecting all CWA jurisdictional waters, including adjacent wetlands,
as was intended by Congress. Safeguarding these waters is a critical
Federal function because it ensures that the chemical, physical, and
biological integrity of these waters is maintained and preserved for
future generations. We will carefully consider all the comments and
information received in response to the ANPRM. Our goal in moving
forward is to clarify what waters are properly subject to CWA
jurisdiction in light of SWANCC and afford them full protection through
an appropriate focus of Federal and State resources in a manner
consistent with the Act.
We also wish to emphasize that although the SWANCC decision and our
testimony today focus on Federal jurisdiction pursuant to the CWA,
other Federal or State laws and programs may still protect a water and
related ecosystem even if that water is no longer jurisdictional under
the CWA following SWANCC. SWANCC did not affect the Federal
Government's commitment to wetlands protection through the Food
Security Act's Swampbuster requirements and Federal agricultural
program benefits and restoration through such Federal programs as the
Wetlands Reserve Program (administered by the U.S. Department of
Agriculture) grant making programs such as Partners in Wildlife
(administered by the Fish and Wildlife Service), the Coastal Wetlands
Restoration Program (administered by the National Marine Fisheries
Service), the Five Star Restoration and National Estuary Program
(administered by EPA), and the Migratory Bird Conservation Commission
(composed of the Secretaries of Interior and Agriculture, the
Administrator of EPA and Members of Congress). In addition, some States
have authority under State law to regulate activities in waters that
are beyond the jurisdiction of the CWA. About 15 States have had for a
number of years programs to protect at least some of these waters, and
Wisconsin and Ohio have expanded their programs since the SWANCC
decision. The President has requested an increase in funding for
Wetlands Programs Grants in the Fiscal Year 2004 budget, which will
provide a financial incentive for other Tribes and States to provide
broader and more effective protection for their waters.
Thank you for providing us with this opportunity to present this
testimony to you. We appreciate your interest in these important
national issues that are of mutual concern.
__________
Statement of Hon. Thomas L. Sansonetti, Assistant Attorney General,
U.S. Department of Justice
INTRODUCTION
Chairman Inhofe, Senator Jeffords, and members of the subcommittee,
I am pleased to be here today to discuss the Department of Justice's
response to the Supreme Court's decision in Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159
(2001), colloquially known as ``SWANCC.'' In my testimony today, I will
describe our work in connection with the Clean Water Act (``CWA''), the
interpretation of which was at issue in SWANCC, and the efforts that we
have made to ensure that the positions that we have taken in litigation
are consistent with SWANCC. I will also highlight some of the work that
we are doing with the States to improve State-Federal coordination and
cooperation in wetlands protection and enforcement.
At the outset, I would like to provide the subcommittee with a
perspective on the breadth of our work. The Environment and Natural
Resources Division has a docket of well over 10,000 pending cases and
matters, with cases in every judicial district in the Nation. The
majority of our cases are defensive, i.e., where we are defending the
United States or particular Federal agencies when they have been sued.
Although some of these defensive cases involve the CWA, many more do
not. In fact, we litigate cases arising from well over 70 different
environmental and natural resource statutes, including the
Comprehensive Environmental Response, Compensation and Liability Act
(``CERCLA''), the National Environmental Policy Act, the National
Forest Management Act, the Coastal Zone Management Act, and the
National Historic Preservation Act.
Even if one were to focus only on the affirmative enforcement part
of our docket, wetlands cases form only a very small subset of those
cases. We have many other enforcement actions focusing on violations of
other provisions of the CWA, not to mention of the Clean Air Act, the
Safe Drinking Water Act, the hazardous waste laws and a variety of
other environmental laws. This enforcement work has resulted in
significant gains for public health and the environment across the
United States.
However, I will focus my testimony today on our CWA cases, in
particular those involving wetlands.
AN OVERVIEW OF OUR CLEAN WATER ACT DOCKET
The Department of Justice's primary role with regard to the CWA is
to represent the Environmental Protection Agency (``EPA''), the Army
Corps of Engineers (``Corps''), and any other Federal agency that might
be involved in litigation that arises pursuant to the CWA. This
litigation can be either defensive or affirmative.
As the word suggests, in defensive litigation we defend Federal
agencies that are being sued in connection with the CWA. Such actions
can take a variety of forms. For example, affected parties will
sometimes bring an action against the Corps when it makes a case-
specific decision, such as the grant or denial of a CWA permit.
Regulated entities, environmental interests, and public entities such
as municipalities will also seek judicial review when the Corps and EPA
make broader policy decisions such as those embodied in a rulemaking.
Parties may also sue EPA for failure to perform a non-discretionary
duty under the CWA. Finally, Federal agencies can also be sued for
discharging pollutants into waters of the United States if they have
not complied with the applicable requirements of the CWA. In my
Division, which is the Environment and Natural Resources Division, we
have an Environmental Defense Section that specializes in defending the
actions of Federal agencies, including EPA and the Corps, when they are
challenged in court in connection with the CWA.
We also bring affirmative litigation under the CWA. By
``affirmative litigation,'' I am referring to enforcement cases, which
can be either civil or criminal. Three sections in the Division handle
CWA enforcement actions. Civil enforcement cases are generally handled
by our Environmental Enforcement Section, with the exception of cases
brought pursuant to CWA section 404, which are handled by our
Environmental Defense Section or by U.S. Attorney's Offices. Criminal
enforcement of the CWA is handled by our Environmental Crimes Section,
usually in conjunction with local U.S. Attorney's Offices.
CWA civil judicial enforcement actions generally begin with a
referral or investigation from another Federal agency, whether it is
EPA or the Corps, regarding alleged violations of the CWA. Often by the
time we receive a referral, the agency in question has exhausted all
avenues for resolving the dispute administratively, and has carefully
considered whether judicial enforcement is the appropriate course of
action. Upon receiving the agency's recommendation, we conduct our own
internal, independent inquiry and analysis to determine whether there
is sufficient evidence to support the elements of the offense and
whether the case is otherwise appropriate for judicial action. If we
determine that judicial enforcement is warranted, we also explore
possibilities for achieving settlement of the alleged violations
without litigation as appropriate.
I refer to ``judicial enforcement'' for a reason. The vast majority
of environmental violations, including CWA-type violations, are
addressed and resolved by State and local governments. In the wetlands
area, most Federal enforcement of the CWA occurs at the administrative
level and is carried out by the EPA and the Corps, and does not involve
the Department of Justice. In this regard, I commend the Corps for
implementing an administrative appeals process that allows landowners
to seek further review of jurisdictional determinations. This process
helps to ensure nationwide consistency in the implementation of the CWA
and is yet another means by which disputes over CWA jurisdiction may be
resolved before a matter gets to the point of potential litigation,
which is when the Department of Justice would get involved.
In sum, the Division's work is only a small, albeit important, part
of CWA implementation and enforcement more generally. For instance, in
the last 5 years, the United States has filed on average 14 new wetland
civil enforcement cases each year, with half of those cases being
settled at the time of filing.
OUR RESPONSE TO SWANCC
SWANCC was an example of defensive litigation. In that case, the
Corps of Engineers had asserted jurisdiction over a series of small
ponds in Illinois, which the record indicated were isolated,
intrastate, and non-navigable, and determined that the CWA required
that the petitioner in that case, the Solid Waste Agency of Northern
Cook County, needed to obtain a permit for construction of a solid
waste landfill. The basis for the Corps' assertion of jurisdiction over
the isolated ponds was evidence that the ponds provided habitat for a
large number of migratory bird species that cross interstate lines.
However, the Supreme Court ruled that the Corps had exceeded its
statutory authority by requiring a permit for the filling of those
ponds. In particular, the Court held that the Corps' practice of
relying on the so-called ``Migratory Bird Rule'' (which is really not a
rule but a preamble) to assert jurisdiction over such non-navigable,
intrastate, isolated waters was contrary to Congress' intent in the
Clean Water Act.
Just as with any other Supreme Court case, we have sought to ensure
that the legal positions taken on behalf of the Federal Government in
litigation are consistent with SWANCC, regardless of where a case
arises or which agency is involved in a particular case. Accordingly,
after SWANCC was decided, the Division conducted a comprehensive review
of its entire docket of Clean Water Act litigation. We carefully
scrutinized any case that involved isolated waters, the Migratory Bird
Rule, or any theory analogous to the Migratory Bird Rule, to determine
whether SWANCC had undermined the basis for asserting Clean Water Act
jurisdiction in that case. If we determined that the basis for
jurisdiction in a particular case was undermined by SWANCC, we took
appropriate action. For example, in Borden Ranch Partnership v. U.S.
Army Corps of Engineers, in conjunction with EPA and the Corps, we re-
examined the basis for jurisdiction over the one isolated vernal pool
which had been destroyed and over which the court had determined that
there was jurisdiction, and notified the Ninth Circuit that we were
withdrawing our enforcement claim regarding that particular vernal
pool.
In addition to taking the necessary steps to ensure that our
existing cases were consistent with SWANCC, we established a process
for ensuring that the positions we take in all SWANCC-related
litigation going forward are internally consistent and appropriately
coordinated within the Federal Government. Thus, in addition to the
probing review of all of our prospective enforcement cases that I
described earlier, we devote particular attention in our Clean Water
Act enforcement cases to whether there is a factually and legally sound
basis, consistent with SWANCC, for asserting jurisdiction over the
aquatic resources in question before deciding to proceed. We carefully
review such referrals or investigations to determine whether to proceed
with judicial enforcement. We have similarly applied careful scrutiny
to SWANCC-related arguments that we make in our defensive litigation.
Since SWANCC was decided in January 2001, the United States has
filed briefs in at least 27 cases in which the scope of geographic
jurisdiction under the Clean Water Act was a significant issue. These
cases involve issues arising under the Section 402 pollution discharge
permit program, the Section 311 program addressing oil discharges and
the Oil Pollution Act, as well as the Section 404 program. We have made
considerable efforts to review and coordinate each and every one of the
briefs filed in those cases. In particular, we have assigned a team of
attorneys with expertise in wetlands issues and the Clean Water Act to
review all briefs addressing important SWANCC-related issues that are
filed by the various trial and appellate sections within the Division.
In addition to ensuring that the basic positions taken in the those
briefs are internally consistent, our attorneys have also made great
efforts to coordinate our positions with the appropriate agencies,
primarily EPA and the Army Corps of Engineers. Moreover, our attorneys
have worked proactively and cooperatively with U.S. Attorney's Offices,
to share our experiences and expertise, and to ensure that the United
States is speaking with one voice in the Federal courts around the
country.
As I mentioned before, the SWANCC decision clearly precludes
reliance on use by migratory birds as the sole basis for CWA
jurisdiction over isolated, non-navigable, intrastate waters and calls
into question whether any of the other factors in the Migratory Bird
Rule is a valid basis for asserting jurisdiction. In addition, the
reasoning of that decision raised uncertainty as to whether there
remains any basis for jurisdiction under the other rationales in the
``(a)(3)'' provision in the agencies' regulation defining ``waters of
the United States,'' particularly the extent to which the agencies may
rely upon the ``(a)(3)'' factors for purposes of regulating non-
navigable, intrastate, isolated waters. Indeed, the effect of SWANCC on
this aspect of the regulations is one of the subjects of the Advance
Notice of Proposed Rulemaking and associated guidance issued by the
Department of the Army and EPA on January 15, 2003. My colleagues from
the Army and EPA will be addressing their work on this rulemaking in
their testimony. But I can tell you that in none of our post-SWANCC
cases have we relied upon the Migratory Bird Rule or any analogous
theory under the ``(a)(3)'' provision as a basis for defending CWA
jurisdiction over a particular site. To the extent that SWANCC raised
serious doubts about any claims that we were making in litigation that
was pending at the time SWANCC was decided, we withdrew or modified
those claims accordingly, as I noted above.
Our careful examination of our cases has paid off with success in
the courts. Of the 27 cases referred to earlier in my testimony in
which we have filed SWANCC-related briefs, 22 have resulted in judicial
decisions, and 17 of those decisions have been in favor of the United
States. However, the post-SWANCC case law remains unsettled as we are
involved in at least nine SWANCC-related cases in the Courts of Appeals
for the Fourth, Fifth, Sixth, Seventh, and Ninth Circuits. With regard
to these cases, I would be pleased to make available to the
subcommittee any brief of the United States that it requests.
I would like to mention another facet of our post-SWANCC
activities: working cooperatively with the States. One of the basic
teachings of SWANCC is that not every wetland or other aquatic area in
the country is an appropriate subject of Federal regulation under the
Clean Water Act. Since the decision in SWANCC, some States, such as
Wisconsin and Ohio, have enacted legislation providing authority to
address aquatic resources not subject to Federal regulatory
jurisdiction under the CWA. Other States are considering such
legislation or are exploring ways to use existing regulatory and non-
regulatory authorities and programs to address these aquatic resources.
We have made great strides to improve Federal-State cooperation and
coordination in environmental protection generally, and in connection
with SWANCC, we are redoubling our efforts in this regard.
In particular, in December 2002, we hosted a national conference
and training course on wetlands protection and enforcement, designed in
cooperation with several State associations, EPA and the Corps, to
facilitate Federal-State partnerships in this important area. The
conference, which took place in the Department of Justice training
facility, attracted government officials from approximately two-thirds
of the States, including representatives of State environment and
natural resources agencies, State attorneys general offices, and even
some State legislatures. As the conference's keynote speaker, I
stressed the importance of Federal-State collaboration and cooperation
in wetlands protection and enforcement in a time of dwindling
government resources at both the Federal and State levels. One of the
primary purposes of the conference was to encourage States to take a
hard look at their existing State-law authorities that may be used to
protect wetlands not subject to Federal jurisdiction following SWANCC
and other Federal court decisions, and to facilitate the exchange of
information regarding new and innovative methods of addressing wetlands
protection at the State level. We look forward to continuing this
dialog with our State colleagues, and to continue to explore ways that
we can work together to protect this Nation's wetlands.
CONCLUSION
In closing, I would like to assure the subcommittee that the
Department of Justice takes seriously its obligation to protect public
health and the environment and to enforce and defend the existing laws.
As I have described in greater detail above, we work hard to ensure
that the positions we take in litigation with respect to SWANCC are
consistent and coordinated with our client agencies, which is our
practice with all our litigation. I would be happy to answer any
questions that you may have about my testimony.
______
Responses of Attorney General Thomas Sansonetti to Additional Questions
from Senator Inhofe
Question 1. In the SWANCC decision the Supreme Court stated, ``It
was the significant nexus between the wetlands and ``navigable waters''
that informed our reading of the CWA in Riverside Bayview Homes.
Indeed, we did not ``express any opinion'' on the ``question of the
authority of the Corps to regulate discharges of fill material into
wetlands that are not adjacent to bodies of open water. . . . `` Id.,
at 131-132, n. 8. In order to rule for respondents here, we would have
to hold that the jurisdiction of the Corps extends to ponds that are
not adjacent to open water. But we conclude that the text of the
statute will not allow this.''
In your testimony you state, ``Just as with any other Supreme Court
case, we have sought to ensure that the legal positions taken on behalf
of the Federal Government in litigation are consistent with SWANCC,
regardless of where a case arises or which agency is involved in a
particular case.''
Since the Supreme Court's decision in SWANCC, has the Justice
Department in any enforcement or defensive litigation asserted that a
Federal agency has jurisdiction over waters or wetlands which are not
adjacent to open water?
Response. The relevant regulations of the Environmental Protection
Agency (EPA) and the Army Corps of Engineers (ACE) define ``waters of
the United States'' for purposes of the Clean Water Act (CWA) to mean
(1) navigable-in-fact waters; (2) interstate waters; (3) all other
waters, the use, degradation, or destruction of which could affect
interstate or foreign commerce; (4) impoundments of waters of the
United States; (5) tributaries of any of the above; (6) the territorial
seas; and (7) wetlands adjacent to any of the above. See, e.g., 33
C.F.R. 328.3(a). Only subpart (3) of this regulatory definition was
involved in SWANCC. None of the affirmative or defensive cases that the
Department of Justice has litigated since SWANCC, with the exception of
the matters listed below in response to the last question, have
involved subpart (3) waters. Rather, the cases have involved navigable-
in-fact waters, tributaries of navigable-in-fact waters, and wetlands
adjacent to each.
Question 2. Traditionally, open waters have meant waters that are
free from physical obstruction and hence open to navigation by the
public. In addition to the use of the term open waters, the Court also
emphasized the original interpretation by the Corps that ``[i]t is the
water body's capability of use by the public for purposes of
transportation or commerce which is the determinative factor.''
Moreover, the Court explicitly stated, ``The term ``navigable'' has at
least the import of showing us what Congress had in mind as its
authority for enacting the CWA: its traditional jurisdiction over
waters that were or had been navigable in fact or which could
reasonably be so made.'' Such statements appear to limit Federal
regulatory jurisdiction to the same waters which are subject to Federal
navigational servitude.
Does the Justice Department believe that the SWANCC decision limits
Federal jurisdiction under Section 404 to waters subject to Federal
navigational servitude?
Response. The question before the Court in SWANCC was whether the
Corps of Engineers had exceeded its statutory authority under the Clean
Water Act by asserting jurisdiction over isolated, non-navigable,
intrastate waters based on the use of those waters as habitat by
migratory birds. As discussed above, the Supreme Court addressed only
the ``other waters'' subpart of the regulatory definition of ``waters
of the United States.'' See 33 C.F.R. 328.3(a)(3). Moreover, the Court
did not overrule its prior decision in Riverside Bayview Homes, in
which the Court held that Clean Water jurisdiction extends to wetlands
adjacent to other waters. Non-tidal wetlands, of course, are not
typically subject to the navigational servitude.
Question 3. In your testimony you stated that, ``in none of our
post-SWANCC cases have we relied upon the Migratory Bird Rule or any
analogous theory under the ``(a)(3)'' provision as a basis for
defending CWA jurisdiction over a particular site.'' This statement
coupled with your previous statement regarding the Justice Department's
role in ensuring that the Federal Governments legal positions are
consistent with SWANCC would suggest that the regulations found in 33
CFR ' 328.1(a)(3) [sic] are inconsistent with the SWANCC decision.
Does the Justice Department believe that in order to be fully
consistent with the SWANCC decision that Corps regulations defining
waters for purposes of jurisdiction under Section 404 must be revised?
Response. What, if any, revisions to the regulations are necessary
or appropriate is a determination for EPA and the Army Corps of
Engineers to make in the first instance. Those agencies issued an
advance notice of a proposed rulemaking on that issue on January 15,
2003, and a decision not to proceed with rulemaking on December 16,
2003.
______
Responses of Attorney General Thomas Sansonetti to Additional Questions
from Senator Jeffords
Question 1. In the SWANCC Guidance, the Corps and the EPA direct
field staff not to assert jurisdiction over ``isolated, intrastate,
non-navigable waters'' based upon any of the factors of the migratory
bird rule. Your testimony indicates that the Department of Justice,
since the SWANCC case, has not relied upon the Migratory Bird Rule or
any analogous theory under the ``(a)(3)'' provision as a basis for
defending CWA jurisdiction over a particular site. The SWANCC decision
only rejected one part of the migratory bird rule, and did not discuss
the other elements, including the use of a water by endangered or
threatened species or the use of a water for irrigation of crops to be
sold in interstate commerce. On which elements of the SWANCC decision
is the Department of Justice basing its rejection of all elements of
the Migratory Bird Rule and the ``(a)(3)'' prevision? Where in the
SWANCC decision is there is any mention of the other prongs of the
migratory bird rule, or any statement that supports that legal
interpretation?
Response. In none of our post-SWANCC cases have we relied upon the
Migratory Bird Rule, or any analogous theory under the ``(a)(3)''
provision, as a basis for defending CWA jurisdiction over a particular
site. The continued viability of the other prongs of the Migratory Bird
Rule and the elements of (a)(3) following SWANCC are issues that are
appropriately considered by EPA and the Corps of Engineers in the first
instance.
Question 2. In your testimony, you indicate that the Department of
Justice conducted a comprehensive review of the entire docket of Clean
Water Act litigation in response to SWANCC. If you determined that the
basis for jurisdiction in a particular case was undermined by SWANCC,
you ``took appropriate action.'' In your testimony, you provided the
Borden Ranch Partnership v. U.S. Army Corps of Engineers example in
which you withdrew an enforcement claim regarding a particular vernal
pool. Please provide the committee with a complete list of all other
actions the Department took regarding your docket of Clean Water Act
litigation after conducting the comprehensive review described in your
testimony.
Response. SWANCC v. Corps of Engineers (7th Cir. and Northern
District of Illinois)--On remand to the 7th Circuit, the United States
filed a statement that because the only asserted basis for regulatory
jurisdiction was the Migratory Bird Rule, the Court of Appeals should
remand the matter to the District Court for the entry of judgment in
favor of plaintiff. Instead, however, the Court of Appeals accepted
intervenor's request that the District Court be ordered to consider
whether alternative bases for regulating plaintiff s landfill under the
CWA exist. We then took the position in District Court that the Corps
did not intend to assert jurisdiction over the SWANCC landfill and that
judgment should be entered in favor of plaintiff. However, the District
Court instead ordered the parties to file briefs regarding any
remaining bases for CWA jurisdiction. The parties subsequently agreed
to a stipulated dismissal of the lawsuit, and no such briefs were
filed.
United States v. Angelo Tsakopoulos (also known as Borden Ranch v.
Corps of Engineers) (9th Circuit)--This CWA 404 civil enforcement
action involved the ``deep-ripping'' of wetlands. After trial, the
District Court imposed a $500,000 civil penalty and required mitigation
with respect to a number of CWA violations. One set of violations
identified by the District Court involved an isolated vernal pool that
served as habitat for the vernal pool fairy shrimp, a threatened
species. Upon appeal, after SWANCC was decided, we withdrew the portion
of our enforcement action involving that vernal pool. Subsequently,
upon remand, the District Court revised the civil penalty down to
$486,040 to account for the withdrawal of that vernal pool claim.
United States v. Portrait Homes Construction Co. (District of South
Carolina)--Prior to SWANCC, the parties in this CWA 404 civil
enforcement action had lodged a consent decree requiring the defendant
to pay a $10,000 civil penalty, and to conduct restoration with respect
to the filling of 0.63 acres of isolated wetlands. After SWANCC, the
United States withdrew the consent decree and voluntarily dismissed the
complaint.
Forest Guardians v. United States Army (District of New Mexico)--
This CWA citizen suit alleged that the Army violated section 402 by not
having an NPDES permit for discharges of treated sewage into an
isolated playa on the White Sands Missile Range. After SWANCC, the
parties stipulated to the dismissal of the complaint with prejudice.
United States v. Cargill, Inc. (Northern District of California)--
This CWA 402 civil enforcement action involved the disposal of salt-
processing wastes in a bermed non-wetland area located near Mowry
Slough and the San Francisco Bay. After SWANCC, the United States
voluntarily dismissed its enforcement action.
__________
Statement of L. Michael Bogert, Counsel to Idaho Goveror Dirk
Kempthorne
Mr. Chairman and distinguished members of the of the committee: My
name is Michael Bogert, and I am Counsel to Idaho Governor Dirk
Kempthorne.
Unfortunately, the Governor could not join the committee today, but
he asked me to extend his warmest regards to his good friends in the
Senate.
Mr. Chairman and members, I appreciate the opportunity to give you
and the distinguished Senators on the committee Governor Kempthorne's
perspective on the SWANCC decision and what it means to the State of
Idaho.
As an initial matter, Idaho is generally comforted by that section
101 of the Clean Water Act declares that ``it is the policy of Congress
to recognize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution [and] to
plan the development and use of land and water resources.''
This statutory declaration, for Idaho, is the ideological lens by
which we will view any attention by Congress to the Clean Water Act in
the aftermath of the SWANCC decision.
However, we would be remiss if we did not acknowledge how much we
appreciate the chance to even offer our perspective on this important
decision by the Supreme Court to the committee today, as well as to the
Federal executive branch agencies wrestling with this complex issue.
Through the advance notice of proposed rulemaking--or ANPR--the
President has signaled he is approaching this problem from a decidedly
different direction.
Through the ANPR, the Bush Administration has stated that it does
not have all the answers up front, but it wants to sure to ask all of
the right questions. And Mr. Chairman, a little humility by the Federal
Government on this is a good thing.
The Administration is also saying that it is keenly aware that the
SWANCC decision will have an impact on key partners such as the States
in Clean Water Act implementation, and that even before a proposed rule
is in order, the Federal agencies want an idea of what looms on the
horizon for its administrative decisionmaking.
Governor Kempthorne appreciates this approach taken by the
President.
I have submitted the Governor's very brief comments on the ANPR for
purposes of today's record.
To provide the committee with some very brief background, Idaho
does not presently administer a delegated Clean Water Act program under
section 402 for National Pollutant Discharge Elimination System (NPDES)
permits.
We are presently exploring whether an NPDES program makes sense for
our State, so, as of this moment, Idaho is not a participant in this
familiar model of ``cooperative federalism.''
But that doesn't mean we are not accomplished practitioners of both
cooperation and federalism.
Addressing cooperation, just last week we forged a second agreement
in 3 years with the region's Governors on salmon recovery, and this
past legislative session we paved the way under our law for Federal/
State wolf management.
We are pleased to hear today from the Assistant Attorney General
that the Justice Department shares the value of partnering with the
States to advance our mutual interest on environmental protection.
On the federalism side, you will hear no greater champion for
State's rights than Governor Kempthorne.
Indeed, one of the core values we bring to this debate is that the
best achievable results in environmental regulation occur where the
Federal Government not just joins, but partners with State and local
decisionmakers to avoid the consequences of top-down regulation.
Our experience in Idaho is that the best results are achieved from
the ground up.
Accordingly, our first inclination is to reject the notion that in
Idaho, there is suddenly a regulatory ``void'' that must be filled by
the Federal Government in light of the SWANCC decision.
We have often found in discussions with some constituencies that
when the topic of State control over environmental programs is
mentioned, there is a fundamental distrust of putting States in the
driver's seat.
Governor Kempthorne categorically rejects that premise, and if
there is any doubt about the commitment of the Great State of Idaho to
controlling water pollution, let me provide the committee with the
following legislative prose from our State water quality control
statute:
``The legislature, recognizing that surface water is one of the
State's most valuable natural resources, has approved the adoption of
water quality standards and authorized the director of the department
of environmental quality to implement these standards. [I]t is the
purpose of this chapter to enhance and preserve the quality and value
of the surface water resources of the State of Idaho .
In consequence of the benefits to the public health, welfare, and
economy, it is hereby declared to be the policy of the State of Idaho
to protect this natural resource by monitoring and controlling water
pollution.''
Governor Kempthorne signed this legislation in 2001, and I doubt a
stronger commitment to preventing water pollution can be found in any
State statute.
But as the committee and Congress deliberate over its response to
the SWANCC decision, it is important to have a better understanding of
the backdrop of the case and why the Supreme Court ended up taking the
case in the first place.
The petitioner, a coalition of municipalities, had been trying to
secure a non-hazardous landfill site during the mid-1980's. They
purchased a 533-acre site which once accommodated gravel and strip
mining.
In the decade plus long process of working on the project, the
coalition, known as SWANCC, received all the necessary State and local
zoning permits, in addition to a land fill development permit from the
Illinois EPA, as well as passing a review by the Illinois Department of
Conservation, who approved their mitigation plan for certain bird
species.
The petitioners asked the Army Corps of Engineers not once, but on
two separate occasions within a year's period whether they needed
permits under section 404 of the Clean Water Act. Each time the Corps
responded that they had no jurisdiction over the landfill site.
Then, when alerted by an environmental organization that the site
may have briefly been home to some migratory birds, the Corps changed
its mind and asserted that under the ``migratory bird rule,'' the
landfill site included ``waters of the United States'' and that a
section 404 permit was necessary.
SWANCC then applied for the section 404 permit and was denied on
two separate occasions. Along the way, the coalition obtained two
separate water quality permits under section 401 of the Clean Water Act
from the State agencies with responsibility over those programs.
Nonetheless, the Corps twice denied the section 404 permit even
though several years earlier they believed they had no jurisdiction
whatsoever over the land fill.
Those were the facts the Supreme Court had before them when they
considered the migratory bird rule, and the rest is now history in the
Supreme Court Reporter.
Mr. Chairman and Distinguished Senators, as you consider this
issue, it is vitally important that the past sins of the Federal
Government I have just described not be born on your progeny.
Exercise your Commerce Clause authority carefully, and ask if the
answer is really extending the jurisdiction of the Federal Government
to the curbs and gutters of our streets, as is apparently occurring in
San Diego? We don't think this is necessarily the part forward.
Also, does the Corps have the resources necessary to implement such
a program?
However, it is vitally important that Congress consider what the
Supreme Court said in SWANCC.
One argument is that SWANCC was merely a regulatory interpretation
case and that its holding should be narrowly construed by the agencies
and Congress.
However, the Supreme Court went out of its way to dust off its two
major Commerce Clause cases, Lopez and Morrison, and indicated that
this decision also could have gone in that direction.
As you formulate a response to the SWANCC decision, you should be
mindful that the Court's current Commerce Clause jurisprudence lurks
nearby.
From our vantage point in the Governor's Office in Boise, Idaho,
the lessons of Lopez, Morrison and SWANCC are not that Congress cares
more than States about guns in school, violence against women, or water
pollution.
Rather, Governor Kempthorne would submit to his former colleagues
that real achievement in addressing those noble policy goals should
include those in the framework of our Federal system of government who
bring the most promise to achieving results.
In our view, those achievers are States such as Idaho.
Thank you Mr. Chairman and members.
______
Attachment
DIRK KEMPTHORNE, GOVERNOR
April 16, 2003
The Honorable Christine Todd Whitman, Administrator
Environmental Protection Agency
c/o Water Docket
Mailcode 4101T
1200 Pennsylvania Ave., NW
Washington, DC 20460
Re: Docket ID No. OW-2002-0050--Advance Notice of Proposed Rule Making
on the Clean Water Act Definition of ``Waters of the United States''
68 Fed. Reg. 1991 (Jan. 15, 2003) and 68 Fed. Reg. 9613 (Feb. 28,
2003)
Dear Administrator Whitman: The State of Idaho\1\ herby submits the
following comments on the Advance Notice of Proposed Rule Making
(ANPRM), 68 Fed. Reg. 1991 (Jan 15, 2003), and 68 Fed. Reg. 9613 (Feb.
28, 2003)(extension of comment deadline to April 16, 2003), on the
following issues as posed by the United States Environmental Protection
Agency and the United States Army Corps of Engineers:
---------------------------------------------------------------------------
\1\ For purposes of these comments, the ``State of Idaho''
consists of Governor Dirk Kempthorne, the Governor's Office of Species
Conservation (OSC), the Idaho Department of Fish and Game (IDFG), the
Idaho Department of Water Resources (IDWR), and the Idaho Department of
Environmental Quality (IDEQ).
---------------------------------------------------------------------------
1. Whether, and, if so, under what circumstances, the factors
listed in 33 CFR [Sec. Sec. ]328.3(a)(3)(i)-(iii) (i.e., use of the
water by interstate or foreign travelers for recreational or other
purposes, the presence of fish or shellfish that could be taken and
sold in interstate commerce, the use of the water for industrial
purposes by industries in interstate commerce) or any other factors
provide a basis for determining CWA jurisdiction over isolated,
intrastate, non-navigable waters?
2. Whether the regulations should define ``isolated waters,'' and
if so, what factors should be considered in determining whether a water
is or is not isolated for jurisdictional purposes?
I. Introduction
A. Overview of Regulatory Infrastructure
1. Brief Overview of the Clean Water Act
The Clean Water Act (CWA or Act), was intended to ``restore and
maintain the chemical, physical and biological integrity of the
Nation's waters.'' 33 U.S.C. Sec. 1251(a). Federal authority to
regulate waters of the United States under the CWA stems from the
Commerce Clause of the Constitution and extends to ``all waters which
are currently used, or were used in the past, or may be susceptible to
use in interstate or foreign commerce `` See 33 C.F.R.
Sec. 328.3(a)(1).
Section 404 of the CWA defines ``waters of the United States'' in
detail, based primarily on interstate or foreign commerce connections
(which can include use by interstate or foreign travelers for
recreation, among other things). Existing section 404 regulations
include as waters of the United States ``all other waters such as
intrastate lakes, rivers, streams (including intermittent streams),
mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows,
playa lakes, or natural ponds, the use, degradation or destruction of
which could affect interstate or foreign commerce .'' 33 C.F.R.
Sec. 328.3(a)(3).
B. Overview of the SWANCC Decision
1. Facts
In Solid Waste Agency of Northern Cook County v. United States Army
Corps of Engineers, 531 U.S. 159 (2001), (SWANCC), a consortium of 23
suburban Chicago cities and villages developed plans for a disposal
site for baled nonhazardous solid waste. The location for the site was
an abandoned sand and gravel pit operation between Cook and Kane
counties in Illinois.
Before operations could begin, the consortium, SWANCC, had to
secure numerous county and State permits. During this process, SWANCC
contacted the Corps to determine whether a Federal landfill permit was
necessary since the operation included filling some permanent and
seasonal ponds. The Corps initially determined that it lacked
jurisdiction under Sec. 404(a) of the Clean Water Act, which grants the
Corps ``the authority to issue permits 'for the discharge of dredge or
fill material into navigable waters at specified disposal sites.''' 33
U.S.C. Sec. 1344(a).
The Northern Illinois Nature Preserves Commission informed the
Corps that a number of migratory birds frequently occupied the site.
The Corps reversed its previous jurisdiction decision and asserted
jurisdiction under the ``Migratory Bird Rule'' (MBR)\2\ an attempt by
the Corps to clarify the actual reach of 404(a) jurisdiction to include
waters that ``are or would be used as habitat by other migratory birds
which cross State lines.'' The formal decision by the Corps determined
that the seasonally ponded, abandoned gravel mining depressions located
on the project site, while not wetlands, did qualify as ``waters of the
United States.''
---------------------------------------------------------------------------
\2\See 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986). The MBR states
that Sec. 404(a) jurisdiction extends to intrastate waters: ``a.
[w]hich are or would be used as habitat by birds protected by Migratory
Bird Treaties; or b. [w]hich are or would be used as habitat by other
migratory birds which cross state lines . . . .''
---------------------------------------------------------------------------
The Corps refused to issue a section 404(a) permit, after
determining jurisdiction, despite the fact that SWANCC secured the
required water quality certification from the Illinois Environmental
Protection Agency. The Corps maintained that SWANCC had not established
its proposal as the least environmentally damaging, most practicable
alternative for disposal of nonhazardous solid waste; that SWANCC's
failure to set aside sufficient funds to remediate leaks posed an
unacceptable risk to the public's drinking water supply; and that the
impact of the project upon area-sensitive species was unmitigatable
since a landfill surface cannot be redeveloped into a forested habitat.
On appeal, the Seventh Circuit Court of Appeals analyzed the
constitutional question, holding that Congress has the authority to
regulate such waters based upon ``the cumulative impact doctrine, under
which a single activity that itself has no discernible effect on
interstate commerce may still be regulated if the aggregate effect of
that class of activity has a substantial impact on interstate
commerce.'' 191 F.3d 845, 850 (7th Cir. 1999).
The Court of Appeals then turned to the regulatory question and
held that the CWA reaches as many waters as the Commerce Clause allows
and, relying on an earlier Commerce Clause ruling, it therefore
followed that respondents' ``Migratory Bird Rule'' was a reasonable
interpretation of the Act. See id. at 851-52.
2. The Decision in SWANCC
The Supreme Court, in granting certiorari, discussed the contours
of the CWA, including the Corps' expansive jurisdictional view that
section 404(a) extends to waters that ``are or would be used as habitat
by other migratory birds which cross State lines'' under the MBR. The
Court concluded that the Migratory Bird Rule was not fairly supported
by the CWA.
The Supreme Court refused to follow the Corps expansive
interpretation of its jurisdiction under section 404(a) the Clean Water
Act. The articulated issue before the Court was ``whether the
provisions of section 404(a) may be fairly extended to [an abandoned
sand and gravel pit in Northern Illinois which provided habitat for
migratory birds], and, if so, whether Congress could exercise such
authority consistent with the Commerce Clause.'' Id. at 162. The
Supreme Court answered that the Clean Water Act could not be so
expanded.
The SWANCC decision thus eliminates CWA jurisdiction over isolated
waters that are intrastate and non-navigable where the sole basis for
asserting CWA jurisdiction is the actual or potential use of the waters
as habitat for migratory birds that cross state lines in their
migration patterns.
II. Comments
A. The Importance of Isolated Waters
1. Why Are Isolated Waters Important?
In arid and semi-arid regions, isolated waters provide fresh water
oases for wildlife and function as stepping stones for migrating
waterfowl, shorebirds and song birds. Isolated waters are found
throughout Idaho from small desert pools and springs to forest ponds
and wet meadows to subalpine lakes.
Isolated waters are important for the same reasons that other
wetlands are important--because they provide crucial habitat for many
fishes, wildlife and plant species. Wetlands are important for water
quality renovation, flood water storage, shoreline stabilization,
sediment retention, and as vital habitat for numerous fish, wildlife
and plant species. Some isolated waters are especially important
breeding habitats for amphibians and continental waterfowl populations.
2. What is a ``Jurisdictional Wetland?''
Currently, for purposes of jurisdiction under section 404 of the
CWA, an area must meet all three parameters used to define a wetland to
be considered a wetland. These include (1) presence of wetland
vegetation, (2) presence of wetland soils, and (3) wetland hydrology.
33 C.F.R. Sec. 328.3(b). There is no official lower size threshold for
jurisdiction (i.e., all wetlands that meet the three parameters may be
considered). For practical purposes, the Corps in Idaho uses 20 feet in
diameter as a minimum size if the wetland is surrounded by upland or
agricultural lands.
If a number of smaller wetlands were found in a mosaic with other
types of land (upland or agricultural land, for example) then the
mosaic could be considered for jurisdictional purposes even if the
individual wetlands were smaller than 20 feet in diameter. Under
current guidelines (post-SWANCC), recommendations from the Corps field
offices go to the District office for review before the Corps asserts
jurisdiction over isolated wetlands.
B. The Idaho Perspective on the SWANCC Issues
1. The Idaho Department of Environmental Quality
The Idaho Legislature has provided to the Idaho Department of
Environmental Quality (IDEQ) broad authority to develop a system to
safeguard the quality of the waters of the State, including authority
to adopt and enforce rules relating to the discharge of effluent into
the waters of the State, and to adopt and enforce State water quality
standards that designate uses and provide criteria to protect those
uses. Idaho Code Sec. 39-105(e); Sec. Sec. 39-3601--39-3624.
In providing this authority to the IDEQ, the State legislature very
broadly defined ``waters or water body'' to mean ``all accumulations of
surface water, natural and artificial, public and private, or parts
thereof which are wholly or partially within, flow through or border
upon this State.'' Idaho Code Sec. 39-3602(28). See also Idaho Code
Sec. 39-103(16) (defining ``water'' almost identically).
While providing IDEQ authority to regulate water quality with
respect to a very broad definition of waters of the State, the
Legislature also expressed the intent for DEQ to fully meet the goals
and requirements of the Federal Clean Water Act, but through rules not
impose requirements beyond those of the Federal Clean Water Act. It is
unclear, in light of the legislative definition of ``waters,'' whether
this provision in State law limits IDEQ to regulating only those waters
that are regulated under the CWA.
If this provision does limit IDEQ to regulating only within the
limits of Federal jurisdiction under the CWA, the SWANCC decision and
its progeny, as well as any Federal rulemaking that defines CWA
jurisdiction, will control the scope of Idaho's water quality
authority.
2. The Idaho Department of Fish and Game
The Idaho Department of Fish and Game (IDFG) has no statutory
authority to regulate wetlands or the CWA.
However, IDFG personnel review stream alteration permits and
section 404 permit applications, including field inspections, and
provide recommendations to the regulatory agency on permit terms and
conditions. Although IDFG's recommendations are not binding, they often
result in reduced impacts to wetlands and water quality. The SWANCC
decision will not directly impact IDFG programs other than reducing the
number of permit applications reviewed and may reduce some benefits to
wildlife in Idaho.
3. The Idaho Department of Water Resources
Any resulting modifications to the Clean Water Act jurisdiction
resulting from the U.S. Supreme Court's decision in SWANCC will not
directly impact any of IDWR's programs.
Under Idaho's Stream Channel Alteration Act, Idaho Code
Sec. Sec. 42-3801--42-3813, IDWR's jurisdiction is limited by the
definition of ``stream channel'' which means ``a natural watercourse of
perceptible extent, with definite bed and banks, which confines and
conducts continuously flowing water.'' Idaho Code Sec. 42-3802(d). This
definition would not be affected by a change in the definition of
``waters of the United States'' under the CWA.
The Waste Disposal and Injection Well program, Idaho Code
Sec. Sec. 42-3901--42-3919, administered by IDWR, requires the issuance
of a permit to authorize the construction or use of any waste disposal
and injection well. The act defines ``aquifer'' to mean ``any geologic
formation that will yield water to a well in sufficient quantities to
make production of water from the formation feasible for beneficial
use, except when the water in such formation results solely from
injection through a waste disposal and injection well.'' Idaho Code
Sec. 42-3902(1). This program would not be affected by a change in the
definition of ``waters of the United States'' under the CWA.
C. Question One:
Whether, and, if so, under what circumstances, the factors listed
in 33 CFR 328.3(a)(3)(i)-(iii) (i.e., use of the water by interstate or
foreign travelers for recreational or other purposes, the presence of
fish or shellfish that could be taken and sold in interstate commerce,
the use of the water for industrial purposes by industries in
interstate commerce) or any other factors provide a basis for
determining CWA jurisdiction over isolated, intrastate, non-navigable
waters?
Some isolated waters provide important habitat and water sources
for some species of fish and wildlife and associated recreation.
Migratory birds, particularly shorebirds and waterfowl, use
isolated wetlands such as playa lakes as resting and feeding locations
during migrations. Some isolated wetlands in Idaho are streams and
contain sensitive species of fish, amphibians and in one case bull
trout, a fish listed as threatened.
The factors contained in 33 CFR Sec. Sec. 328.3(a)(3)(i)-(iii)
could be an important indicator of appropriate Federal jurisdiction
under the Clean Water Act. The factors described in the present
configuration cannot be summarily dismissed, but, as noted by one
Federal judge reviewing a CWA case who echoed the theme of SWANCC,
``[t]he Commerce power as construed by the courts is indeed expansive,
but not so expansive as to authorize regulation of puddles merely
because a bird traveling interstate might decide to stop for a drink.''
Hoffman Homes, Inc. v. U.S. Envtl. Prot. Agency, 999 F.2d 256, 263 (7th
Cir. 1993) (Manion, J., concurring).
D. Question Two:
Whether the regulations should define ``isolated waters,''' and if
so, what factors should be considered in determining whether a water is
or is not isolated for jurisdictional purposes?
The determination as to whether the regulations should define
``isolated waters,'' and if so, the factors to be considered should be
guided by the fact that Congress in enacting the CWA recognized ``the
primary responsibilities and rights of States to prevent, reduce, and
eliminate pollution, to plan the development and use (including
restoration, preservation, and enhancement) of land and water resources
.'' 33 U.S.C. Sec. 1251(b).
In light of Idaho's current regulatory mechanisms, Idaho recommends
that the EPA and Corps adopt an appropriate regulatory interpretation
of the SWANCC decision in determining jurisdictional wetlands. A
definition of ``isolated waters'' is important because it will provide
certainty to the public regarding what conduct is appropriate under the
Clean Water Act.
The SWANCC decision dealt with placing of fill in an abandoned
gravel and sand pit, a wetland that was clearly created as a result of
mans' activities. Any regulatory gloss to SWANCC should exclude from
the CWA those isolated wetlands that result from mans purposeful or
inadvertent activities, for example, gravel pits, constructed ponds,
leakage from irrigation ditches or canals, water storage facilities or
irrigation ditches, and aquifer recharge sites and wetlands created for
treating irrigation return water. All naturally occurring isolated
wetlands, streams, wet meadows and riparian areas should continue to
receive protection and should be accommodated in the definition.
III. Conclusion
The U.S. Supreme Court decision in SWANCC specifically eliminated
Clean Water Act jurisdiction over isolated, intrastate, non-navigable
waters where the sole basis for asserting CWA jurisdiction is the
actual or potential use of the waters as habitat for migratory birds
that cross State lines.
While SWANCC and the subsequent Federal court decisions raise
significant issues regarding Federal CWA jurisdiction, the CWA clearly
recognizes the traditional authority of States to control sources of
pollution and to plan the use and development of State land and water
resources. 33 U.S.C. Sec. 101(b).
Therefore, the CWA preserves to States the authority to adopt or
enforce standards and limitations respecting discharges of pollutants
or requirements respecting the control or abatement of pollution, as
long as State effluent limitations or other limitations are no less
stringent than those effective under the CWA. 33 U.S.C. Sec. 1370. See
also 33 USCA Sec. 1344(t) (preserving to States the authority to
control the discharge of dredged or fill material in any portion of
navigable waters within the jurisdiction of the State).
As discussed above, Idaho law arguably prohibits Idaho from
regulating waters not regulated under the CWA.
If the Federal agencies eliminate or narrow jurisdiction over
certain water bodies or wetlands, Idaho may be unable to step in and
control water quality issues relating to all of these bodies or
wetlands without an additional grant of authority from the Idaho
Legislature.
Sincerely,
Dirk Kempthorne, Governor
______
Responses of L. Michael Bogert to Additional Questions from Senator
Jeffords
Question 1. How many miles of streams in Idaho are considered
``traditionally navigable?'' What percentage of the waters in Idaho
does this comprise?
Response. There are approximately 18,116 miles of streams in Idaho
considered ``traditionally navigable'' by the State. These streams are
estimated to comprise 19.7 percent of the waters in Idaho.
Question 2. What role do fishing, hunting, and wildlife watching
play in the Idaho economy in terms of dollars and jobs contributed?
Response. Idaho's fish and wildlife heritage, present and future,
cannot be entirely summed up in a discussion of financial facts alone.
However, participation by hunters and anglers (not counting
citizens whose interest in wildlife is strictly as observers) is among
the highest in the Nation. More than one in every three Idahoans
actively hunts or fishes.
Based on the latest reliable information from the Idaho Department
of Commerce, about 197,000 residents and non-residents hunt and 416,000
Idahoans and visitors fish in Idaho annually. The total is more than
the combined populations of Boise, Pocatello, Idaho Falls, Nampa, and
Moscow, Idaho (486,000 vs. 361,141).
Spending by this group adds up to $754 million a year. Wildlife
watchers spend an additional $356 million a year. When combined, the
spending on wildlife related recreation in Idaho exceeds $1.1 billion
annually. For the purpose of perspective, this was almost twice the
cash receipts for Idaho's potato crop in the most recent year studied--
$1 billion vs. $551 million.
State revenue from hunting and fishing alone (sales tax, fuel tax,
and income taxes on related jobs) amounted to $51.5 million, and is the
equivalent of 1,511 teachers' salaries or 9,532 students' annual
education expenses in Idaho. Economists calculate this ``ripple
effect'' on Idaho's economy at $1.22 billion annually.
In the management of fish and wildlife, hunters and anglers pay for
their own programs. The Idaho Department of Fish and Game is funded
almost entirely by licenses and fees and through Federal funds which
are derived from taxes on the sales of selected sporting goods. (A
small percentage of the Department's budget comes form contracts with
Federal agencies.) No State general funds are appropriated to the
Department Fish and Game.
Nonconsumptive use--wildlife watching--also contributes
considerably to the economy of Idaho. About 333,000 Idahoans and
451,000 visitors are estimated to spend a total of more than $356
million in their pursuits. Many of those visitors are, of course, also
hunters and anglers.
Fish and wildlife contribute to the Idaho economy in another way,
although it is more difficult to quantify. Highly skilled professionals
and high tech industry employees--the kind of citizen most able to
choose where they wish to make a living (and pay taxes)--often cite
Idaho's outdoor lifestyle as the deciding factor in their choice to
live here. I have enclosed additional materials that should provide a
deeper perspective into this answer.
Question 3. As I understand it, Idaho does not have any State level
protections that prevent discharges of pollution or dredging and
filling activities in waters not protected by the Clean Water Act and
actually has a law that prevents it from developing regulations to do
so. If this is true, is the State concerned with the potential impacts
to drinking water supplies, and devastation of recreational hunting and
fishing if many or most of Idaho's waters lose protection under the
Clean Water Act?
Response. The State of Idaho is deeply committed to protecting its
waters.
Our State's dedication to controlling water pollution is embodied
in the following legislative prose from the State's water quality
control statute:
The legislature, recognizing that surface water is one of the State's
most valuable natural resources, has approved the adoption of water
quality standards and authorized the director of the department of
environmental quality . . . to implement these standards. . . .
[I]t is the purpose of this chapter to enhance and preserve the
quality and value of the surface water resources of the State of
Idaho. . . . In consequence of the benefits to the public health,
welfare, and economy, it is hereby declared to be the policy of the
State of Idaho to protect this natural resource by monitoring and
controlling water pollution. [Idaho Code Sec. 39-3601 (Michie 2002)
(emphasis added).] A brief overview of the State's water management
infrastructure will provide an appropriate context to answer this
question.
A. Idaho's Water Quality and Water Management Framework
In Idaho, the use and management of water is protected within the
framework of the State constitution. For example, appropriated water in
Idaho is declared subject to regulation by the State as a public use,
[Idaho Const. art. XV, Sec. 1]; the right to divert and appropriate
unappropriated waters ``shall never be denied,'' [Idaho Const. art. XV,
Sec. 3]; and the State water resource agency has its organic genesis
in the State constitution. [Idaho Const. art. XV, Sec. 7].
The Idaho Departments of Environmental Quality (IDEQ) and Water
Resources (IDWR) jointly govern water quality and management through
IDEQ's development and implementation of State water quality standards
and Total Maximum Daily Load allowances (TMDLs), as well as IDWR's
water transfer authority.
The Idaho Legislature has provided to the IDEQ broad authority to
develop a system to safeguard the quality of the waters of the State,
including authority to adopt and enforce rules relating to the
discharge of effluent into the waters of the State, and to adopt and
enforce State water quality standards that designate uses and provide
criteria to protect those uses. See generally [Idaho Code Sec. 39-
105(e) (Michie 2002); Sec. Sec. 39-3601-to-3624 (Michie 2002 and Supp.
2003)].
In providing this authority to the IDEQ, the State legislature very
broadly defined ``waters or water body'' to mean ``all accumulations of
surface water, natural and artificial, public and private, or parts
thereof which are wholly or partially within, flow through or border
upon this State.'' [Idaho Code Sec. 39-3602(28) (Michie 2002)]. [See
also Idaho Code Sec. 39-103(16) (Michie 2002) (defining ``water''
almost identically)].
While providing IDEQ authority to regulate water quality with
respect to a very broad definition of waters of the State, the Idaho
Legislature also intended ``that the State of Idaho fully meet the
goals and requirements of the Federal clean water act and that rules
promulgated under this chapter not impose requirements beyond those of
the Federal clean water act.'' [Idaho Code Sec. 39-3601 (Michie 2002)].
This is commonly referred to as the ``stringency'' requirement under
State law, but it does not limit other State agency authority on
activity protecting water quality.
As authorized by Congress through the Clean Water Act, Idaho has
developed water quality standards and Total Maximum Daily Loads (TMDL).
[See Idaho Code Sec. Sec. 39-3601 to-3612 (Michie 2002 and Supp.
2003)]. Under State law, ``and as required by the Federal Clean Water
Act,'' the IDEQ is required to develop a total maximum daily load to
control point source and non-point sources of pollution. [Idaho Code
Sec. 39-3611 (Michie 2003) (emphasis added)].
Inherent within this authority is the power to identify pollutants
impacting the water body; [Idaho Code Sec. 39-3611(1) (Michie 2003)];
to inventory all point and non-point sources of the identified
pollutant, [Idaho Code Sec. 39-3611(2) (Michie 2003)]; and to develop
pollution control strategies for both point sources and non-point
sources for reducing those sources of pollution, [Idaho Code Sec. 39-
3611(5) (Michie 2003)].
After the TMDL process provided by State law is completed, the
Director of IDEQ shall ``integrate such processes into the State's
water quality management plan developed pursuant to the Federal Clean
Water Act.'' [Idaho Code Sec. 39-3612 (Michie Supp. 2003)].
Accordingly, Idaho's authority to analyze, adopt, and implement
water quality standards and TMDLs--activities which complement the
goals of the Federal Clean Water Act--are vigorously pursued within the
State's statutory construct. All of these activities may be undertaken
in areas where Idaho's environmental values have its highest levels of
interest by our State's outdoor recreationalists.
B. An Additional Tool to Aid Water Quality: House Bill 284
During the 2003 legislative session, Idaho enacted House Bill 284,
which was signed into law by Governor Kempthorne. H.B. 284, 57th Leg.
1st Sess., 2003 Idaho Sess. Laws 806 (enclosed).
House Bill 284 amended the definition of the ``local public
interest'' criterion used to evaluate certain administrative decisions,
including basin water transfers, within Idaho's statutory water
management infrastructure. The ``local public interest'' is ``the
interests that the people in the area directly affected by a proposed
water use have in the effects of such use on the public water
resource.'' [Idaho Code Sec. 42-202B(3) (Michie 2003)].
House Bill 284 also added a new separate ``economic effects''
criterion intended to apply in the event of an out of-basin transfer of
water from one watershed or local area to another. Under Idaho law,
such movement of water may not ``adversely affect the local economy of
the watershed or local area within which the source of water for the
proposed use originates, in the case where the place of use is outside
of the watershed or local area where the source of water originates.''
[Idaho Code Sec. 42-202B (Michie 2003)].
The Director of IDWR may consider trans-basin transfers if it will
not adversely affect the local economy of the original source of the
transfer, which is a new element enacted as a part of House Bill
284.\1\
---------------------------------------------------------------------------
\1\That part of the statute provides in pertinent part that: ``The
director of the department of water resources shall examine all the
evidence and available information and shall approve the change in
whole, or in part, or upon conditions, provided no other water rights
are injured thereby, the change does not constitute an enlargement in
use of the original right, the change is consistent with the
conservation of water resources within the State of Idaho and is in the
local public interest as defined in section 42-202B, Idaho Code, the
change will not adversely affect the local economy of the watershed or
local area within which the source of water for the proposed use
originates, in the case where the place of use is outside of the
watershed or local area where the source of water originates, and the
new use is a beneficial use, which in the case of a municipal provider
shall be satisfied if the water right is necessary to serve reasonably
anticipated future needs as provided in this chapter.'' [Idaho Code
Sec. 42-222(1) (Michie 2003) (emphasis added).]
---------------------------------------------------------------------------
Accordingly, even in Idaho's water management infrastructure,
protection of the types of recreational values identified in the
question above is appropriately considered under State law.
Question 4. If the jurisdiction of the Clean Water Act is narrowed,
mining companies, heavy industries and others, could discharge
pollution directly into wetlands and streams that will flow into
groundwater or downstream surface waters. What will Idaho do to combat
this pollution?
Response. Any narrowing of Federal Clean Water Act authority will
not affect State laws and rules that are not derived from the CWA.
The State Legislature has provided IDEQ and other State agencies
with broad authority to maintain and protect the quality of the State's
groundwater. [See, e.g. Idaho Code Sec. Sec. 39-102(2), (3); 39-120 to
39-127].
The State regulates mining and other specific activities in the
State to ensure protection of natural resources and will continue to
use these laws and its CWA authority to combat water pollution. The
State has great confidence that it has ample authority to protect the
environment from the activities set forth in the question.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
__________
Statement of Richard Hamann, Associate in Law, Center for Governmental
Responsibility, Levin College of Law, University of Florida
RECONCILING SWANCC WITH THE CLEAN WATER ACT
Chairman Crapo, Senator Graham and members of the committee, thank
you for the opportunity to speak to you today about how the decision of
the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers (SWANCC)\1\, can be reconciled with the goals
of the Clean Water Act. I have studied and taught the law and policy of
wetlands regulation for over 20 years and am honored to be here.
---------------------------------------------------------------------------
\1\531 U.S. 159 (2001).
---------------------------------------------------------------------------
So-called isolated wetlands and waters are seldom truly isolated.
As Congress correctly recognized in 1972, water moves in hydrologic
cycles, pollution must be addressed at the source and pollution is more
than adding chemicals to water\2\. Degrading the physical or biological
integrity of water is pollution\3\. Discharging pollutants, whether
they are oil, sewage or clean fill dirt, into bodies of water that are
not navigable in the traditional sense can have severe adverse impacts
on human health and aquatic ecosystems.
---------------------------------------------------------------------------
\2\S. Rep. No. 92-414, p.77 (1972), U.S. Code Cong. & Admin. News
1972, pp. 3668, 3742.
\3\The goal of the Clean Water Act is ``to restore and maintain
the chemical, physical and biological integrity of the Nation's
waters.'' Clean Water Act Sec. 101, 33 U.S.C. Sec. 1251. According to
the House Report, ``the word 'integrity' . . . refers to a condition in
which the natural structure and function of ecosystems is maintained.''
H.R. Rep. No. 92-911, p. 76 (1972).
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A substantial part of the State of Florida, like many other States,
is covered by streams, lakes, ponds, swamps and marshes that do not
meet the traditional tests of navigability\4\ and are not tributary to
waters that meet those tests. Even the Everglades, often characterized
as a ``River of Grass,''\5\ has many areas of wetlands and shallow,
seasonal waterbodies that are geographically remote from traditional
navigable waters and may be hydrologically connected only during high
water conditions. Nevertheless, these areas are essential to the
conservation of the larger aquatic ecosystem and to the quality and
availability of the water on which the Everglades and everyone in South
Florida depend. In the part of Florida where I live, we have numerous
lakes and streams that sustain abundant fish and wildlife resources and
provide recreational opportunities for residents and visitors from
throughout the world. They are also resources of national importance
and are vulnerable to every kind of pollution. In many cases they
discharge to groundwater through sinkholes. Streams and lakes simply
flow into the ground carrying pollutants and become part of our
drinking water supply and the source of our springs. In many cases they
are not navigable or directly connected to traditional navigable waters
and under some interpretations of SWANCC would not receive the
protections of the Clean Water Act or other Federal environmental
legislation. Florida illustrates why Congress defined ``navigable
waters'' as ``waters of the United States''.
---------------------------------------------------------------------------
\4\The 11th Circuit has redefined navigability in the narrowest
possible terms, holding that Fisheating Creek was not navigable for
regulatory purposes because it was not part of a continuous, interstate
highway for waterborne commerce. Lykes Bros. v. U.S. Army Corps of
Engineers, 64 F.3d 630 (11th Cir. 1996).
\5\Marjory Stoneman Douglas, THE EVERGLADES: RIVER OF GRASS
(1947).
---------------------------------------------------------------------------
Prior to 2001, there had been strong judicial support for
comprehensive water pollution control including restrictions on the
discharge of dredged or fill material to wetlands. The term ``waters of
the United States'' had been given the expansive interpretation
necessary to implement the intent of Congress.\6\
---------------------------------------------------------------------------
\6\U.S. v. Eidson, 108 F.3d 1336 (11th Cir. 1997); U.S. v.
Holland, 373 F. Supp. 665 (M.D. Fla. 1974).
---------------------------------------------------------------------------
The decision in SWANCC was a setback to the protection of water
quality, not only from dredged or fill materials, but also from oil,
toxics and conventional pollutants. SWANCC has been soundly criticized
as an example of conservative judicial activism. \7\ Those of us who
study and implement the Clean Water Act have struggled to interpret the
opinion and to reconcile it with previous decisions that were not
overturned and with the language, structure and intent of the Clean
Water Act. The lower Federal courts have diverged in their
interpretations. Most courts have interpreted SWANCC as being of very
limited application, eliminating Federal jurisdiction only over those
waters that are hydrologically isolated and subject to Federal
regulation only through use by migratory birds. \8\ That is the
interpretation originally favored by the Federal agencies\9\ and
consistently advocated by the Department of Justice in the briefs filed
in appeals of many of the lower court rulings. \10\ Other courts have
gone beyond the specific holding in SWANCC and ruled that the Clean
Water Act does not regulate the discharge of pollutants in areas that
are not directly and closely connected to traditional navigable waters.
\11\ Most of these rulings are by lower courts and on appeal by the
Department of Justice. The Corps of Engineers and Environmental
Protection Agency have issued new guidance on the interpretation of
SWANCC and initiated rulemaking on the definition of navigable waters.
\12\ Some development interests believe rulemaking is warranted to
restrict Clean Water Act jurisdiction. \13\
---------------------------------------------------------------------------
\7\See e.g., Richard J. Lazurus, Environmental Law and the Supreme
Court: Three Years Later, 19 Pace Envtl. L. Rev. 653 (2002).
\8\See e.g., U.S. v. Krilich, 303 F.3d 784 (7th Cir. 2002), cert.
denied 123 S. Ct. 1782 (2003); Headwaters v. Talent Irrigation
District, 243 F.3d 526 (9th Cir 2001); U.S. v. Interstate General Co.,
152 F. Supp. 2d 843 (D. Md. 2001), aff'd 2002 U.S. App. WL 1421411 (4th
Cir. 2002); U.S. v. Buday, 138 F. Supp. 2d 1282 (D. Mont. 2001).
\9\Gary S. Guzy, General Counsel, U.S. Environmental Protection
Agency and Robert M. Anderson, Chief Counsel, U.S. Army Corps of
Engineers, Memorandum: Supreme Court Ruling Concerning CWA Jurisdiction
over Isolated Waters (January 19, 2001).
\10\See e.g., United States Brief in Response to Defendant's
Motion for Reconsideration and in Preparation for Site Visit, p.7,
United States of America v. James S. Deaton, Civil No. MSJ-95-2140,
U.S. District Court, Maryland.
\11\See e.g., Rice v. Harken Exploration Co., 250 F.3d 264 (5th
Cir. 2001); U.S. v. Rapanos, 190 F. Supp 2d 1011 (E.D. MI, 2002),
appeal pending No. 02-1377 (6th Cir.); U.S. v. Newdunn Assoc., 195 F.
Supp 2d 751 (E.D. Va. 2002), appeal pending, No. 02-1594 and 02-1480
(4th Cir.).
\12\Corps of Engineers and Environmental Protection Agency,
Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory
Definition of ``Waters of the United States'', 68 Fed. Reg. 1991,
January 15, 2003. Appendix A of the ANPR is a guidance document for
interpreting SWANCC issued by Robert E. Fabricant, General Counsel,
Environmental Protection Agency and Steven J. Morello, General Counsel,
Department of the Army.
\13\For the view that SWANCC is based on a correct interpretation
of congressional intent, see Virginia S. Albrecht and Stephen M.
Nickelsburg, Could SWANCC Be Right? A New Look at the Legislative
History of the Clean Water Act, 32 ELR 11042-11058 (Sept. 2002).
---------------------------------------------------------------------------
Conservation organizations are concerned that the notice of
rulemaking implies too broad an interpretation of SWANCC and that the
guidance memorandum is more restrictive of jurisdiction than is
warranted.\14\ Because the guidance memorandum only requires referral
to headquarters when asserting jurisdiction, they fear that decisions
to refrain from regulation are encouraged. Because there is no process
to document the decision not to regulate an area, there is no way to
know how many acres of wetlands are being lost through Federal
inaction, by what rationales, and with what ecological consequences.
---------------------------------------------------------------------------
\14\See National Wildlife Federation et. al, Comments for the EPA
Water Docket, OW-2002-0050, Advance Notice of Proposed Rulemaking on
the Clean Water Act Regulatory Definition of ``Waters of the United
States'', April 16, 2003; Jay Austin, No Need for EPA to Act After
Court Ruling, The Environmental Forum 52-53 (May/June 2003).
---------------------------------------------------------------------------
The Court in SWANCC said navigable waters cannot be read completely
out of the Act. It supported regulating those waters that have a
``significant nexus'' to navigable waters and wetlands that are
``inseparably bound up with waters of the United States.'' It did not
specify, however, how close the connection to navigable waters must be.
In U.S. v. Riverside Bayview Homes\15\, the Court indicated a
willingness to defer to the ``ecological judgment'' of the Federal
agencies in assessing the importance of specific areas to the overall
integrity of aquatic ecosystems\16\.
---------------------------------------------------------------------------
\15\474 U.S. 121 (1985).
\16\474 U.S. at 134-135.
---------------------------------------------------------------------------
Rather than overreacting to SWANCC and adopting the most expansive
interpretation of the case, the Federal agencies should continue to
argue for a narrow interpretation of SWANCC. The Supreme Court has
demonstrated a willingness to retreat from the language in opinions
authored by some of its more extreme members. For example, in Palazzolo
v. Rhode Island\17\, the Court resurrected long-standing tests for
determining regulatory ``takings'' that had seemingly been rejected in
the earlier opinion authored by Justice Scalia in Lucas v. South
Carolina Coastal Council.\18\ The limitations on citizen suits of Steel
Co. v. Citizens for a Better Environment\19\, were subsequently
retracted in Friends of the Earth v. Laidlaw Environmental
Services\20\.
---------------------------------------------------------------------------
\17\533 U.S. 606 (2001).
\18\505 U.S. 1003 (1992).
\19\523 U.S. 83 (1998).
\20\528 U.S. 167 (2000).
---------------------------------------------------------------------------
Rather than unnecessarily accepting unwarranted limits on the
jurisdiction of the Clean Water Act, the agencies should develop the
case to protect waters that are vital to the integrity of aquatic
ecosystems and defend it in the Federal courts. That process is, to
some degree, now occurring, and should not be preempted by premature
regulatory action.
The ``ecological judgment'' of the agencies must be well-grounded
in science. Numerous studies have supported the ecological value of
``isolated'' waters and wetlands. Congress should support the agencies
in continuing to develop sound science and apply it making regulatory
decisions.
Florida is better able than many States to withstand a curtailment
of Federal wetlands jurisdiction. Most States have no authority for
regulating isolated wetland and all States depend on the Federal
programs. Wetlands are best protected when State and Federal agencies
support each other\21\. Florida regulates most so-called isolated
waters and wetlands under State law, but there are significant adverse
consequences to losing the Federal participation in protecting all of
our nation's waters. Florida has failed to implement a wetlands
regulatory program in the Panhandle, where promoters have begun hyping
the ``Great Northwest'' and development is booming. Many thousands of
acres of our rarest wetlands in that area have no protection without
Federal regulation. In other parts of the State, Federal regulation is
a critical supplement and backstop to the system of State wetland
protections. The protection provided under Florida law to the wetlands
habitat of endangered and threatened species is much less than that of
the Endangered Species Act. Florida has nothing similar to the National
Environmental Policy Act (NEPA) and therefore no requirements to
comprehensively consider and disclose the direct, indirect and
cumulative impacts of development decisions. Florida has weaker
requirements for the use of practicable alternatives and is in the
process of adopting a rule to weaken wetland mitigation requirements.
---------------------------------------------------------------------------
\21\Jon Kusler, ``Impinging on the States''? We Don't Think So,
The Environmental Forum, 55-56 (May/June 2003).
---------------------------------------------------------------------------
Finally, Florida's natural resources are affected by the decisions
made in other States. Much of our wildlife migrates between Florida and
other States and depends on the integrity of wetlands outside our
borders. Many of Florida's rivers flow from Georgia and Alabama. The
Suwannee and the St. Marys, for example, have their origins in the
Okeefeenokee Swamp. A company is proposing to mine 300 acres of
``isolated'' wetlands adjacent to that National Wildlife Refuge that
are not regulated under State law and will not be regulated by the
Corps of Engineers. If the Okeefeenokee is degraded\22\, two of
Florida's most famous rivers are at risk.
---------------------------------------------------------------------------
\22\The Department of Interior has expressed significant concern
over the hydrologic impact of mining adjacent to the Okeefeenokee
National Wildlife Refuge.
---------------------------------------------------------------------------
Congress could act to clarify the extent of Clean Water Act
jurisdiction. Simply deleting any reference to navigability as a
jurisdictional constraint would resolve the issue of statutory
interpretation. Indeed, S. 473, The Clean Water Authority Restoration
Act, introduced in February 2003, would accomplish this result and is
the ideal solution.
Even without new legislation, the Environmental Protection Agency
and the Corps of Engineers could clarify the definition of ``waters of
the United States'' in several important respects. They could
eliminate, for example, the need to show that the degradation of a
particular water affects interstate commerce. Dredging and filling are
economic activities with substantial effects on interstate commerce and
should be regulated as such. The agencies could clarify that
tributaries include any system of artificial or natural streams,
ditches, drains, swales, arroyos, aquifers or other drainage features
that is reasonably likely to convey water to navigable waters. They
could define navigable waters to include waters that used or
susceptible of use for recreational purposes. They could define the
concept of adjacency to ensure that any waters or wetlands that bear a
significant ecological relationship to navigable waters are regulated.
Substantially revising a regulatory definition that has worked
effectively and withstood many legal challenges, however, seems
premature, especially if the effect is to reduce the geographic scope
of the Clean Water Act beyond that specifically required by the narrow
holding of SWANCC. The importance of the nation's waters is not defined
by navigability. That fact was clearly recognized by Congress in 1972
and again in 1977. The discharge of oil, toxic substances or untreated
sewage into an ``isolated'' wetland or body of water, or a remote
stream, can have devastating consequences for human health and the
environment. When the Supreme Court is presented with a case involving
more ecologically compelling facts than an abandoned gravel pit, it may
recognize the importance of upholding the intent of Congress to protect
the integrity of all of the nation's waters. It may also choose to
further curtail Federal authority, but it has not done so yet and we
should not assume that it will do so in the future.
______
Responses of Richard Hamann to Additional Questions from Senator Graham
Question 1. In your opinion, do we adequately recognize the value
of our wetlands?
Response. I believe the public recognizes the great value of
wetlands for water quality enhancement, water storage and flood
attenuation, groundwater recharge, fish and wildlife habitat,
aesthetics and recreation. Some interests see them primarily as
obstacles to land development. In my opinion, our political
institutions do not adequately recognize the value of our wetlands. If
they did, the debate in Congress would be about how to strengthen and
improve the protection of wetlands by encouraging the development of
watershed plans and clearly regulating drainage activities; we would
not be losing on average 58,000 acres of wetlands every year to
dredging, filling and drainage.
Question 2. In your testimony you said Congress could clarify the
intended scope of the Clean Water Act by simply removing the word
``navigable'' from the statute. If Congress did that, what would
prevent the Corps from asserting jurisdiction over every puddle, or
every crease in the ground that catches rainwater during a storm?
Response. By removing the word ``navigable'' from the statute
Congress would be simply restating the congressional intent that it
expressed in 1972 by defining ``navigable waters'' as ``waters of the
United States'', a definition that excluded any reference to
navigability. 33 U.S.C. Sec. 1362(7). In applying that definition, the
Corps of Engineers (Corps) and Environmental Protection Agency (EPA)
have carefully delineated those kinds of waters that would be subject
to regulation, including all navigable and tidal waters, their
tributaries and adjacent wetlands. They have asserted jurisdiction over
``other waters `` whose use, degradation or destruction could affect
interstate or foreign commerce. 33 C.F.R. Sec. 328.3(a). Jurisdiction
is limited by the commerce clause and the purposes of the Clean Water
Act (CWA).
In some cases the agencies have attempted to regulate ponds and
wetlands that are seasonally wet or streams that flow only
intermittently. They have sometimes regulated streams and waterbodies
that are not directly and continuously connected to navigable waters.
The reason they have done so is that in many cases these kinds of
waters are critically important parts of the aquatic ecosystem. They
may serve as wildlife habitat during critical portions of a species
life cycle. Many waterfowl and amphibians, for example, breed in
isolated or seasonal ponds and wetlands. Wading birds, such as the
endangered wood stork feed in such areas. In other cases, seasonal or
intermittent waters are vital to maintaining the quality of larger
waters that receive drainage from those areas. EPA and the Corps
consider the specific facts relative to a specific body of water before
determining whether there is jurisdiction over that particular place as
provided for in the agency rules. They have never asserted jurisdiction
over ``every puddle, or every crease in the ground''. In the event they
did, there is an administrative process for reviewing the
jurisdictional determination and having it reversed. 33 C.F.R. Part
331.
Question 3. Could you please explain what aspects of the CWA will
be affected by the SWANCC decision, and what those effects might be?
Response. The decision in Solid Waste Authority of Northern Cook
County vs. United States, 531 U.S. 159 (2001) (SWANCC) limits the
jurisdictional reach of the CWA. Although there is some debate over the
extent of the limitation, the geographic extent of regulatory
jurisdiction is not an extensive as it was before the Supreme Court's
decision. To the extent that SWANCC limits the extent of CWA
jurisdiction, it does not do so only for the Section 404 wetlands
regulatory program. It also limits CWA jurisdiction over the discharge
of toxic chemicals, feedlot wastes, stormwater runoff and other kinds
of pollutants. It limits the authority of EPA to require States to
develop and implement water quality standards and Total Maximum Daily
Loads for point and nonpoint sources of pollutants. Because many State
programs are dependent on Federal definitions or are implemented
through Section 401 certifications, State wetlands and water quality
programs are limited. Because jurisdiction under the Oil Pollution Act
(OPA) is the same as that under the Clean Water Act, discharges of oil
to surface waters may not be remedied or punished. The unregulated
discharge of pollutants may now occur in new areas.
Question 4. Are there currently CWA exemptions covering normal
agricultural practice, and would those exemptions be affected by the
Clean Water Authority Restoration Act, as proposed?
Response. The CWA currently contains extensive agricultural
exemptions. For the purposes of Section 404, normal farming practices
have a very broad exemption, provided they do not have the affect of
reducing the reach of navigable waters. 33 U.S.C. Sec. 1344(f). Return
flows from irrigated agriculture and agricultural stormwater drainage
are exempt from the same kinds of regulation as are other discharges of
pollutants. 33 U.S.C. Sec. Sec. 402(l), 502(14).
The proposed Clean Water Authority Restoration Act of 2003 (S. 473)
would have no affect whatsoever on any of the agricultural exemptions.
It merely codifies the regulatory definition of waters of the United
States that EPA and the Corps have been using for many years.
Question 5. During the hearing, Mr. Pierce presented photographs of
what he said were instances where the Corps asserted Sec. 404
jurisdiction. Those photos generally depicted water management
structures related to working farmland, or arid areas. Could you help
us understand why it might have be reasonable for the Corps to assert
jurisdiction in the cases such as those presented by Mr. Pierce?
Response. It is often possible to portray regulation as
unreasonable by presenting images or other information that fails to
convey an accurate impression of the circumstances. It would be
necessary to objectively review the case studies presented to determine
whether they were accurately portrayed and to understand the rationale
for asserting jurisdiction. Several images, however, raised questions
in my mind. There was one image of a forested area over which the
agencies had asserted jurisdiction. It appeared very dry. One could
clearly see, however, the distinctive water lines on the trunks of the
trees that indicate the site is regularly inundated for extensive
periods of time. It appeared that a misleading impression was created
by showing dry season conditions. There was at least one image of a dry
wash in a desert area. It appeared bone dry at the time the photograph
was taken but one could plainly see the effects of flowing water in the
distribution of sand in the channel, the cutting of banks etc. An
experienced person would understand how water flowing in that channel,
however intermittently, could transport pollutants, threaten flood
damage, and otherwise affect the interests of the Nation in the waters
of the U.S. Because they tend to retain moisture, such areas are often
among the most important areas of wildlife habitat in the desert
environment.
There were also views of farmland over which the agencies had
allegedly asserted jurisdiction. Approximately 80 percent of our
wetland losses have occurred due to agricultural conversions, so these
areas may have been more functional and recognizable as wetlands before
farming practices began. In addition, farmers sometimes plant areas
that are infrequently wet, hoping for a dry year or to harvest before
the water returns. Such practices can damage wetlands that are valuable
wildlife habitat and cause pollution of other waters. In other cases,
unregulated drainage activities may have degraded wetlands. A closer
examination of the facts is needed.
Question 6. During the hearing, panel members mentioned three ways
to resolve the confusion about CWA jurisdiction: 1) Leave it to the
courts; 2) EPA/Corps rulemaking; and 3) legislation. Could you
summarize the pros and cons of these three options? Which of these
options makes the most sense?
Response. Congressional or administrative action would, presumably,
be intended to resolve any uncertainty or regulatory gaps created by
the SWANCC decision. Leaving the issue to the courts would reduce the
chances of premature and unnecessary legislative or administrative
action premised on incorrectly predicting the course of judicial
interpretation. By allowing the courts to further define the issues,
the real scope of the problem to be addressed would be more apparent.
However, there would be uncertainties and litigation expenses for both
resource protection and development interests for some period.
Rulemaking by EPA and the Corps could alleviate some of the
uncertainty, but seems certain to introduce additional confusion over
the meaning of new rules. Rulemaking also risks overreacting to the
SWANCC decision and administratively eliminating jurisdiction over
important areas based on reading the case too broadly and going beyond
what is required by the courts. Because SWANCC was decided on
legislative interpretation, legislation is the easiest way to correct a
mistaken interpretation. If Congress cannot act simply and directly,
however, the issue is likely to become further confused.
Enacting the Clean Water Authority Restoration Act of 2003 (S. 473)
would make the most sense for those interested in maintaining pre-
SWANCC jurisdiction. Rulemaking makes the most sense for those
interested in limiting jurisdiction because they have the opportunity
to adopt rules that extend the ruling in SWANCC. To those who are
concerned with maintaining wetlands protection, continued
interpretation and application of the existing rules make the most
sense, assuming they have little confidence in the commitment of
Congress or the administration to strengthen or maintain existing
levels of environmental regulation.
Question 7. Under the Corps' current policy, field offices must
consult with HQ before asserting Sec. 404 jurisdiction under certain
circumstances, but not when they choose not to assert jurisdiction.
What are the possible impacts of that policy?
Response. That policy creates an obvious bias against asserting
jurisdiction. The staff who make these determinations in the field are
generally overworked, underpaid and subject to intense political
pressure. By asserting jurisdiction, the staff member instantly creates
the additional work of compiling whatever information is required to
justify the decision, writing a report to that effect, and responding
to questions and requests for additional information. By making it more
difficult to assert regulatory jurisdiction than not, the agency is
effectively discouraging staff from fully implementing the authority of
the CWA. Perhaps more importantly, the staff member may be subtly
pressured to ``back down'' on jurisdictional determinations due to
concerns about job tenure or advancement. The informal decision of a
staff member to not assert jurisdiction does not carry similar
penalties.
Question 8. During your testimony you mentioned that when the Corps
declines jurisdiction there is no record of an action taken, and
therefore no record of the effects of those decisions. Could you
elaborate on what this means?
Response. When jurisdiction is asserted a file is created and the
agencies collect data about the acreage and locations of wetlands, the
specific areas where discharges may be allowed and any mitigation that
is required. It is thus possible to gain some understanding of whether
the goal of ``no net loss'' is being achieved in the regulatory
process. If an agency staff member learns about an activity occurring
in wetlands through observation, citizen complaints or reports from
other agencies and informally determines that there is no jurisdiction,
that decision is not similarly documented and reported. Therefore,
there is no way to review the agency files to determine how many
thousands of acres of wetlands are being lost, with what consequences
and on what basis. There is no record of a final agency action for
review by Congress, citizens groups or anyone else who may be concerned
the agencies are not fully implementing the statutes.
Question 9. With respect to the protection of our nations waters,
could you compare CWA protections prior to the SWANCC decision, what
may occur under the a narrow interpretation of SWANCC and a broad
interpretation of SWANCC?
Response. The most extensive protection of our nation's water
existed prior to the SWANCC decision. Relying on Riverside Bayview and
numerous decisions by lower courts, the EPA and Corps of Engineers
regulated tidal waters, navigable waters, tributaries to those waters
and adjacent wetlands. Generally, groundwater was not regulated.
Relying on the intent of Congress to regulate to the extent permitted
by the Commerce Clause, the agencies also regulated ``other waters''
whose use or destruction could affect interstate commerce. The class of
``other waters'' included:
(3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters:
(i) Which are or could be used by interstate or foreign travelers
for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold
in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purpose by
industries in interstate commerce. 33 C.F.R. Sec. Sec. 328.3(a)(3)
In the preamble to a major rulemaking in 1986, the Corps also
stated its intent to include within the list of examples of ``other
waters'', waters
a. Which are or would be used as habitat by birds protected by
Migratory Bird Treaties; or
b. Which are or would be used as habitat by other migratory birds
which cross State lines; or
c. Which are or would be used as habitat for endangered species; or
d. Used to irrigate crops sold in interstate commerce. 51 Fed. Reg.
41206 (Nov. 13, 1986).
The jurisdictional determination that was overturned in SWANCC
specifically relied on the use of hydrologically isolated, abandoned
gravel pits by migratory birds as the basis for regulation i.e. parts a
and b of the so-called ``Migratory Bird Rule''. The Supreme Court
specifically stated,
We hold that 33 CFR Sec. 328.3(a)(3) (1999), as clarified and
applied to petitioner's balefill site pursuant to the ``Migratory Bird
Rule,'' 51 Fed. Reg. 41217 (1986), exceeds the authority granted to
respondents under Sec. 404(a) of the CWA. 531 U.S. at 174.
The narrow reading of SWANCC would apply that holding literally
and, under that interpretation, only jurisdictional determinations
based on the use of ``other waters'' by migratory birds would be
invalid. Given the importance of prairie potholes, playa lakes, vernal
pools and other ``isolated'' waters to waterfowl, migratory birds and
other protected birds, even the narrowest interpretation of SWANCC will
result in a significant curtailment of regulatory protection.
Jurisdiction could still be based on use by endangered species, use for
irrigation of crops sold in interstate commerce, or any of the other
factors listed as examples of how a waterbody affects interstate
commerce. A slightly broader reading would eliminate jurisdiction based
on any of the examples given in the 1996 regulatory preamble. The
elimination of jurisdiction for ``other waters'' used as habitat for
endangered species could have severe adverse effects on the protection
of habitat for many species.
An even broader interpretation would eliminate jurisdiction over
any of the ``other waters'' based on effects on interstate commerce.
This interpretation is based on language in the majority opinion
emphasizing use of the term ``navigable''. For example, the Court noted
there was a ``significant nexus'' between the wetlands at issue in
Riverside Bayview and navigable waters. 531 U.S. at 167-168. Although
it declared that the term ``navigable'' might have ``limited effect'',
the Court stated concern for ``reading the term 'navigable waters' out
of the statute.'' 531 U.S. at 172. It thus might be argued that unless
some connection can be shown to ``navigable waters'' as traditionally
defined, the CWA does not provide jurisdiction. An impact on interstate
commerce would not suffice. An even larger class of wetlands and
waterbodies that are not contiguous, adjacent or tributary to
traditional navigable waters would thus be excluded from the regulatory
reach of the CWA. In this connection is should be noted that waters
that are useful for navigation may not be considered ``navigable'' by
certain Federal courts. Lykes Bros. v. U.S. Army Corps of Engineers, 64
F. 3d 630 (11th Cir. 1996).
The impact of eliminating jurisdiction over so-called isolated,
non-navigable waters would be extremely severe. The State of Florida
has estimated that 806,728 acres of wetlands in the Panhandle would be
eliminated from regulatory jurisdiction through application of that
interpretation. Other States report similar effects. The Public Speaks
Out: Comments from the Federal Docket, 25 NATIONAL WETLANDS NEWSLETTER
13 (July August 2003).
The broadest and most limiting interpretations are based on the
notion that there must be a ``significant nexus'' between the regulated
area and navigable waters. They specifically reject the regulation of
wetlands, ponds or streams that are not adjacent to open, navigable
waters or directly, naturally and continuously connected to navigable
waters. Connections by intermittent streams or other seasonal waters
would not suffice. See e.g. Rice v. Harken, 250 F.3d 264 (5th Cir.
2001) (no jurisdiction over discharge of oil to a small, seasonal
tributary to navigable waters); U.S. v. Newdunn Assoc., 195 F. Supp.
751 (E.D. Va. 2002), rev'd Treacy v. Newdunn Assoc., 344 F.3d 407 (8th
Cir. 2003) (wetlands connected to navigable waters by intermittent flow
through 2.4 miles of natural streams and manmade ditches held
nonjurisdictional by District Court).
The implications of such interpretations are staggering. The only
jurisdiction that would be left is over navigable and tidal waters and
their perennial, natural tributaries, and wetlands that are contiguous
to those bodies of water where they are ``open''. EPA Region III has
reportedly concluded that such an interpretation would threaten over
one million acres of wetlands in just five mid-Atlantic States. BNA,
U.S. Law Week, Vol 72, No. 9, p 2138 (Sept. 16, 2003). Ephemeral or
intermittent streams are of vital importance to the functioning of
larger river networks. Judith L. Meyer, Small Streams Are Indispensable
Waters, 25 NATIONAL WETLANDS NEWSLETTER 7 (July August 2003).
__________
Statement of Robert J. Pierce, Ph.D., Wetland Training Institute, Inc.
Mr. Chairman and members of the subcommittee, thank you for this
opportunity to speak today on this very important topic. In January,
1989, after 14 years with the Corps of Engineers (Corps), the last
seven in the Regulatory Branch at Corps Headquarters, I and a group of
other wetland resource professionals and a former Department of Justice
attorney left Federal service and formed the Wetland Training
Institute, Inc. (WTI) to provide both the public and private sector
with water resource training and reference tools.
While with the Corps, I was principal technical monitor for the
Wetlands Research Program and two research programs dealing with
contaminated dredged material, was proponent for two wetland training
courses, routinely taught in two other courses on regulatory policy,
was responsible for the continued development of the Corps' wetland
delineation procedure and was one of the three Corps representatives on
the committee which developed the 1989 Manual for Identifying and
Delineating Jurisdictional Wetlands (1989 Manual). In addition, I
drafted many policy documents, provided technical and policy guidance
to its districts and divisions and represented the Corps at numerous
meetings within the government, professional societies and the general
public.
During the last dozen years, I have taught wetland delineation and
jurisdictional policy to thousands of individuals in both the public
and private sectors. In addition, as a consultant with Wetland Science
Applications, I have applied the delineation and permitting process to
real life projects proposed by the regulated public. I am a
Professional Wetland Scientist and Certified Wetland Delineator. I have
conducted wetland work in 37 States and the Territory of Guam. I have
seen the wide variety of areas that technically qualify as true
wetlands as well as the types of areas which often are regulated as
wetlands but that differ little functionally from uplands of similar
habitat type and, in my opinion, do not actually satisfy the 1987
Delineation Manual. Increasingly in recent years, I have been called
upon to provide expert witness testimony for citizens being prosecuted
under the Clean Water Act (CWA). I have spent my entire professional
career working with the Federal wetland permitting program.
The Section 404 program has become more draconian as time has
matured it. Previous Congresses have been unwilling to make meaningful
changes and the executive branch has continuously expanded its
jurisdiction onto private lands and at the same time reduced the
effectiveness of the permitting program by making it so convoluted and
complex that it is a full-time job to sort it out. Until the recent
Supreme Court Ruling on SWANCC and the DC Circuit Ruling on Tulloch,
the Judicial Branch has most often ``given deference'' to the executive
branch and furthered tightened the noose around the public's collective
neck.
As the SWANCC decision has correctly pointed out, under the CWA and
the Constitution, there are limits to what the Federal Government can
regulate. Ours is a three-branch government. It is not for the
executive branch to write laws or ignore judicial rulings. Yet for
years, the executive branch has continuously and inconsistently altered
its jurisdictional limits and regulation of private lands without any
change in mandate from Congress. The Judicial took the Executive to
task in its decision on the ``Tulloch Rule:''
In a press release accompanying the adoption of the Tulloch Rule,
the White House announced: ``Congress should amend the Clean Water Act
to make it consistent with the agencies' rulemaking.'' White House
Office on Environmental Policy, Protecting America's Wetlands: A Fair,
Flexible, and Effective Approach 23 (Aug. 24, 1993). While remarkable
in its candor, the announcement contained a kernel of truth. If the
agencies and NWF believe that the Clean Water Act inadequately protects
wetlands and other natural resources by insisting upon the presence of
an ``addition'' to trigger permit requirements, the appropriate body to
turn to is Congress. [American Mining Congress v. United States Army
Corps of Engineers, 951 F.Supp. 267 (D.D.C. 1997); aff'd sub nom,
National Mining Association v. United States Army Corps of Engineers,
145 F.3d 1339 (D.C. Cir. 1998)].
Since the ``migratory bird rule'' was shot down by the Supreme
Court, the ``migratory molecule rule'' has risen to take its place. The
new mantra for many Corps districts is ``follow the drop of water.'' If
the ordinary high water mark (OHWM) is no longer perceptible--follow
the drop of water. If sheet flow might occur over upland areas--follow
the drop of water. If water flows through a roadside ditch--follow the
drop of water. If the water flows through a stormwater system (or what
EPA might euphemistically call an ``underground ditch'')--follow the
drop of water. If an old aerial photograph or topographic map gives the
slightest hint that a natural channel might have been located anywhere
in the vicinity--follow the drop of water.
There are those that argue that there are virtually no isolated
wetlands--most are connected either by infrequent sheet flow across the
surface or by groundwater. The technically correct statement, however,
is that there are virtually no isolated ``lands,'' whether wet or not.
Technically, it is well-established that all water is interconnected on
the earth. The ``hydrologic cycle'' has been recognized by hydrologists
for decades and constitutes the starting point for every published
general discussion of hydrology (e.g., Dunn and Leopold 1978, Heath
1982, and Leopold 1994). Winter et al. (1999) provides a simplified
diagram (Figure 1) and discussion of the interactions of the various
``pools'' of water that comprise the cycle. They state:
The hydrologic cycle describes the continuous movement of water
above, on, and below the surface of the Earth. The water on the
Earth's surface-surface water-occurs as streams, lakes, and
wetlands, as well as bays and oceans. Surface water also includes
the solid forms of water--snow and ice. The water below the surface
of the Earth primarily is groundwater, but it also includes soil
water.
The hydrologic cycle commonly is portrayed by a very simplified
diagram that shows only major transfers of water between continents
and oceans, as in Figure 1. However, for understanding hydrologic
processes and managing water resources, the hydrologic cycle needs
to be viewed at a wide range of scales and as having a great deal
of variability in time and space. Precipitation, which is the
source of virtually all freshwater in the hydrologic cycle, falls
nearly everywhere, but its distribution is highly variable.
Similarly, evaporation and transpiration return water to the
atmosphere nearly everywhere, but evaporation and transpiration
rates vary considerably according to climatic conditions. As a
result, much of the precipitation never reaches the oceans as
surface and subsurface runoff before the water is returned to the
atmosphere. The relative magnitudes of the individual components of
the hydrologic cycle, such as evapotranspiration, may differ
significantly even at small scales, as between an agricultural
field and a nearby woodland.
At the Federal level, groundwater is regulated through the Safe
Drinking Water Act. The Corps has consistently and correctly taken the
position that it does not regulate groundwater. Since sheet flow can
occasionally occur over almost every land surface (slide 24 attached),
and water flowing over any surface can accumulate sediment which can
then be carried into channels and on to navigable waters. If the Corps
is trying to regulate all surface flows of sediment into waterbodies,
then it should not only regulate those areas called ``wetlands'' that
are connected by sheet flow. If we call all areas where water may
occasionally sit or flow on the surface of the land ``navigable
waters'' then Section 404 should apply uniformly across virtually every
square foot of the United States and its territories. This would be far
more logical than regulating some ditches but not others and some plant
communities but not others.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
examples of inconsistent or erroneous applications of corps policy
There are two sources of concrete examples of the inconsistency
that abounds in the Corps regulatory program that I have tapped:
decisions in cases that have been finalized under the Administrative
Appeal process codified at 33 CFR 331 and other cases that may not have
been appealed formally, but which were the subject of strong debate
between property owners, their consultants and local Corps districts.
I reviewed all (50) of the jurisdictional decision (JD)
Administrative Appeal (AA) decisions that were posted on the Corps web
sites as of the date of the Advanced Notice of Proposed Rulemaking
(ANPRM). The Corps AA review officers' (RO) decision documents
demonstrate ``in their own words'' the inconsistencies of
interpretation of the regulations from district to district that have
resulted from the lack of sound foundation and structure related to
jurisdiction. Tables 1 is a list of the location and nature of the AA
examples. Table 2 is a list of other cases that I have compiled. The
following are some examples of the numerous inconsistencies that are
common within the 404 Program.
Adjacent vs. Isolated Wetlands
The most obvious issue arising from SWANCC and one of the most
common reasons for jurisdictional AAs is the argument whether a
morphologically disconnected landscape feature is isolated or adjacent.
Long distances, sheet flow and proximity to subsurface drain tiles have
all been used to claim that a wetland is adjacent to a tributary water
of the U.S.
A very disturbing trend is seen in a number of AA related to the
issue of what constitutes a connection to a tributary--connection by
sheet flow. In Continental 127 Fund, LLC (Table 1, AA19) and Baccarat
Fremont Developers (Table 1, AA8), the Corps used sheet flow from
disconnected wetlands to claim jurisdiction even though the Corps
recognized that there was neither an OHWM or continuous wetland
connection.
Similarly, in CS 7 and CS 8 (Table 2), the only connection to a
tributary was by sheet flow into a ditch. In CS 8 (Table 2) the Corps
went on to say that the hydrologically disconnected wetland was
``contiguous . . . irrespective of any past or existing permanent man-
made changes in landscape features . . .'' based on the presence of
hydric soils. The Corps did not care that the hydric soils may have
been naturally relict, whether the soils actually supported wetlands
within the life or the CWA and whether 33 CFR 328.5 had any meaning.
``Once 404, always 404,'' seems to be the current motto of the COE in
many locations.
The distance separating ``adjacent wetlands'' from tributaries
varies greatly, but in many cases goes beyond the fundamental concepts
encompassed in the definition of ``adjacent'' at 33 CFR 328.3 (c),
which was intended to capture those wetlands separated from tributaries
by narrow features. Several districts have over the years established
local policies on separation. Wilmington and Buffalo Districts
considered 200--300 ft and 200 ft, respectively, as the inclusion zone
for adjacency. The then New England Division (1991) established an 800-
ft inclusion zone.
Many of the Corps districts operating in the lower Mississippi
Valley utilize the entire width of the 100-year floodplain as the
inclusion zone for adjacency. Galveston District, as clarification
after the U.S. v Wilson decision, issued guidance on February 13, 2001,
stating that on the mainland, the 100-yr floodplain generally
constitutes the inclusion zone, although they also have a ``two-
barrier'' policy which states that a wetland is isolated even within
the floodplain if there are two barriers separating it from a
tributary.
Galveston District employed the ``two-barrier rule'' in the Reaves
Administrative Appeal (Table 1, AA44). The RO upheld the use of the
``rule'' when he decided that the appeal did not have merit in part
because the property was separated from Galveston Bay by only one
barrier--a road.
Jacksonville District has recently taken the position that a
wetland is jurisdictional if it will overflow from storm of 10-year
recurrence frequency; it is connected if no more than one foot of
relief exists between wetlands; or if it is within 500 ft of a
tributary. Jacksonville District is still undecided about an isolated
wetland that is more than 1000 ft from the Atlantic Ocean, 8 months
after a request for a ``no permit required'' verification (Table 2, CS
10).
Jacksonville District, in a public presentation entitled ``SWANCC
Update and Aftermath,'' redefined the term ``isolated'' to be `` Those
wetlands whereby the waters could not reach navigable waters via
surface flow or are not in close physical proximity to other waters of
the United States.'' It clarified that adjacent waters which only can
be wetlands and explained that ``adjacency is a physical relationship,
near, bordering, neighboring that needs to be relatively close to
'parent' water of the US.''
In Golden State Developers (Table 1, AA6) two ``adjacent wetlands''
one, 1950 feet and other 3,400 feet distant from an intermittent stream
were jurisdicitonal although the Corps did not assert jurisdiction over
100-ft wide, concrete-lined water supply canal. The RO found that the
appeal had merit because of insufficient documentation. The Corps
claimed jurisdiction over one wetland which was 3400 feet upstream on a
nonjurisdictional drainage because flow could travel down the
nonjurisdictional tributary to a jurisdictional tributary. A second
wetland was determined to be close enough at 1950 feet distance and
``with sufficient precipitation Wetland EW-2 could form a continuous
surface water connection with Stream W-1'' to claim jurisdiction. After
the AA decision, the District modified JD, however, the details are not
on the Web.
In Baccarat Fremont Developers (Table 1, AA8), the San Francisco
District based it jurisdictional call in part on the fact some wetlands
were adjacent to other wetlands not tributaries. The district argued
that sheet flow ties the wetlands together. The Administrative Appeal
RO determined that the appeal had merit since the District decision was
not supported by substantial evidence and that only wetlands that form
a ``wetland continuum or complex'' can be considered adjacent to the
major waterbody. The RO cited the preamble discussion from the 1991 NWP
publication (56 FR 59113, 1991). The District subsequently supplemented
its documentation but the substance of which was not provided on the
Web.
In Leavell/Grey (Table 1, AA9), Sacramento District claimed
jurisdiction over two physically separated wetlands that were in
proximity to two ditches. The RO determined that the appeal had merit
and directed the District to reconsider and document if the wetlands
are adjacent to any jurisdictional water body. Corps decided that a
13.79 A wetlands was adjacent to a ditch that had replaced a historical
tributary even though the ditch had been filled downslope and their
remained no connectivity. A similar scenario existed at Sun City
Lincoln Hills in California (Table2, CS2).
Tributary
The issue of ``what is adjacent'' cannot be separated from the
concept of ``what is tributary.'' Natural tributaries that currently
exist on the landscape in more or less unaltered form (that is not
radically channelized) generally can be readily recognized. The
decision related to such natural tributaries is whether the stream
channel is jurisdictional to the full longitudinal extent of a
perceptible OHWM or whether Federal jurisdiction stops at some point
short of the channel head. While the answer to this question is a legal
issue, there are technical rationales explaining why the answer to the
question should be that in many inland cases it stops short the full
length of a perceptible OHWM as currently defined. They are discussed
in a technical report provided electronically.
There are a number of concepts that must be addressed related to
the issue of what is tributary. These concepts occur as recurring
themes within the universe of the case studies that I have reviewed and
within the realm of the Administrative Appeal decisions that have been
finalized. Heading the list is the term OHWM. I have prepared a report
on the science relative to the concept and made it available
electronically.
What, if anything, constitutes a tributary in a less-than-natural
form is the subject of numerous disagreements between land-owners and
the Corps. Both cases that have been submitted to the AA process (Table
1) and those that have not (Table 2), reveal much about the lengths to
which some Corps districts will go to claim jurisdiction. These cases
are just the tip of the iceberg.
Jacksonville District, in a public presentation entitled ``SWANCC
Update and Aftermath,'' summarized the practicable application of Corps
policy as ``follow the drop of water.'' Contiguous wetlands are those
which are physically connected to navigable waters by a surface water
connection with an OHWM or a continuum of wetlands. If there is
evidence of a former stream, now in culverts, then a feature is
tributary, not isolated.
Ordinary High Water Mark
One of the most fundamental problems with determining jurisdiction
is the use of the term ordinary high water and OHWM to define the
upstream or longitudinal limit of 404 jurisdiction. The term OHWM was
``borrowed'' from the Section 10 program where it was only used to
define the lateral limits of a traditionally navigable waterway--the
longitudinal limit under Section 10 is defined by the limit of
navigation. There is no independently defined, longitudinal limit for
the Section 404 Program. The term OHWM may be an acceptable lateral
limit in waters that are otherwise found to be jurisdictional if it is
redefined to be quantitatively determinable and consistent with court
rulings, but it is not an appropriate concept for defining the upstream
limit of Section 404 jurisdiction.
33 CFR Part 328.3 (e) defines the OHWM as:
(e) The term ordinary high water mark means that line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as clear, natural line impressed on the bank,
shelving, changes in the character of soil, destruction of
terrestrial vegetation, the presence of litter and debris, or other
appropriate means that consider the characteristics of the
surrounding areas.
In Molycorp (Table 1, AA7), the Los Angeles District determined
that a desert wash that discharges into an isolated, ephemeral lake was
jurisdictional because the wash was ``hydrologically connected but not
morphologically connected.'' The District said that it considered the
OHWM in a ``watershed context.'' The District did not describe the size
or timing of the annual or seasonal surface flow representing the
hydrologic connection that it asserted was present. The primary
evidence of this surface water connection provided by the District in
the Administrative Record and at the appeal conference is that the
Molycorp Inc. property is at a higher elevation than Ivanpah Lake, and
that the water must flow down gradient and therefore must reach the
lake. The AA Review Officer determined that the District in determining
if an OHWM existed must consider:
. . . concentrated surface and subsurface flow (not groundwater) and
biological responses of plants and animals to concentrated flow..
But ``subsurface flow'' is groundwater and groundwater is regulated
under the Safe Drinking Water Act. Furthermore, plants/animal response
has no bearing on jurisdiction. The fact that plants grow better in a
riparian zone is not determinative with regards to jurisdiction.
Most disturbingly, the Review Officer concluded that an OHWM was
not necessary to continue jurisdiction through a 1000--1500 ft distance
to capture the desert wash upstream of the isolated dry lake. The RO
opined:
However, in this specific instance, I conclude that the District's
policy position that a tributary connection can exist in the
absence of a continuous ordinary high water mark is reasonable.
How can it be reasonable when the regulations at 33 CFR 328.4,
unambiguously state:
In the absence of adjacent wetlands, the jurisdiction extends to the
ordinary high water mark [51 FR 41251, November 13, 1986].
Even more explicit is the statement in the Preamble to 33 CFR
328.4:
Section 328.4(c)(1) defines the lateral limit of jurisdiction in
non-tidal waters as the ordinary high water mark provided the
jurisdiction is not extended by the presence of wetlands. Therefore, it
should be concluded that in the absence of wetlands the upstream limit
of Corps jurisdiction also stops when the ordinary high water mark is
no longer perceptible [51 FR 41217, November 13, 1986].
Furthermore, the Corps used the presence of surface water that
extended 20 feet into Nevada after a storm event with a 10-year
recurrence frequency to conclude that the morphologically isolated dry
lake bed was subject to interstate commerce and, thus, Section 404.
The OHWM should be described as that elevation on the bank where
water flows during the wetter part of the year but not during storm or
flood flows--certainly not a storm with a 10 year recurrence frequency.
This harkens back to the 1972 definition that the Corps promulgated.
Thus it would describe the channel in which water flows after a storm
surge has passed and the water has receded and is flowing clear. The
Corps Regulatory Guidance Letter (RGL) 88-06, issued June 27, 1988 (now
expired but still applicable), discussed the ordinary high water mark
(OHWM) as follows:
OHWM: The OHWM is the physical evidence (shelving, debris lines,
etc.) established by normal fluctuations of water level. For rivers
and streams, the OHWM is meant to mark the within-channel high
flows, not the average annual flood elevation that generally
extends beyond the channel [emphasis added].
This concept is elucidated in the ruling in U.S. v Pend Oreille
Public Utility Dist. No. 1, 926 F.2d 1502 (9th Cir. 1991) which held
that the ordinary high water line marked the boundary between riparian
land and riverbed, and that the line corresponded with the highest
level normally reached each year, excluding the annual spring rise:''
In calculating ordinary high water line, both Federal and Washington
State law mandate exclusion of annual spring floods and;
``High water line'' for a river did not include annual spring flood;
right of State to riverbed was limited to line of ordinary high
water level and not line of highest water that could be proved
[emphasis added].
The ruling in Pend Oreille also cited back to U.S. v. Claridge, 416
F.2d 933, 934 (9th Cir. 1969) and followed the Howard v. Ingersoll, 54
U.S. (13 How.) 409, 14 L.Ed. 189 (1851) Supreme Court ruling rejecting:
the mistaken assumption that the annual spring floods of the river
determined the ordinary high water line [emphasis added].
The ruling in U.S. v. Harrell, 926 F2.d 1036 (11th Cir. 1991) found
that:
Evidence failed to establish that tributary of navigable river was
below ``ordinary high water mark,'' for purposes of determining
whether tributary was within ``bed'' of river and subject to
Government's navigational servitude . . . and
Debris and litter left from temporary and unpredictable floodwaters,
unlike that left from ordinary high water, was not evidence of
ordinary high water mark of navigable river, for purposes of
determining whether tributary was subject to Government's navigable
servitude . . .
Thus, a history exists in both regulation and case law, which can
be used to quantifiably defineOHWM. Unfortunately, since 1977, the
Corps has never revised the definition of OHWM to reflect these legal
positions that can in fact be measured empirically in the field. To
this day it relies upon subjective language to implement the concept.
The flow, which most accurately depicts what the courts have
expressed conceptually as the OHWM, is the width of the channel that
carries the mean annual discharge (or flow). As Leopold (1994) points
out, ``the mean annual flow of a river is equaled or exceeded 25 to 30
percent of the time, or about 91 to 109 days a year, so about 265 days
a year the discharge is less than the average value. In other words,
the average discharge is a rather large flow.'' The mean annual flow is
routinely computed for all gaged streams in the United States and can
be derived from regression equations that the USGS has developed over
the last several decades for ungaged streams. The term OHWM should be
redefined to specify the width of the channel, which carries the mean
annual flow.
In dryland landscapes that lack the dense vegetative cover
characteristic of the humid climes, debris lines and small orientations
of soil particles resulting from water movement are more readily
obvious than where dense vegetation prevails. Furthermore, many dryland
channels do not have flow on an annual basis. Therefore, regulation
(which has increased dramatically in recent years) of small rills and
other ephemeral manifestations of overland flow in the dryland
southwest is an inequitable and arbitrary extension of jurisdiction
based upon climatic conditions that are dramatically different between
east and west. From a regulatory standpoint, a landowner would be
unable to complete any project in this desert landscape without
authorization from the Corps--this though it is virtually certain that
little if any of the precipitation that does fall will ever reach a
navigable water hundreds of miles away. Neglecting to consider these
differences in trying to reach a consistent, defensible policy on
jurisdictional limits for the 404 program will doom the effort to
assured failure.
In the King Ranch AA (Table 1, AA1), the appellant argued just the
point made in all of the legal decisions, i.e, that jurisdiction should
be based on ``ordinary or annual flow'' not on an OHWM based on water
flows during floods or extreme conditions. The RO dismissed the appeal
as having no merit and ruled:
The USACE recently addressed using an ``ordinary flow'' to establish
jurisdiction in place of an ordinary high water mark in the
response to public comments in the preamble to the ``Final Notice
of Issuance and Modification of nationwide Permits,'' Federal
Register Vol. 65, No. 47, March 9, 2000, page 12823. Public
commenters had asserted that ephemeral waters lacked sufficient
flows to establish an ordinary high water mark and that using peak
flows and/or flood stages in lieu of ordinary flows, or using cut
banks, shelving, or debris that was influenced only by peak flows
or flooding, was inappropriate. The USACE rejected using an
``ordinary flow'' to establish jurisdiction in place of an ordinary
high water mark (FR Vol 65, No. 47, page 12823) and stated that
ephemeral streams are waters of the United States, provided they
have an ordinary high water mark meeting the definition in 33 CFR
328.3(e). The USACE stated that the frequency and duration at which
water must be present to develop an ordinary high water mark has
not been established for the USACE regulatory program. The USACE
further stated that district engineers are to use their judgment on
a case-by-case basis to determine whether an ordinary high water
mark is present [emphasis added].
In Sunrise Office Park AA (Table 1, AA3) near Tuscan, Arizona, a
situation similar to Molycorp, the Los Angeles District claimed
jurisdiction of an ephemeral wash that empties into a water detention
basin of a new residential housing development. This 200 feet long by
60 to 120 feet wide basin is drained by a 60 foot long, 6 inch diameter
underground culvert. The 6 inch culvert then connects to an
approximately 1 foot wide channel. This 1 foot wide channel connects to
a concrete channel, which then reconnects to a natural channel with an
ordinary high water mark, which meanders southwest through several
single-family home residential areas to Magee Road. The ordinary high
water mark becomes indistinct at several locations between the project
site and Magee Road where the desert wash follows or crosses paved
surfaces. These road crossings act as conduits of the water and
maintain the tributary connection. There was no indication that the
Corps even attempted to find out the frequency and duration that the
roads had to be closed to traffic because of flowing water?
The Appeal was found to have no merit and the RO citing 33 CFR
328.4 (c)(1), concluded that:
[t]he evidence in the administrative record as clarified by the site
visit and appeal conference clearly support the District's
conclusion that there is a tributary connection between the desert
wash on the Appellant's project site and waters of the United
States.
In the Valley Vista AA (Table 1, AA5) in Arizona, the owner argued
that a wash and man-made impoundment lack current jurisdiction because
there was no OHWM downstream of impoundment. The Corps claimed that
prior to 1952 there was a 2-mile long wash with an OHWM that connected
it. The RO found the appeal had merit and ruled that the impoundment
could not be ruled jurisdictional based upon a connection that only
existed prior to the CWA. The final action of the District is still
pending.
Highly permeable soils and high evapotranspiration (ETo) in dryland
environments means that many channels which display a morphologically
continuous OHWM, may not be connected except during very infrequent,
high-flow events. Thus, ``marks'' are not necessarily ``ordinary.''
Constructed Drainage/Irrigation Ditches
In the preamble to the 1986 Corps regulations, the Corps stated
that:
. . . we generally do not consider the following waters to be
``Waters of the United States.'' However, the Corps reserves the
right on a case-by-case basis to determine that a particular
waterbody within these categories of waters is a water of the
United States. EPA also has the right to determine on a case-by-
case basis if any of these waters are ``waters of the United
States.''(a) Non-tidal drainage and irrigation ditches excavated on
dry land. (b) Artificially irrigated areas which would revert to
upland if the irrigation ceased [51 FR 41217, November 13, 1986].
In the 2000 Notice on NWPs (FR) the Corps amended that policy
(without benefit of the APA process) to indicate that ``ditches cut
entirely in upland. . . .'' Furthermore, the Corps stated that ditches
that connect one water of the U.S. to another water of the U.S. may be
jurisdictional.
Ever since the SWANNC decision there has been an ever increasing
reliance upon ditches excavated in upland conditions to be the
tributary that results in a determination of jurisdiction. In some
cases, the districts have determined that the ditches themselves are
not jurisdictional, but the wetlands that are either connected to them
or only adjacent are. In the Krejci AA (Table 1, AA38), the Omaha
district permitted the State highway department to divert a stream into
a roadside ditch and then several years later, the district found that
a nonconnected wetland on another property was adjacent to the roadside
ditch which was now a ``tributary'' and therefore, jurisdictional. In
this case the Corps approved one action that increased the
jurisdictional limits on another property.
The fact that the Corps regulates some ditches and not others,
immediately forms a venue for arbitrary and capricious behavior from
individual regulator to regulator and from district to district across
the Nation. The arbitrary application of ill-defined policies and
definitions feeds the ``it's jurisdictional because I say it's
jurisdictional'' syndrome. The fact that the Corps does not regulate
all ditches denigrates any argument that it must regulate some to
prevent pollution of navigable waters.
In the Leavell/Grey AA (Table 1, AA9), Sacramento District claimed
historic connection by a natural tributary that was replaced by two
ditches. In doing so, the District reversed its own jurisdictional
determination that it had taken on one of the ditches on an adjoining
piece of property. Because the ditch had been determined
nonjurisdictional for the earlier project on the adjoining property, it
had been filled, removing all connectivity with any natural waterbody.
The RO determined that the appeal had merit and directed the District
to reconsider why regulation of these two ditches is an exception to
the general rule that ditches aren't regulated. The Corps decided one
ditch and 1.196 acre wetland were not jurisdictional, but the other
ditch, the one with severed connectivity, was jurisdictional and the
13.79 acre wetland near it was adjacent and jurisdictional.
In the Kukal AA (Table 1, AA10), the Sacramento District determined
that an irrigation channel that also served as a drainage channel
during storm events was a tributary. The District agreed that much of
the runoff in the watershed above the ditch had been diverted but that
it did not alter its jurisdictional status. The RO determined that the
appeal did not have merit.
Piped Flow
Districts have taken the concept of piped flow of a natural stream
to the extreme. In the Pal Group AA (Table 1, AA15), the Chicago
District found that drain tiles under a farm field where sufficient
connection to make an adjacent property jurisdictional because the
Corps found a blueline channel indicated on a 1923 topographic map in
the vicinity of the project. Chicago District reasoned that the
subsurface drain tiles replaced the blueline stream. The AA Review
Officer determined that the appeal had merit because the District's
administrative record was inadequate.
In the Lundstrom AA (Table 1, AA18), the Chicago District used 1925
and 1940 USGS topographic maps to determine that a blueline channel was
in the vicinity of the project and had been replaced by drain tiles.
Since the appellant had not provided evidence that the underground
pipes did not replace the stream, the Review Officer determined that
appeal did not have merit. Furthermore, because present day topography
might be expected to differ from past, the Review Officer did not find
merit with the argument that there is a two-ft topographic rise between
the wetland and the tributary isolating it.
Use of Historic Maps and Photographs
It is very evident from a review of cases, that districts are
basing an ever increasing number of questionable decisions on what they
perceive to be present after reviewing very old topographic maps and in
some cases old aerial photographs. This trend is subverting the concept
of normal circumstances. In regulatory Guidance Letter 86-9, the Corps
stated:
. . . it is our intent under Section 404 to regulate discharges of
dredged or fill material into the aquatic system as it exists and
not as it may have existed over a record period of time.
Districts, in their quest for maximum land use authority, assume
that there is jurisdiction even if there is no factual basis to support
it. In a case in Ohio that I worked on, the tributary status of a
roadside ditch was called into question. The Corps regulator indicated
that he would check early topographic maps and aerial photographs to
determine if an historic channel existed in the vicinity of the ditch.
When asked what his default position would be if he found no evidence
of an historic channel, he indicated that he would assume that there
was one. I told him not to bother looking at old documents? It was
clear that he would conclude that the ditch was jurisdictional
irrespective of what could be seen on the old aerial photographs.
Old topographic maps do not need to depict a channel or even
contour lines to be sufficient ``proof'' that an historic channel
existed. In CS 5 (Table 2), the Sacramento District relied upon a 1909
USGS Quadrangle to decide that a natural ephemeral channel existed for
an additional half mile up to the property under consideration prior to
the excavation of an ephemeral irrigation/drainage ditch. The
Quadrangle depicted neither contours nor a channel to support their
contention. Even after the connection through the ditch had been
severed on a downslope neighboring property, Sacramento District
asserted that the animal waste holding ponds physically isolated but
adjacent to this ditch were jurisdictional. To take jurisdiction over
two constructed, animal waste treatment ponds even though they are 100-
feet away from and not connected to an excavated ditch because the
ditch might have replaced a hypothetical ephemeral channel that has not
if ever existed for decades and which had since been partially filled,
severing all connectivity, is an arbitrary and absurd abuse of Federal
authority.
Two fundamental flaws exist with the Corps's propensity to justify
all jurisdiction as a tributary. First, blue lines on USGS Quads are
unreliable. Leopold (1994), Emeritus Professor of Geology at UC Berkley
and former Chief Hydrologist for the USGS writes:
I tried to devise a way of defining hydrologic criteria for the
channels shown on topographic maps and developed some promising
procedures. None were acceptable to the topographers, however. I
learned that the blue lines on a map are drawn by nonprofessional,
low-salaried personnel. In actual fact, they are drawn to fit a
rather personalized aesthetic.
Thus, the Corps should not be giving great weight to old maps,
which used far-less accurate mapping procedures than are currently
available today and personalized aesthetics to depict stream courses,
to assert Federal jurisdiction over private property.
Second, even if an historic channel existed, the principle of
``once navigable, always navigable'' does not apply to nonnavigable
waters under Section 404 of the CWA. Corps regulations at 33 CFR 328.5
states:
Permanent changes of the shoreline configuration result in similar
alterations of the boundaries of waters of the United States.
Gradual changes which are due to natural causes and are perceptible
only over some period of time constitute changes in the bed of a
waterway which also change the boundaries of the waters of the
United States. For example, changing sea levels or subsidence of
land may cause some areas to become waters of the United States
while siltation or a change in drainage may remove an area from
waters of the United States. Man-made changes may affect the limits
of waters of the United States; however, permanent changes should
not be presumed until the particular circumstances have been
examined and verified by the district engineer. Verification of
changes to the lateral limits of jurisdiction may be obtained from
the district engineer.
In CS 5 (Table 2), Sacramento District decided that a permit was
not needed to fill a ditch, presumedly because it had already been
legally filled downslope and, thus, disconnected from any natural
waterbody. Defying all logic, however, Sacramento District determined
that a permit would be needed to fill the animal waste ponds that were
100 feet distant from a nonjurisdictional, isolated, excavated ditch.
Ephemeral Channels
Ephemeral channels in all climes generally form under the same
landscape conditions--sparse or no vegetative cover. The presence of a
dense cover of vegetation on the land surface, softens the impact of
raindrops (the initiator of erosion) and binds the soil in place
through the network of roots and generally prevents the formation of
channels. When the vegetative cover is sparse as naturally occurs in
dryland conditions (e.g., the southwest) or onsites that have been
filled with subsoils low in organic matter and nutrients, or bare soils
resulting from clear-cutting of mature forests or scraping or rutting
of the land surface, erosion can occur at a rapid rate. The channels
that form generally are deeply incised and carry runoff water only
during and immediately after rain events or snowmelt.
Under dryland climatic conditions, and absent any other
perturbation, the vegetation cover remains sparse and erosion continues
at rates determined by such factors as intensity of storm event, soil
characteristics and slope. Channels that form under dryland conditions
may not be in response to surface erosion, but may actually result from
the collapse of subsurface tunnels and debris slides among other
causes. Once formed, however, such ephemeral channels will continue to
carry water (and high loads of eroded sediment) during and shortly
after storm events until obliterated by some more catastrophic event.
In the more humid climes, in most cases, a depauperate land cover
is usually transient. Unless chemical contamination or very steep
slopes are present, weed species rapidly colonize the bare soil and the
landscape passes through a well-documented progression of serial stages
until a climax forest (100-years or more distant from the bare soil
condition) results in a stable plant community. Generally, it is only
during the very early stages of such succession, that ephemeral
channels that formed during bare-soil conditions actually carry water
except under the most severe events.
CS1, CS6, CS8 and CS13 (Table 2) and AA7 (Table 1), identify
situations where barely definable flow-paths have been regulated by the
Corps. In CS13, two channels were regulated that exist only because
channelized runoff from a road has been directed across private
property. Natural drainage ways would not have existed except for the
``artificial'' source of water.
Impoundments
Impoundments usually are formed by constructing a dam across a
channel, constructing a berm across a swale or valley and/or excavating
a depression. The Corps has long held that constructing a dam across a
water of the U.S. expands jurisdiction to the entire impoundment [33
CFR 328.3 (a)(4)]. On the other hand, the Corps also holds that:
. . . we generally do not consider the following waters to be
``Waters of the United States.'' However, the Corps reserves the
right on a case-by-case basis to determine that a particular
waterbody within these categories of waters is a water of the
United States. EPA also has the right to determine on a case-by-
case basis if any of these waters are ``waters of the United
States.''
(c) Artificial lakes or ponds created by excavating and/or diking dry
land to collect and retain water and which are used exclusively for
such purposes as stock watering, irrigation, settling basins, or
rice growing.
(d) Artificial reflecting or swimming pools or other small ornamental
bodies of water created by excavating and/or diking dry land to
retain water for primarily aesthetic reasons.
(e) Water-filled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the
purpose of obtaining fill, sand, or gravel unless and until the
construction or excavation operation is abandoned and the resulting
body of water meets the definition of waters of the United States
(see 33 CFR 328.3(a)) [51 FR 41217, November 13, 1986]
With regards to (e) above, the Coprs, in it 2000 Notice (65 FR
12860) on NWPs, indicated that with regards to mining activities, a 10-
year period was an appropriate length of time until a wet, mined
feature is considered abandoned and thus, jurisdictional. This raises
the legal issue of whether the Corps has any authority to regulate any
body of water or wetland that arises from intentional or incidental
human activities that alter the landscape.
The manner in which Corps districts treat impoundments varies
through a wide spectrum of actions. In Valley Vista (Table 1, AA5), the
AA RO found that a stock pond appeared to be constructed in the upland
and was connected by a ditch cut in the upland and, therefore, lacking
a special reason, the impoundment should not be regulated. Conversely,
in CS 3 (Table 2), the Jacksonville district determined that a borrow
pit dug in uplands that drains through an upland outfall ditch, to
roadside ditch, to second roadside ditch, to third roadside ditch and
finally to San Carlos Bay (a distance of ? one mile) was
jurisdictional, presumably because a drop of water entering the borrow
pit could reach navigable waters.
In Memphis Stone & Gravel (Table 1, AA36), the Review Officer
concluded that the purpose of ponds (in this case erosion control and
livestock watering) was immaterial. The pond that had an OHWM was
jurisdictional and the one that did not was not. Vicksburg District
adjusted the JD to conform with the ruling.
Similarly, in both Laycom, Inc. (Table 1, AA13) and Desert Moon
Shadow Estates (Table 1, AA4), the AA RO upheld the Chicago and Los
Angeles Districts' determinations, respectively, that the presence of
an OHWM, whether the result of historical or current conditions, was
adequate that both an intentionally constructed flood retention pond
and a bermed impoundment were part of a tributary system and as such
the appeal had no merit.
In CS 5 (Table 2), the Sacramento District determined that two
constructed, animal-waste impoundments were jurisdictional because they
were located within 100-ft of a ditch that may have been an ephemeral
drain (based upon a 1909 topographic map that showed neither contours
nor a blueline channel) that they concluded was tributary to a
jurisdictional water. The ditch was determined to lack jurisdiction
under current conditions because an legal fill severed connectivity
slope from the ponds. Nevertheless, the waste ponds remained
jurisdictional.
In CS 6 (Table 2), the Los Angeles District, originally asserted
jurisdiction over two completely isolated, constructed in upland
stormwater ponds whose drainage basins consisted of 20 acres of
abandoned airfield runways and whose inflow was regulated by a valved
inlet structure. After considerable negotiation on the legality of the
JD determination, the Corps decided to only regulate vegetated patches
in one of the basins and authorized the discharge of fill into the
vegetated patches under a NWP.
In Jacksonville District, the Corps has found that stormwater ponds
are jurisdictional, or in the case were the ponds were constructed in
uplands, that jurisdiction can pass from the outfall ditch, through the
ponds and through upslope ditches to wetlands. Thus, even if the pond
itself is not regulated, the Corps will capture isolated wetland if a
ditch is constructed from the wetland to the pond.
New Theories and/or New Terminology
A review of jurisdictional determination, indicates that since the
U.S. v. Wilson decision and subsequent guidance (May 29, 1998)
distributed by EPA and Corps headquarters, many Corps districts have
become much more ``creative'' in the reasons that they use for
asserting jurisdiction under Section 404. The trend is to find
connection through any means possible. If connectivity is the key to
Corps jurisdiction, then scientifically a reasonable argument can be
made that 100 percent of the landscape is jurisdictional because all
water is connected. For a program where the rules have not been
overhauled in 17 years, it is amazing the number of new theories or
terms that continuously creep into Corps decisions. Here are a few new
concepts that were prominent in my review.
In Molycorp Inc. (Table 1, AA7), the Los Angeles District
considered the OHWM in a ``watershed context.'' The RO directed the
District to consider OHWM in terms of annual and seasonal flow,
concentrated surface and subsurface flow (not groundwater) and
biological responses of plants and animals to concentrated flow.
In Baccarat Fremont Developers (Table 1, AA8), the San Francisco
District based it jurisdictional call in part on the fact some wetlands
were adjacent to other wetlands not tributaries. The district argued
that sheet flow ties the wetlands together. The Administrative Appeal
RO determined that the appeal had merit since the District decision was
not supported by substantial evidence and that only wetlands that form
a ``wetland continuum or complex'' can be considered adjacent to the
major waterbody. The RO cited the preamble discussion from the 1991 NWP
publication (56 FR 59113, 1991).
The insertion of the word ``complex'' into the consideration of
adjacency is inappropriate, NOT consistent with the 1991 NWP
publication and contravenes the language of 33 CFR 328.3(a)(7). The
context of the 1991 Federal Register discussion was related to whether
a continuous wetland should be subdivided from the major waterbody to
attempt to determine where the flow is less than 5 cfs and thus,
headwaters. The pertinent passage is:
In systems where there is a broad continuum of wetlands, all are
considered adjacent to the major waterbody to which it is
contiguous. This type of broad system should not be dissected for
purposes of determining where the 5 cfs point does or does not
exist as it is hydrologically and ecologically part of the same
system and should be treated as a whole [56 FR 59113, 1991].
The use of the term ``continuum'' was simply an attempt to change
the accusative form of the word ``contiguous'' to the nominative case.
Perhaps the grammatically better choice of terms would have been
``contiguity,'' however, ``continuum'' is the more common expression of
the concept. A ``complex,'' however, as commonly used ecologically and
in the context of landscapes, means a grouping of different but related
features. An area that is a mix of intermingled wetlands and uplands
could be referred to as a ``complex'' or more correctly a ``wetland/
upland complex.'' Thus, the justification for regulating a wetland that
is adjacent to another wetland that is separated by upland because it
is a ``complex'' is totally inconsistent with the meaning and I believe
the intent of the Federal Register statement.
The ``complex'' theory also was the basis in part for the Buffalo
District's decision in NEC Transit/Williams, LLC (Table 1, AA41) which
was upheld by the Administrative Appeal RO. The RO's decision was based
in part on:
The District observed that Wetland F had no discernible outlet for
water flow and no evidence that water ever flows from the wetland.
However, Wetland F is in close proximity to Wetland A and the other
wetlands, and contains similar vegetation and soils. Wetland F is
determined to be in the same ecosystem and adjacent to other
wetland areas.
The non-hydric soil area between Wetland A and B was disturbed before
the July; 5, 2001 site visit.The brush and trees had been cut and
removed by large equipment The earth and soils were
partiallydisturbed, tracked., and scuffed by the activity However,
coupled with past site visit reports and maps there was enough of
the area remaining undisturbed to determine the soils were not
hydric. Wetland A has a location where water flowed from the lowest
point in its rim but had no discernable channel or wetland soils in
the area where water overflows. Water overflows rarely or with such
low velocities that it leaves no evidence of flow through erosive
forces. The length of time the flow occurs is so short that no
saturated soils are created. However, since the Corps
representatives and others observed water flowing at that location,
the district determined that wetland A is not isolated but a
tributary to the wetland complex. Also Wetland A is a closely
related part of the same ecosystem complex. The character and
relationship of Wetlands A and F with the other wetland areas is
strongly influenced by the geomorphology and climate of the area.
The area is relatively flat with a land type that contains similar
wetlands, some functioning continuously as feeder streams and some
nearly isolated so that they flow only in heavy rainfall events
where water accumulates and overflows to lower areas. From an
ecological standpoint, there is no separation of any of the wetland
areas on the project site. As noted above, the Corps' ecological
judgment about the relationship between waters and their adjacent
wetlands is a sufficient basis for making a jurisdictional
determination regarding adjacency.
Ecologically, ground and surface-water form a ``continuum''
throughout the landscape. The ``complex'' theory taken to an ecological
limit justifies regulating the entire watershed of each jurisdictional
tributary. The regulatory program, however, is not an ecological study,
but the implementation of policy based on law and supported by science.
Regulation of private property is not based upon ecology but upon the
police powers of the State granted by the constitution and balanced by
socioeconomic considerations. The jurisdictional limit expressed at 33
CFR 328.3(a)(7) is based upon policy considerations and any alteration
of it should be based upon APA rulemaking.
In Hemet, California (Table 2, CS7), the Corps claimed jurisdiction
over roadside ditches because they ``intercept water that otherwise
would be jurisdictional.''
In Desert Moon Shadow Estates (Table 1, AA4), the Corps used the
``vitality of plants in the vicinity'' to assert jurisdiction over
ephemeral desert washes.
In Golden State Developers (Table 1, AA6) the Corps determined that
a wetland, which was 3400 feet upstream on a nonjurisdictional
drainage, was jurisdictional because flow could travel down this
nonjurisdictional tributary to a jurisdictional tributary.
Interstate, Intrastate and Commerce Clause Connections
The nature of commerce is discussed at 33 CFR 329.6. What
constitutes interstate commerce is a legal issue that is addressed by
the Corps at 33 CFR 328.3(a)(3) and the preamble to this part at 51 FR
41217. It is in essence, the fundamental issue that has driven this
Advanced Proposed Rulemaking. The Supreme Court in SWANCC has told us
that at least the use by migratory birds is NOT interstate commerce.
The issue of what constitutes interstate commerce was the subject of
several administrative appeals.
In the Potlach Corp. AA (Table 1, AA11), Walla Walla District ruled
that a wetland that had grown up in an abandoned, isolated, intrastate,
nonnavigable pond used in the past to hold logs at a mill was
sufficient nexus to interstate commerce to be jurisdictional even
though, the process currently used in the mill did not permit logs to
be held in a pond. The RO ruled that the appeal had merit because the
District provided no reasonable evidence that the wetland could be used
in the future for holding logs related to interstate commerce.
What constitutes interstate waters is the subject of several of the
cases evaluated for this report. At 33 CFR 328.3(a)(2), the Corps
simply states that ``All interstate waters including interstate
wetlands'' are waters of the U.S. The Corps discusses the extent of its
jurisdiction under Section 10 of the RHA relative to crossing State
lines at 33 CFR 329.7:
A waterbody may be entirely within a State, yet still be capable of
carrying interstate commerce. This is especially clear when it
physically connects with a generally acknowledged avenue of
interstate commerce, such as the ocean or one of the Great Lakes,
and is yet wholly within one State. Nor is it necessary that there
be a physically navigable connection across a State boundary. Where
a waterbody extends through one or more States, but substantial
portions, which are capable of bearing interstate commerce, are
located in only one of the States, the entirety of the waterway up
to the head (upper limit) of navigation is subject to Federal
jurisdiction.
Three important facts arise from this statement: first there must
be the capability of navigation in the waterbody, second there must be
interstate commerce conducted and third, that Federal jurisdiction
stops at the head of navigation.
In Molycorps Inc. (Table 1, AA7), the Los Angeles District ruled
that Ivanpah Lake, an ephemeral waterbody and all washes flowing into
it was jurisdictional because water from it extended 20-30 feet into
Nevada from California at one point. The entire basis for jurisdiction
of this physically isolated feature was that the landscape features
consistent with the current definition of OHWM extended across a State
boundary. However, it is unknown what the recurrence frequency of
inundation is in this desert playa lake associated with the landscape
features attributed to the OHWM.
More fundamental, however, in Molycorp, Inc. is the lack of any
actual commerce attributed to navigation on Ivanpah Lake in any
portion, in either State. Interstate commerce was determined to exist
solely on the basis of the OHWM crossing the State boundary.
In CS1 (Table 2) the Santa Cruz River in Arizona was determined to
be an interstate waterbody because it headwaters which originate in
southeastern Arizona flow south into Mexico for a short distance and
then turn back north and continue flowing only in Arizona.
Topographically, the defined channel of the Santa Cruz River ends on
the large alluvial plain known as the Santa Cruz Flats. The Corps
maintains that water can continue to flow from the Santa Cruz River,
into the Gila River (an intrastate waterbody) and then to the Colorado
which flows south through Mexico and discharges into the Gulf of
California.
The nature of the interstate connection on the Colorado River and
the upper reach of the Santa Cruz River is very different from that on
the lower reach of the Santa Cruz River. In the case of the Colorado
River and the upper reach of the Santa Cruz River, a very reasonable
case can be made that pollutants that are discharged in the United
States could cross an international boundary and adversely effect the
waters of another country. In the case of the lower Santa Cruz River,
i.e., from the point at which the River reenters the United States,
there can be no effect on another country of a pollutant discharged
into it, since the flow remains entirely within Arizona. Absent any
effect on interstate commerce, can the lower Santa Cruz River be
legitimately defined as an interstate water or is their an upper limit
to the commerce connection similar to the head of navigation under
Section 10 of the RHA.
Compounding the issues associated with the lower Santa Cruz River
is the fact that after the River reenters the United States, it flows
through the Tohono O'odham Indian Reservation prior to reaching the
Tucson metropolitan area. This raises the issue of whether water that
flows entirely within one State but through tribal lands can legally be
deemed to be interstate waters with an effect on interstate commerce.
Conflicting Determinations
As discussed above, in Molycorp Inc. (Table 1, AA7), the Los
Angeles District maintained that washes which don't have a continuous
OHWM for the last 1000--1500 feet before reaching the ephemeral Ivanpah
Lake were jurisdictionally connected. However, in the same time period
at Moorpark, California (Table 2, CS8), the same reviewer for the Corps
found that ``Nearly all of these ephemeral drainage courses exhibit an
ordinary high water mark (OHWM) at higher elevations, but the OHWM for
each disappears at lower elevation, presumably because of insufficient
hydrology in light of the porous substrate, onsite vegetation, and
reduced slopes'' and declined to take jurisdiction. In the Molycorp
Inc. project, the Corps would have lost control over a large tract of
land, whereas in the Moorpark project, where the owner wanted the Corps
to assert jurisdiction, the District avoided having to deal with the
Endangered Species Act (ESA) by declining jurisdiction and left the
owner having to go through the more arduous ESA Section 10 permit
process, than Section 7 consultation.
Wetlands
The single-most debated issue throughout the long and often-
volatile history of deciding what is a ``wetland'' for regulatory
purposes, is the issue of the frequency, duration and proximity to the
land surface of water. In 1991, when Congress prohibited expenditure of
funds (through the Water Resources Appropriation Bill of 1992) in
reliance upon the 1989 wetland delineation manual, the Corps reverted
to its 1987 delineation manual. Since only wetlands (not open water
bodies) that are simply neighboring (i.e., no surface connection
through a wetland or a channel) can be regulated as ``adjacent'' (33
CFR 328.3), it is also crucial to a reasoned interpretation of SWANCC
to specify the frequency, duration and proximity to the land surface of
water necessary to constitute a jurisdictional wetland.
The ``official'' requirement on paper that is in effect today is
elucidated in the 1987 manual and in the guidance questions and answers
published by the Corps headquarters in 1991 and 1992. In pertinent part
they provide the following:
For an area to accurately be characterized as having wetlands
hydrology, it must be frequently inundated or saturated to the
surface for long duration. The requirement that a site be inundated
or saturated to the surface either permanently or periodically is
stated in Part I: Technical Guidelines of the 1987 Manual:
The following definition, diagnostic environmental characteristics,
and technical approach comprise a guideline for the identification
and delineation of wetlands: Diagnostic environmental
characteristics:
Hydrology. The area is inundated or saturated either permanently or
periodically at mean water depths < 6.6 ft. or the soil is
saturated to the surface at some time during the growing season of
the prevalent vegetation [p.9].
The 1987 Manual defines the term ``saturated soil conditions,'' a
term which is taken directly from the definition of wetland (33 CFR
328.3b), as:
A condition in which all easily drained voids (pores) between soil
particles in the root zone are temporarily or permanently filled
with water to the soil surface at pressures greater than
atmospheric [page A11].
Thus, saturated soil conditions only exist from the water table
down. The capillary fringe above the water table, being caused by
surface tension, i.e., negative pressure, does not meet the definition.
The water table is defined in the 1987 Manual as:
The upper surface of groundwater or that level below which the soil
is saturated with water. It is at least 6 in. thick and persists in
the soil for more than a few weeks [p. A14, emphasis added].
The 1987 Manual contains numerous other statements clarifying what
constitutes wetland hydrology including:
The term ``wetland hydrology'' encompasses all hydrologic
characteristics of areas that are periodically inundated or have
soils saturated to the surface at some time during the growing
season. . . . Such characteristics are usually present in areas
that are inundated or have soils that are saturated to the surface
for sufficient duration to develop hydric soils and support
vegetation typically adapted for life in periodically anaerobic
soil conditions'' [p.34].
Although the length of time that an area must be inundated or
saturated to the surface can vary according to the hydrological/soil
moisture regime, the 1987 Manual provides guidance as to the duration
of saturation required for a site to have wetlands hydrology at Table 5
[p. 30]. In summary, Table 5 indicates that areas that are saturated
more than 12.5 percent of the growing season have wetland hydrology
while those that are saturated for less than 5 percent of the growing
season do not. It further states that many areas that are saturated
between 5 and 12.5 percent of the growing season are not wetlands
[emphasis added].
The term `Duration (inundation/soil saturation)' is defined as:
The length of time during which water stands at or above the soil
surface (inundation), or during which the soil is saturated. As
used herein, duration refers to a period during the growing season
[p. A4].
On October 7, 1991, Corps headquarters issued Questions and Answers
on 1987 Corps of Engineers Manual (Studt 1991) to further clarify the
concept. The answer to Question 8 in pertinent part states:
Generally speaking, areas which are seasonally inundated and/or
saturated to the surface for more than 12.5 percent of the growing
season are wetlands. Areas saturated to the surface between 5 percent
and 12.5 percent of the growing season are sometimes wetlands and
sometimes uplands. Areas saturated to the surface for less than 5
percent of the growing season are nonwetlands. . . . If an area is only
saturated to the surface for a period of between 5 percent and 12.5
percent of the growing season and no clear indicators of wetland
hydrology exist (i.e., recorded or field data; also see answer #7
above), then the vegetation test should be critically reviewed. . . .
The actual number of days an area is inundated and/or saturated to the
surface for an area to be called a wetland varies [p. 4].
The presence of surface water or near-surface groundwater for short
duration at frequent intervals or at infrequent intervals for long
duration during the growing season, does not constitute wetland
hydrology. In fact, the definition of nonwetlands in the 1987 Manual
specifically addresses this point:
Nonwetlands include uplands and lowland areas that are neither
deepwater aquatic habitat, wetlands, nor other special aquatic
sites. They are seldom or never inundated, or if frequently
inundated, they have saturated soils for only brief periods during
the growing season [p.15].
The 1987 Manual defines ``Frequency'' (inundation or soil
saturation) as:
The periodicity of coverage of an area by surface water or soil
saturation. It is usually expressed as the number of years (e.g.,
50 years) the soil is inundated or saturated at least once each
during part of the growing season per 100 years or as a 1-, 2-, 5-
year, etc., inundation frequency [p. A5].
Thus, the three ``official'' documents that specify the hydrology
requirements for a jurisdictional wetland can be stated as on average,
an area must be inundated or the soils saturated to the surface in more
than half the years (1 out of 2, 5 out of 10, or 50 out of 100) for
more than 12.5 percent of the growing season to conclude with
reasonable certainty that the area has wetland hydrology.
Unfortunately, when the Waterways Experiment Station placed an
electronic version of the 1987 manual on the World Wide Web in the late
1990's which purportedly included the 1991 and 1992 question and answer
guidance, it subverted the hydrology ``criterion.'' In an apparent
effort to retain as much of the philosophy that engendered the 1989
Manual's inclusiveness, the hydrology ``criterion'' was summarized as
and government-sponsored training courses are based upon the following
statement:
. . . an area has wetland hydrology if it is inundated or saturated
to the surface continuously for at least 5 percent of the growing
season in most years (50 percent probability of recurrence).
In practice today, many Corps regulators in routine matters and EPA
and DOJ in enforcement matters maintain that all that is required for
an area to be deemed to have wetland hydrology (and thus, almost
invariably be called a wetland) is that saturation be present anywhere
within the top 12 inches of the soil for 5 percent of the growing
season every other year--concepts very similar to those set forth in
the 1989 Manual. For example, Lichvar et al. (2002) incorrectly
attributes a 1--2 week duration (5 percent of the growing season) to
Corps headquarter's guidance from March 1992. (See also Administrative
Appeal Decisions: Mr. Allen Gordon, Table 1, AA48; Tammany Holdings,
Table 1, AA28.)
It defies credulity to believe that an area that is saturated at
say 11 inches below the surface for 7 days out of 730 days (every other
year) will function in any manner different than the surrounding
landscape that is nonwetland. Certainly no credible research has ever
shown such to be the case. The practical application of these mythical
``thresholds'' subverts the provision of the 1992 Water Appropriations
Act which prohibited the Corps from spending any of its regulatory
budget in reliance upon the 1989 Manual until it had been subjected to
the APA process--which has never occurred.. While it can be debated
whether water present every other year is consistent with the judicial
rulings in Pend Oreille and Howard v. Ingersoll, at least such a
``criteria,'' in theory, is quantifiable, although in practice, the
vagaries of annual precipitation patterns often require a complicated
analysis.
DISINGENUOUS PROMISES AND LACK OF RESPONSIVENESS
While the Corps and EPA are very quick to propose rulemaking that
has an expansive impact on Section 404 jurisdiction, they continuously
make then disregard promises made to the public as well as actions
mandated by the Congress that would have a limiting effect on
jurisdiction. On January 24, 1990, the Corps disseminated a joint EPA/
Corps memorandum entitled Clean Water Act Section 404 Jurisdiction over
Isolated Waters in Light of Tabb Lakes v. United States. In it they
stated:
``Instead, the EPA and Corps intend to undertake as soon as possible
an APA rulemaking process regarding jurisdiction over isolated
waters.''
They never did.
On May 29, 1998, in a memorandum entitled Guidance for Corps and
EPA Field Offices Regarding Clean Water Act Section 404 Jurisdiction
Over Isolated Waters in Light of United States v. James J. Wilson they
stated:
In the near future, EPA and the Corps intend to promulgate a rule
addressing the jurisdictional issues discussed in this guidance,
with full opportunity for public review and comment.
They never did.
The Water Resources Appropriations Act of 2001 provided over $125
million dollars for the Corps Regulatory program. Expenditure of that
money required eight specific tasks of the Corps:
For expenses necessary for administration of laws pertaining to
regulation of navigable waters and wetlands, $125,060,000, to remain
available until expended: Provided, That the Secretary of the Army,
acting through the Chief of Engineers, is directed to use funds
appropriated herein to:
(1) by March 1, 2001, supplement the report, Cost Analysis For the
1999 Proposal to Issue and Modify nationwide Permits, to reflect
the nationwide Permits actually issued on March 9, 2000, including
changes in the acreage limits, preconstruction notification
requirements and general conditions between the rule proposed on
July 21, 1999, and the rule promulgated and published in the
Federal Register;
(2) after consideration of the cost analysis for the 1999 proposal to
issue and modify nationwide permits and the supplement prepared
pursuant to this Act and by September 30, 2001, prepare, submit to
Congress and publish in the Federal Register a Permit Processing
Management Plan by which the Corps of Engineers will handle the
additional work associated with all projected increases in the
number of individual permit applications and preconstruction
notifications related to the new and replacement permits and
general conditions. The Permit Processing Management Plan shall
include specific objective goals and criteria by which the Corps of
Engineers' progress toward reducing any permit backlog can be
measured;
(3) beginning on December 31, 2001, and on a biannual basis
thereafter, report to Congress and publish in the Federal Register,
an analysis of the performance of its program as measured against
the criteria set out in the Permit Processing Management Plan;
(4) implement a 1-year pilot program to publish quarterly on the U.S.
Army Corps of Engineer's Regulatory Program website all Regulatory
Analysis and Management Systems (RAMS) data for the South Pacific
Division and North Atlantic Division beginning within 30 days of
the enactment of this Act; and
(5) publish in Division Office websites all findings, rulings, and
decisions rendered under the administrative appeals process for the
Corps of Engineers Regulatory Program as established in Public Law
106-60;
(6) Provided further, That, through the period ending on September
30, 2003, the Corps of Engineers shall allow any appellant to keep
a verbatim record of the proceedings of the appeals conference
under the aforementioned administrative appeals process;
(7) Provided further, That within 30 days of the enactment of this
Act, the Secretary of the Army, acting through the Chief of
Engineers, shall require all U.S. Army Corps of Engineers Divisions
and Districts to record the date on which a section 404 individual
permit application or nationwide permit notification is filed with
the Corps of Engineers; and
(8) Provided further. That the Corps of Engineers, when reporting
permit processing times, shall track both the date a permit
application is first received and the date the application is
considered complete, as well as the reason that the application is
not considered complete upon first submission.
To the best of my knowledge the Corps has complied with only three
of the eight requirements and has otherwise not complied with the
deadlines established in the 2001 Appropriations Act for Cost Analysis
Supplement (1), Permit Processing Management Plan (2), Report to
Congress (3), Publish Data Pilot (4), and Complete Application
Determination (8). Item 2, the Permit Processing Management Plan, would
contain guidance on interpretations that would bring some consistency
to the Section 404 Program.
As of this Hearing, we still do not have an APA rule that defines
clear and concise policies with regard to isolated waterbodies or for
that matter any of the other jurisdictional issues that I have raised
above. The Corps and EPA simply make promises and then procrastinate
with the hope that no one will ever call them to task. The best we have
to date is an ``Advanced Notice of Proposed Rulemaking'' published in
the Federal Register on January 15, 2003. We have already had at least
two advanced notices--one in 1990 and one in 1998. Now the agencies are
hoping that they can again procrastinate and not actually go forward
with rulemaking.
In the May 29, 1998 joint memorandum, the Corps and EPA also wrote:
Although Tabb Lakes, Ltd. v. United States, (715 F. Supp. 726, aff'd
without opinion, 885 F.2d 866 (4th Cir., 1989)), concluded that
EPA/Corps guidance could not be cited as the legal basis for
interstate commerce nexus using migratory birds because that
guidance had been issued without notice and comment, the decision
did not prohibit the use of migratory birds to establish a
connection to interstate commerce under the Clean Water Act.
Consequently, notwithstanding the Fourth Circuit's decision in Tabb
Lakes, Corps and EPA field offices should continue to assert CWA
jurisdiction over all isolated, intrastate water bodies that serve
as habitat for migratory birds.
The agencies were put on notice as early as in 1989 that the use of
migratory birds as a test for interstate commerce was illegal. They
chose to ignore it. While the SWANCC decision has eliminated the future
use of the ``migratory bird rule,'' to my knowledge no one has
addressed the millions of dollars that the public spent during the
period from 1984 to 2001 when it was implemented, and the Corps
illegally regulated isolated, intrastate, non navigable waterbodies.
Moneys spent to work though the complex permit process. Moneys lost
because of time delays in projects. Money spent to defend against
alleged violations. Moneys spent for mitigation, restoration and as
penalties. How many people were incarcerated because of violation of
the CWA jurisdiction based upon the ``migratory bird rule?'' All of
which occurred as the result of an uncodified ``rule'' instituted by
the EPA, ignoring the APA and with the power to compel the Corps to
adopt it. The agencies have run rough-shod over the public with no real
accountability.
CONCLUSIONS
The Corps and EPA, indeed the entire body of Federal water-resource
agencies, for years has been telling the public what wetlands and
waterways are, why they are important and why they must be regulated
and protected by the Federal Government. Yet there is a duplicity in
what the public is being led to believe are the landscape features for
which ever-increasing, millions of dollars in tax revenues and private
funds are expended each year to regulate.
Slides 1-5 and 9-10 in the attached presentation convey the images
that the agencies portray to the public as regulated wetlands: lush and
often exotic vegetation, plenty of water and colorful waterfowl, wading
birds and wildlife. How could anyone but the most callous despoiler of
the environment not agree that protection and regulation is important.
Yet, few of such landscape features, are impacted anymore. The
regulated public has recognized their value and generally, except for
occasional transportation crossings, avoids impacting them.
The battles today between landowners and the Federal Government
generally are waged over the type of landscape features depicted in
slides 6-8, 11-17, 20 and 21. They are the roadside ditches, the
stormwater ditches, the drainage ditches and irrigation ditches
excavated in dry land. They are the borrow pits, the stormwater
management ponds, the sewage treatment lagoons and animal feed lot
waste holding ponds that are no longer actively used for the original
purpose for which they were constructed. They are natural landscapes
that may have near-surface groundwater during the winter until leaf-
buds open and then the plants rapidly dewater the landscape early in
the spring and for the rest of the year. They are the meadows and woods
where the water table need only reach to within 12 inches of the
surface for as little as 7 days every other year, i.e., 7 out of 730
days.
Section 101(b) of the CWA states in pertinent part:
It is the policy of the Congress to recognize, preserve, and protect
the primary responsibilities and rights of States to prevent,
reduce and eliminate pollution, to plan the development and use
(including restoration, preservation and enhancement) of land and
water resources . . .
It is my experience, that many individuals in EPA and the Corps,
see Section 404 as the best game in town when it comes to side-stepping
the rights of the States as specified in our Constitution and
implementing land management decisions by the Federal Government. The
404 Program as currently implemented is in many cases abusive to the
public and decisions rendered are often arbitrary and capricious.
Because the jurisdictional limits of the 404 Program are so poorly
defined, there are as many different concepts of what constitutes
waters of the United States as there are regulators.
Probably the single most important reason, that confusion and
inconsistencies exist in the Section 404 Program is the fact, that
there are two Executive agencies attempting to implement it. Each has
its own views and perspectives. Each has a view of the correct role of
the Federal Government in what, Constitutionally, should be the primary
responsibility of the respective States.
While the Corps is supposed to implement the permit program, since
1979, when Attorney General Civiletti determined that EPA has the
ultimate authority to determine what is jurisdictional under all
Sections of the CWA including Section 404, there have been major
disagreements, often very acrimonious, between the staff of the two
agencies. It is quite possible that the full extent of the animosity
that has existed is not even known to the representatives of the
agencies that are testifying at this hearing.
The public has suffered with inconsistent and often arbitrary and
capricious decisions that have had dramatic effects on their lives and
the use of their private property because the lead agencies, the Corps
and EPA, have differing perspectives as do the review agencies, FWS and
NMFS. To compound the inconsistencies, the Corps boasts that its
decentralized management style is a benefit to the public. What it
fails to recognize is that there is a vast difference between
decentralized and inconsistent management.
It is inconsistent management that pervades the 404 Program and
plagues the Nation. A year ago, a colleague of mine and I decided that
there was a need to provide a training course on the limits of Corps
jurisdiction. We saw that this was especially needed in the dryland
West. Despite the fact that we are both highly versed in Corps
regulatory policy, we came to the conclusion that we could not offer
such a course because there was no consistent policy being implemented.
What the public is told by the Corps in one part of the Nation is not
necessarily what can be found in its regulations or what it is likely
to be told in another.
It is crucial that all of the terms, which the Corps uses to
specify the limits of its jurisdiction, be accurately and unambiguously
defined. They must be promulgated, to the extent that the limits
specified are consistent with the CWA and the Constitution, through the
formal procedures developed for implementation of the Administrative
Procedures Act (APA). Many of the Corps definitions related to
jurisdiction have not been promulgated through the APA process.
The most fundamental technical issue that must be addressed through
rulemaking in light of SWANCC is what is the necessary frequency,
duration and relation to the land surface of water to constitute a
``navigable water'' consistent with the language of Section 404 of the
CWA. It is the same issue that has needed to be addressed for decades.
This issue applies to how far from traditionally navigable waters,
natural streams should be regulate, which and how far distant drainage
and irrigation ditches should be regulated and what areas should be
called wetland navigable waters.
The longitudinal limit of Corps jurisdiction under Section 404 must
be defined in relation to the effect that the discharge of dredged or
fill material may have on interstate and/or foreign, commercial
navigation in traditionally navigable waters.
Other definitions need to be addressed as well. The ``neighboring''
part of the definition of the term ``adjacent'' must be redefined to
specify that it includes those morphologically disconnected wetlands
that receive surface flow from a jurisdictional tributary (what ever
that is) on a predictably, frequent basis. Today, districts of the
Corps, might determine that wetlands miles from a stream in the 100-
year floodplain are adjacent. Others have found that 200--3500 feet
defines the limit. Each regulator seems to make it up on the fly.
For a wetland to be deemed ``adjacent'' and, thus, jurisdictional
under Section 404, the wetland should be dependent for its existence,
at least in part, upon water received from the tributary. Thus, the
predictably regular inundation from the tributary should have a
recurrence frequency of no less than every 2 years, and perhaps more in
keeping with court rulings on OHWM, it should be at less than a 1-year
recurrence frequency, i.e., ordinarily occur.
Water movement by sheet flow or as groundwater TO a jurisdictional
tributary should NOT be determinant. Water on virtually all landscapes
moves toward stream channels either as overland flow or as ground-water
discharge. There is no scientific or legal basis to separate-out
morphologically disconnected wetlands from the rest of the nonwetland
landscape and regulate them. It has been a long-standing failing of the
404 Program by its fixated emphasis on wetlands, to suggest that they
are inherently more valuable or have greater function than the
nonwetland landscape. By so doing, many acres of nonwetlands have been
destroyed that have had higher overall ecological function and more
value to society than the wetlands that were avoided.
There is no definition of the term ``tributary'' within the context
of Section 404, this despite its central role in the definition of
``waters of the United States.'' It must be defined and its upper
limits determined by factoring frequency and duration of flow and
distance to a traditionally navigable water, such that there can be a
demonstrated effect on navigation from a discharge of dredged or fill
material. Not by the mere presence of an OHWM. The public should not
have to rely upon discussions of the limits of jurisdiction found only
in uncodified preambles to Corps regulations to determine what is and
is not a water of the U.S. For almost two decades the public was
subjected to the uncodified agency whim concerning migratory birds
until the Supreme Court struck it down. The Corps and EPA Memorandum of
Agreement on mitigation, contains similarly illegal concepts that have
not been promulgated in accordance with the Administrative Procedures
Act (APA). Mandatory compensatory mitigation is now spoken of as a
codified rule (much as the migratory bird rule was) as opposed to a
concept without basis in the CFR.
The terms ``perennial'', ``intermittent'' and ``ephemeral'' are
defined in the Corps nationwide Permit Notice from 2000, but are not
codified. All definitions related to jurisdiction must be defined and/
or redefined through application of the Administrative Procedures Act
and codified, not simply instated through a permit notice. The Corps
should redefine these terms so that they can be determined using flow
data. The USGS has standard definitions of each that have been in place
since 1923 (Meizner, O.E. 1923). These should be adopted.
The term ``isolated'' is defined in the Corps nationwide Permit
Notice from 2000 but not codified. All definitions related to
jurisdiction must be defined and/or redefined through application of
the APA and codified, not simply instated through a permit notice. As
currently defined, isolated is simply the absence of direct connection
or the absence of adjacency. If the Corps would produce an adequate
definition of the limits of its jurisdiction under Section 404, then
there would be no need for any definition of the term isolated.
Many of the landscape features that the Federal Government
regulates today do not meet the definition of wetlands promoted by the
National Research Council (1995) in Wetlands: Characteristics and
Boundaries, and in fact, do not meet an honest reading of the 1987
Wetland Delineation Manual (Environmental Laboratory 1987). My reading
of the NRC report is that it would not classify as wetlands most areas
where the water table infrequently or never reaches closer to the
surface than 12 inches for 7 days during the spring.
As for ``tributaries,'' cases across the country reveal that every
roadside ditch, culvert and storm sewer is likely as not to be called
tributary. The Corps should not regulate any constructed ditches that
are excavated in upland landscapes, nor should it regulate storm
drains, sewers, pipes, agricultural drain tiles, gutters and other
artificial conveyances, whether they potentially carry water to a
traditionally navigable water or not. Ditches and other such
conveyances are point sources and any pollutant arising from them that
reaches a traditionally navigable waterbody should be regulated under
the NPDES program. The Corps jurisdiction under Section 404 is limited.
The Corps recognized this in 1974 and Chief Justice reaffirmed it in
the SWANCC decision.
In a recent addition to the Corps Headquarters' Regulatory Branch
Web site entitled Information on West Nile Virus, the discusses the
question Should wetlands be drained to control mosquitoes? The Corps
answer was:
Because the Culex mosquito can breed in very small amounts of water,
eliminating temporary standing water in plastic containers,
discarded tires, or other water-holding containers around one's
property can greatly reduce breeding areas. Any stagnant water in
rain barrels, irrigation ditches, clogged gutters, backyard home
septic systems, and road-side ditches can serve as breeding sites.
The difference between these water-holding places and wetlands is
the presence of mosquito-eating predators. Wetlands are home to a
host of mosquito-eating beetles, backswimmers, water striders,
dragonfly larvae, etc. making them significantly less ideal
breeding sites for Culex mosquitoes.
Thus, on the one hand the Corps defends natural wetlands by
condemning ditches, etc., while across the Nation, ditch after roadside
ditch is being identified as wetlands and other navigable waters under
Section 404 and gives the regulatory protection afforded natural
waterbodies through the requirements to obtain permits to fill them and
to compensate for their loss.
There are many thousands of miles of conveyance that transport
sediments into natural waters including traditionally navigable waters,
that the Corps chooses not to regulate. They do not regulate all
roadside ditches--only selective ones. The do not regulate all culverts
and piped conveyances--only selective ones. This emphasizes the point
that water pollution cannot be prevented by simply calling some
channeled conveyances ``waters of the U.S.'' as has been the trend in
the last several years. Which channels are regulated and which are not,
generally are not based upon technically defensible criteria, but more
often upon the personal aesthetic of the individual regulator.
The fact that so many administrative appeals result in a decision
that districts did not adequately document their position supports our
contention that ``it's jurisdictional because I say it's
jurisdictional'' is frequently used by Corps regulators. The fact that
in many cases, after an appeal is found to have merit, districts simply
bolster their records and make the same decision again points to the
ineffectiveness of the appeal process itself. The rules governing
appeals eviscerate the role of Review Officer (RO). In many of the
Administrative Appeal (AA) decisions, the RO appeared to make
reasonable and fair decisions. However, as written, the rules allow the
districts to amend case files and in many instances retain the same
dubious jurisdictional determinations.
With regards to technical points of jurisdiction, too often the RO
indicates that the rules do not allow for the RO to independently make
judgment decisions. In such cases, it would be more appropriate for the
RO to seek technical advice from an ``independent'' third party [the
logical choice is the Environmental Laboratory staff in Vicksburg,
Mississippi through the Wetland Research Assistance Program (WRAP)
[although the independence might be questioned] rather than simply
giving deference to the districts opinion.
In the final analysis, Congress must dictate that an APA rulemaking
proceed promtly and encompass the full breadth of jurisdictional issues
that exist. Congress must follow-up on the agencies' performances. The
Corps and EPA must not be allowed to slide for another decade without
clarifying the limits of Federal jurisdiction. Furthermore, Congress
would serve the needs of the public if it would state clearly and
concisely in the law, the maximum extent of jurisdiction through
amendment of the Clean Water Act.
Literature Cited
Dunne, T. and L. B. Leopold, 1978. Water in environmental planning. W.
H. Freeman and Company: New York, pp. 1-818.
Environmental Laboratory. 1987. Corps of Engineers wetlands delineation
manual. Technical Report Y-87-1. US Army Engineer Waterways
Experiment Station, Vicksburg, Miss.
Heath, R. C. 1983. Basic ground-water hydrology. U.S. Geological
Survey, Water-Supply Paper 2220, Washington, DC. 84 p.
Leopold, Luna B. 1994 A View of the River. Harvard Univ. Press,
Cambridge, MA, 298 pp.
Meizner, O.E. 1923. Outline of ground-water hydrology, with
definitions. USGS. Water-Supply Paper 494, 71 p.
National Research Council. 1995. Wetlands: characteristics and
boundaries. William M. Lewis, Jr., chair., Committee on
Characterization of Wetlands. National Academy Press. Washington,
DC.
Studt, J. 1997. NRCS field indicators of hydric soils. Directorate of
Civil Works, Army Corps of Engineers. Washington, DC.
Williams, A. E. 1992. Clarification and interpretation of the 1987
Manual. Directorate of Civil Works, Army Corps of Engineers.
Washington, DC.
Winter, T.C., J.W. Harvey, O.L. Franke and W.M. Alley. 1999.
Groundwater and surface water a single resource. USGS Circ. 1139.
Denver, CO. 79 p.
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______
Responses of Robert J. Pierce to Additional Questions from Senator
Jeffords
Question 1. In Your testimony, you state, ``Congress would serve
the needs of the public if it would state clearly and concisely in the
law, the maximum extent of jurisdiction through amendment of the Clean
Water Act.'' In your oral testimony, you state,``. . . rulemaking is
essential to clarify this [whether ditches, ephemeral drains, waste
ponds, ephemeral wet spots are navigable waters.]'' Can you describe
this apparent contradiction?
Response. I see no contradiction in the two statements. First, and
in general terms, the executive branch must always comply with the
Administrative Procedures Act (APA) and conduct rulemaking to implement
any new or changed legislation.
At a more practical level, however, the history of Section 404 of
the CWA makes it clear that the public cannot count on any, one branch
of the Federal Government to make reasoned reforms. In fact, without
any change in legislation since 1977, and with only minor APA changes
in the Code of Federal Regulations (CFR) since 1986, the Environmental
Protection Agency (EPA) and the Corps of Engineers (COE) have
continuously increased the geographic extent of Section 404 navigable
waters jurisdiction while at the same time reducing the utility of
nationwide Permits (NWPs) which are the only mechanisms that provide
the public with a rapid permit response. The result is that the public
spends ever-increasing time and money to crawl through a permit process
that is protecting roadside ditches, animal waste ponds and so-called
``wetlands'' that need only have water within 12 inches of the surface
for as little as 7 days (five percent of the growing season) out of 730
days (frequency of one out of 2 years).
Indeed, the EPA and COE response to Solid Waste Agency of Northern
Cook County. v. Army Corps of Engineers (SWANCC) has not been to
retract jurisdiction as would be expected by the plain reading of the
decision, but to ignore their own written policies and to construct any
and all ``connections'' to navigable waters to retain jurisdiction over
isolated waterbodies and to further extend Federal jurisdiction. Thus,
today we see ``tributary'' status assigned to roadside ditches
excavated in uplands, ``underground ditches'' or storm sewers,
irrigation ditches, and agricultural drain tiles and connectivity
established by sheet flow over nonjurisdictional lands and water
flowing below ground and through nonjurisdictional, stormwater ponds.
Some district and circuit courts have upheld these jurisdictional
extensions while others have not. Judicial resolution of the issues
apparently must await Supreme Court rulings.
While I believe that Congress is ultimately responsible for the
ambiguous nature of the 404 Program and should take the initiative to
correct inconsistencies, Congress apparently lacks the will to do this
as witnessed by its failure to act on numerous efforts since 1977 to
reform Section 404 of the CWA. Indeed, it is my opinion that for
Congress to redraft Section 404 consistent with the Constitution, it
would have to limit jurisdiction to the ``navigable waters'' defined
under the Rivers and Harbors Act (RHA) of 1899. Section 9 of the RHA of
1899 establishes the full scope of Federal jurisdiction under the
Commerce Clause of the Constitution by prohibiting certain activities
in the first sentence of the Section and then limiting that prohibition
in the last sentence:
That it shall not be lawful to construct or commence the construction
of any bridge, dam, dike, or causeway over or in any port,
roadstead, haven, harbor, canal, navigable river, or other
navigable water of the United States until the consent of Congress
to the building of such structures shall have been obtained and
until the plans for the same shall have been submitted to and
approved by the Chief of Engineers and by the Secretary of Army:
Provided, That such structures may be built under authority of the
legislature of a State across rivers and other waterways the
navigable portions of which lie wholly within the limits of a
single State, provided the location and plans thereof are submitted
to and approved by the Chief of Engineers and by the Secretary of
Army before construction is commenced: And provided further, That
when plans for any bridge or other structure have been approved by
the Chief of Engineers and by the Secretary of Army; it shall not
be lawful to deviate from such plans either before or after
completion of the structure unless the modification of said plans
has previously been submitted to and received the approval of the
Chief of Engineers and of the Secretary of Army. The approval
required by this section of the location and plans or any
modification of plans of any bridge or causeway does not apply to
any bridge or causeway over waters that are not subject to the ebb
and flow of the tide and that are not used and are not susceptible
to use in their natural condition or by reasonable improvements as
a means to transport interstate or foreign commerce. [Emphasis
added].
By extension, such Constitutional limitation on jurisdiction
applies to all subsequent sections of the RHA including Section 10.
Apparently, the 56th Congress was more concerned about usurping State's
rights under the Constitution than have been those since the 95th
Congress last amended the CWA and stated:
It is the policy of the Congress to recognize, preserve, and protect
the primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution, to plan the development and use
(including restoration, preservation, and enhancement) of land and
water resources . . . [Section 101(b), CWA]
The COE reached the conclusion that Section 404 ``navigable
waters'' coincided with RHA ``navigable waters'' in 1974. On April 3,
1974, the COE published final regulations after review of comments
received on the May 10, 1973 proposal. In the Preamble to the final
regulation, the following statements were made:
Section 209.120(d)(1). Several comments and questions were received
concerning the different definitions which were assigned to the
terms ``navigable waters of the United States'' and ``navigable
waters''. In this regard, it is noted that the Corps regulatory
authority under the River and Harbors Act of 1899 (33 U.S.C. 401 et
seq.) speaks in terms of ``navigable waters of the United States''.
This term has received the benefit of over 100 years of judicial
definition and interpretation which has largely been based on the
constitutional extent to which the authority of the United States
can extend over the nation's waterways. Recognizing that the extent
of Federal authority over the nation's waterways has been an
evolutionary one and that recent judicial decisions have provided
additional guidance and direction as to the scope and extent of
this jurisdiction, the Corps recently undertook an extensive review
of all of the judicial decisions in this area, and substantially
revised and refined its administrative definition of this term to
more accurately reflect and incorporate this judicial guidance.
This revised definition, which was published in the Federal
Register on September 9, 1972 (37 FR 18289) and has been
subsequently included in the Code of Federal Regulations (33 CFR
209.260) asserts regulatory authority over many heretofore
unregulated waterways, as well as establishing the geographical
limits of this jurisdiction.
Section 404 of the FWPCA uses the term ``navigable waters'' which is
later defined in the Act as ``the waters of the United States.''
The Conference Report, in discussing this term, advises that this
term is to be given the ``broadest possible Constitutional
interpretation unencumbered by agency determinations which have
been made or may be made for administrative purposes.'' We feel
that the guidance in interpreting the meaning of this term which
has been offered by this Conference Report--to give it the broadest
possible Constitutional interpretation--is the same as the basic
premise from which the aforementioned judicial precedents have
evolved. The extent of Federal regulatory jurisdiction must be
limited to that which is Constitutionally permissible, and in this
regard, we feel that we must adopt an administrative definition of
this term which is soundly based on this premise and the judicial
precedents which have reinforced it. Accordingly, we feel that in
the administration of this regulatory program both terms should be
treated synonymously.
In the final regulation (April 3, 1974), one definition of
Navigable waters appears and reads:
(1) The term ``navigable waters of the United States'' and
``navigable waters'' as used herein mean those waters of the United
States which are subject to the ebb and flow of the tide, and/or
are presently, or have been in the past, or may be in the future
susceptible for use for purposes of interstate or foreign commerce
[See 33 CFR 209.260 for a more complete definition of these terms].
In support of and as a means of further clarification, the COE
simultaneously (April 3, 1974) released a Legal Review of Corps
Regulatory Permit Laws which originated in the Office of Counsel at COE
Headquarters.
In the majority opinion for the Supreme Court ruling in SWANCC,
Chief Justice Rehnquist wrote:
(a) In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121,
this Court held that the Corps had Sec. 404(a) jurisdiction over
wetlands adjacent to a navigable waterway, noting that the term
``navigable'' is of ``limited import'' and that Congress evidenced
its intent to ``regulate at least some waters that would not be
deemed ' navigable' under [that term's] classical understanding,''
[Id., at 133]. But that holding was based in large measure upon
Congress' unequivocal acquiescence to, and approval of, the Corps'
regulations interpreting the CWA to cover wetlands adjacent to
navigable waters. [See Id., at 135 139]. The Court expressed no
opinion on the question of the Corps' authority to regulate
wetlands not adjacent to open water, and the statute's text will
not allow extension of the Corps' jurisdiction to such wetlands
here.
(b) The Corps' original interpretation of the CWA in its 1974
regulations--which emphasized that a water body's capability of use
by the public for transportation or commerce determines whether it
is navigable--is inconsistent with that which it espouses here, yet
respondents present no persuasive evidence that the Corps mistook
Congress' intent in 1974.
Chief Justice Rehnquist makes two important points. First, the COE
conclusion (which was based at least in part on interpretations of the
Commerce Clause) that Section 404 of the CWA and Section 10 of the RHA
have identical limits of jurisdiction (with the exception that 404
extends to adjacent wetlands), was and is the correct interpretation.
Second, that the language of the CWA will not allow the COE to assert
jurisdiction over wetlands that are not adjacent to open water. In
using the term ``open water'', I assume that the Chief Justice was
referring to ``open navigable water'' as is used in the previous
sentence of the opinion and in other Supreme Court rulings.
In conclusion, it is my view that the public cannot rely upon any
one branch of government to rectify the inconsistencies and erroneous
interpretations of law and regulation that currently plague the Section
404 Program. It must seek remedies from all three branches. Thus,
Congress should state clearly and concisely in the law, the maximum
extent of jurisdiction through amendment of the CWA and rulemaking is
essential to clarify whether ditches, ephemeral drains, waste ponds,
ephemeral wet spots are navigable waters.
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__________
Statement of Dr. Scott Yaich, Ducks Unlimited, Inc.
Mr. Chairman, members of the committee, my name is Dr. Scott Yaich.
I am the Director of Conservation Programs at Ducks Unlimited, Inc.'s
(DU) National Headquarters in Memphis, Tennessee. I am certified as a
Professional Wetland Scientist and Certified Wildlife Biologist by the
Society of Wetland Scientists and The Wildlife Society, the
professional organizations of these respective scientific disciplines.
I have worked for DU since 2001, and previously served as Wetlands
Program Coordinator and Assistant Director for the Arkansas Game and
Fish Commission for 13 years. My current duties include responsibility
for overseeing DU's scientific review and response to issues related to
the Clean Water Act.
I appreciate the opportunity to speak with you today on behalf of
Ducks Unlimited. Our organization was founded in 1937 by concerned and
farsighted sportsmen and conservationists. Our mission is to conserve,
restore, and manage wetlands and associated habitats for North
America's waterfowl, and for the benefits these resources provide other
wildlife and the people who enjoy and value them. DU has grown from a
handful of people to an organization of over 1,000,000 supporters who
now make up the largest wetlands and waterfowl conservation
organization in the world. With our many private and public partners we
have conserved almost 11 million acres of habitat for waterfowl and
associated wildlife in the U.S., Canada, and Mexico. Importantly, Ducks
Unlimited is a science-based conservation organization. Every aspect of
our habitat conservation activity is rooted in the fundamental
principles of scientific disciplines such as wetland ecology, waterfowl
biology, and landscape ecology. Thus, our perspectives on the Clean
Water Act and related issues are based on our extensive grounding in
these scientific disciplines, and we believe that wetland and water
quality science can help bring insights to these complex issues.
WETLAND STATUS AND TRENDS
Of the estimated 221 million acres of wetlands originally present
in the United States, 53 percent (115.5 million acres) had been lost by
1997. (Citations in support of statements of fact in this testimony are
included in the accompanying report [``The SWANCC Decision:
Implications for Wetlands and Waterfowl,'' Ducks Unlimited, 2001] and/
or in DU's comments in response to the Environmental Protection
Agency's Advance Notice of Proposed Rulemaking [ANPRM], Docket ID
No.OW-2002-0050.) The Clean Water Act (CWA), initially passed in 1972,
is believed by many to have been an important factor in slowing the
rate of wetland loss from 458,000 acres/year during the 1950's-70's.
However, wetland loss still exceeds 100,000 acres/year, even in the
face of CWA protections and the implementation of important voluntary,
incentive-based restoration programs such as those provided through the
Farm Bill's conservation titles and the North American Wetlands
Conservation Act.
As a nongovernmental waterfowl habitat conservation organization,
DU has a long, productive history in working with voluntary, incentive-
based wetland conservation programs, both public and private. Virtually
all of our habitat accomplishments have been achieved through
partnerships, a large percentage with private landowners. Nevertheless,
despite the successes of DU and of many other organizations and
programs, the country is still experiencing a net loss of wetlands each
year. These losses not only have a cumulative negative impact on the
waterfowl that our million members and supporters care so passionately
about and contribute so much toward, but also on the nation's water
quality and related Federal interests.
The wetlands of the prairie pothole region are often considered the
prototypical ``geographically isolated wetland.'' Of the approximately
20 million potholes that once existed in the northern U.S., only about
7 million remain. While most of these wetlands are small they are
critically important, and this region is the most important breeding
area for ducks in North America. An estimated 50 percent of the average
total annual production of ducks comes from the potholes, and in wet
years 70 percent or more of the continent's duck production can
originate in this region. One analysis suggested that duck production
in the pothole region of the U.S. northern prairies would decline by
over 70 percent if all wetlands less than 1 acre were lost. However,
wetland losses far less than this would significantly impact waterfowl
numbers, and could result in closed waterfowl seasons with related
impacts. Wetlands in other areas of the country are also vital for
providing the breeding, migration and wintering habitat necessary to
support continental waterfowl populations.
Waterfowl are a tremendously valuable interstate and international
economic resource. Almost 3 million duck and migratory bird hunters
expended approximately $1.4 billion in 2001 for hunting related goods
and services, with 14 percent of that hunting taking place in a State
other than the one in which the participant resided. For example, in
North Dakota, 47 percent of the State's waterfowl hunters in 2001 were
non-residents, and in Arkansas over 42 percent of their 89,000
waterfowl hunters in 2002 traveled there from other States.
Furthermore, commerce tied to the waterfowl resource and other wetland-
associated fish and wildlife is not restricted to hunting. In 2001,
14.4 million people participated in watching waterfowl, with associated
expenditures and values also measured in the billions of dollars.
FEDERAL JURISDICTION: WHY IS THE ISSUE SO IMPORTANT TO DU?
The Clean Water Act (CWA) has been an important component of the
national framework of wetland conservation for over 30 years. It has
been one of the more successful environmental programs in the nation's
history. Many aspects of the country's water quality have improved
measurably since 1972, and wetland loss rates have declined. Much of
the progress in cleaning up the nation's water supplies has come in
association with establishment of Federal jurisdiction over waters and
wetlands that directly affect the nation's water quality, including
those occurring on private lands. However, due to the regulatory
elements of the Act, the exertion of this authority has generated
considerable regulatory and legal debate. Understanding of the
relationships between wetland and water science, the purposes of the
CWA, and the evolution of the Act's legislative and judicial history
can help bring insights to some of the existing confusion and passions.
DU is very concerned about the potential impacts of any change in
the definition of ``waters of the United States'' that could have the
effect of lessening jurisdictional coverage of important wetlands
important to waterfowl under the CWA. Such changes could rapidly negate
many of the conservation benefits that our volunteers and members have
worked so hard for over the last 66 years.
LEGISLATIVE AND JUDICIAL STATUS AND TRENDS
As a result of actions by the agencies, decisions by the courts,
and amendments to the CWA by Congress, there has been a steady
evolution of what wetlands have fallen within CWA jurisdiction over the
last 30 years. Then, in 2001, the Supreme Court's decision in the Solid
Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers
(henceforth SWANCC) invalidated one facet of the so-called Migratory
Bird Rule as a sole basis for determining jurisdictional wetlands. This
had the effect of confusing the scope of Federal jurisdiction over
which waters and wetlands are subject to Section 404 of the CWA.
However, while retaining navigable waters, their tributaries, adjacent
wetlands, and wetlands which cross State lines within the definition of
``waters of the United States,'' their decision did not make clear the
new jurisdictional limits. This resulted in regulatory uncertainty,
which the agencies, the regulated community, including Ducks Unlimited,
and other interested parties are still trying to understand.
Nevertheless, in their SWANCC decision the Supreme Court explicitly
acknowledged that ``Congress passed the CWA for the Stated purpose of
``restor[ing] and maintain[ing] the chemical, physical, and biological
integrity of the Nation's waters.'' Their decision also reaffirmed
Federal jurisdiction over navigable waters, their tributaries, and
adjacent wetlands. They further stated that ``we recognized that
Congress intended the phrase 'navigable waters' to include 'at least
some waters that would not be deemed navigable' under the classical
understanding of that term.'' They also re-stated the observation in
their United States v. Riverside Bayview Homes decision that
``Congress's concern for the protection of water quality and aquatic
ecosystems indicated its intent to regulate wetlands 'inseparably bound
up with the 'waters of the United States.'''' The Court went on to
clarify in their SWANCC decision that ``It was the significant nexus
between the wetlands and 'navigable waters' that informed our reading
of the CWA in Riverside Bayview Homes.''
With these statements the Supreme Court seemed to clearly view the
connection between wetlands and ``navigable waters'' as a critical
determinant for exercising Federal CWA jurisdiction over wetlands.
Ultimately, however, their decision called into question the status of
waters and wetlands that are non-navigable, geographically isolated, or
intrastate, i.e., those lacking an apparent significant nexus to
navigable waters.
CLARIFYING JURISDICTION: KEY DEFINITIONS
To shed light on the question of waters and wetlands that are
jurisdictional in view of SWANCC, focus should be placed on the
definitions of ``tributary,'' ``adjacent,'' and ``significant nexus''
as they relate to the interrelationships between geographically
isolated wetlands and navigable waters. The regulatory definition of
``tributary'' seems to have achieved somewhat of a consensus in the
courts over the last few decades. However, explicit clarification of
this definition would be beneficial.
The previously cited recent assertions of the Supreme Court carry
an implicit, but clear recognition that water quality of navigable
waters is directly related to water quality in ``adjacent'' wetlands.
The Court thus recognized wetland function as being an essential
element of proximity and determination of Federal jurisdiction, and
accepted that adjacency carries with it the presumption of a functional
relationship, i.e., a ``significant nexus,'' between the wetlands and
navigable waters. Thus, ``adjacent'' is another key term requiring
definition.
In light of the acknowledged interrelationship of the Court's use
of the terms ``adjacent'' and ``significant nexus,'' we suggest that
clarity might be advanced in practice by replacement of these two terms
with a single one, ``functionally adjacent.'' The central issue here
would be the recognition that adjacency, from the standpoint of water
quality maintenance, should not be viewed as being simply limited by
physical proximity, but rather viewed in terms of functional
relationships. Thus, functionally adjacent wetlands could be physically
distant from a navigable water (just as a surface tributary deemed
jurisdictional may be located many miles upstream of a navigable
water), yet its direct functional linkage to (i.e., its significant
nexus with) the navigable water for purposes of maintaining water
quality as directed by the CWA would remain as the central element of a
jurisdictional decision.
WETLAND HYDROLOGIC FUNCTIONS AND RELATED VALUES
Wetlands provide a broad array of ecosystem functions, all carrying
some measure of societal value, but those most relevant to the CWA and
Federal jurisdiction are the hydrologic and biogeochemical functions.
Our appended complete comments on the ANPRM provide many literature
citations and examples for the functions of ``surface water storage and
flood abatement,'' ``groundwater relationships,'' and ``water quality
maintenance'' performed by wetlands, thereby providing a significant
nexus with navigable waters.
Virtually all wetlands improve the quality of water that they
receive and then discharge. Evidence of the societal value of those
water quality services is demonstrated by the actions of New York City
to initiate a $250 million program to acquire and protect up to 350,000
acres of wetlands and riparian lands in the Catskills. The city is
taking this action to protect the quality of its water supply as an
alternative to constructing water treatment plants which could cost as
much as $6-8 billion. In South Carolina, the wetland services provided
by the Congaree Swamp negated the need for a $5 million wastewater
treatment plant.
All wetlands provide surface water storage and flood abatement
functions, and the cumulative impacts of wetland loss have recently
been seen in prominent examples of flooding on the Red, Missouri and
Missisippi rivers. As another example, small pothole basins in the
Devil's Lake watershed in North Dakota could store 72 percent of the
total runoff from a 2-year frequency flood and approximately 41 percent
of the total runoff from a 100-year frequency flood. To illustrate the
recognition of the societal values associated with this flood abatement
function, the city of Boston is acquiring 5,000 acres of wetlands in
the Charles River watershed to avoid the necessity of constructing a
$100 million dam for flood control. In a related study, the U.S. Army
Corps of Engineers determined that flood damages would increase by $17
million per year if the 8,400 acres of wetlands in the Charles River
basin were drained. Thus, apparently geographically isolated wetlands
are often in fact functionally adjacent to navigable waters that are
clearly jurisdictional from the perspective of the CWA and other
Federal interests, such as flood control.
Finally, there are many examples of the direct functional linkages
via groundwater connections between water in wetlands with that of
navigable waters. Isolated and other wetlands very often contribute to
groundwater recharge, and this groundwater then continues to move
downslope toward intermittent or flowing streams ultimately terminating
in navigable waters. For example, 20-30 percent of the water loss from
prairie wetlands can be seepage to groundwater. Subsequent groundwater
discharge into flowing streams over 16 miles away from these isolated
wetlands has been documented. The sandhill wetlands of Nebraska have
direct linkages to the High Plains (Ogallala) aquifer and rivers such
as the Platte and Missouri through groundwater recharge from the
surface and subsequent discharge to the rivers. Thus, the demonstrated
linkages between geographically isolated wetlands, groundwater, and
navigable waters supports the contention that adjacency and significant
nexus for determining jurisdictional wetlands should be interpreted
from a functional perspective if water quality is to be protected as
intended by the CWA.
IMPLICATIONS OF REDUCING JURISDICTIONAL WETLANDS
There would be significant implications to the status of wetlands,
and waterfowl and other associated resources, if Clean Water Act
protections are removed from a broad spectrum of wetlands. If
hydrologic links between wetlands and navigable waters are recognized
when defining ``adjacency,'' ``tributary,'' and ``significant nexus,''
then the CWA might continue being a factor in stemming wetland loss.
However, if these terms are not defined in a hydrologic context, the
number of wetlands afforded Section 404 protection will unquestionably
decrease and have a significant negative effect on waterfowl
populations. For example, the appended DU 2001 report estimated that 96
percent of the wetlands and 86 percent of the wetland acreage in the
prairie pothole region might no longer be considered jurisdictional
under the CWA. Even a very small increase in the annual rate of wetland
loss could elevate loss rates to the high levels of the 1950's to
1970's, approximately 450,000 acres/year, and move the Nation even
farther away from achieving President Bush's goal of no-net-wetland
loss.
CONCLUSION
Rule-making decisions hinging on the definitions of ``isolated
wetland,'' ``adjacent'' and ``significant nexus'' have the potential to
reverse 3 decades of progress in slowing the rate of net wetland loss
and degradation. While DU strongly supports the use and expansion of an
incentive-based approach to wetlands conservation, State, Federal and
non-governmental conservation programs are unlikely to be funded at
levels sufficient to offset these losses. Ducks Unlimited agrees with
much of the rest of the regulated community that, in light of the
uncertainty and confusion introduced by the SWANCC decision,
clarification of jurisdictional wetlands and waters is important and
overdue. However, we believe that this clarification can be
expeditiously provided through administrative guidance processes of the
agencies. We believe that administrative definition of the terms
important to determining ``waters of the U.S.'' should be strongly
based on the related wetland and water quality science to address the
existing scope of the Clean Water Act. This would at least restore the
level of certainty and stability in the regulatory process and the
level of wetlands protection that existed prior to SWANCC. In any case,
changes to the administration of the Act, proposal of a rule, or
amendments to the Act should only be undertaken if they strengthen
protection of the Nation's wetlands.
Thank you for this opportunity to present our views on this issue,
one that is central to the mission of our organization and the
commitment of our million members, volunteers and supporters. Please do
not hesitate to call upon us for any reason regarding these important
issues. I would be happy to try to answer any questions you might have.
______
Responses of Scott C. Yaich to Additional Questions from Senator
Jeffords
Question 1. What is the mission of Ducks Unlimited?
Response. Our organization's mission statement is: ``Ducks
Unlimited conserves, restores, and manages wetlands and associated
habitats for North America's waterfowl. These habitats also benefit
other wildlife and people.''
Question 2. You indicated in your testimony that duck and migratory
bird hunters spent $1.4 billion for hunting-related goods and services.
Can you break that number down by State or region? Can you break that
number down by sector?
Response. Please see Table 21, page 76 in the attached file,
``USFWS 2001 Hunting Survey,'' for a complete break down of the $1.4
billion migratory bird-related expenditures by sector (i.e., category
of expenditure). This report, ``2001 National Survey of Fishing,
Hunting, and Wildlife-Associated Recreation,'' is produced by the U.S.
Fish and Wildlife Service and is available at: www.census.gov/prod/
2003pubs/fhw01-us.pdf . Expenditures by type of hunting (e.g.,
migratory bird, big game, etc.) are not broken down by State in this
report. However, to address your request we have used the report's
estimate of the number of migratory bird hunters for each State (Table
56, page 104) to calculate an estimate of expenditures by State (see
appended Table 1) based on the $1.4 billion national total. Although
these State-specific estimates are imprecise because of small
statistical sample sizes and assumptions such as equivalent
expenditures for migratory bird hunters among States, they nevertheless
provide useful perspective of the economic importance of migratory bird
hunting in each State.
Question 3. Are wetlands that aren't connected to other waterbodies
any less important for wildlife than connected wetlands?
Response. I will assume that by ``wetlands that aren't connected to
other waterbodies'' you have the phrase ``geographically isolated
wetlands'' in mind and are referring to the distinction between
wetlands connected by surface waters to flowing waters versus those
lacking such a surface water connection. From that perspective,
wetlands lacking a surface connection to clearly jurisdictional waters
are no less important for wildlife than wetlands with such a linkage.
All of the many diverse types of wetlands found across the Nation,
e.g., large versus small, connected versus unconnected, permanent
versus seasonal, are all important in their own way for fish and
wildlife. Wetlands with a surface linkage to flowing waters can be
essential spawning habitat for many species of fish. For instance, some
recreationally important species such as crappie are dependent upon
seasonally flooded wetlands that may be dry for most of the year. On
the other hand, geographically isolated wetlands can be critically
important habitat for other wildlife such as waterfowl. For example,
the prairie potholes of the northern great plains are largely
considered geographically isolated but they constitute the wetland
foundation for the most important breeding area on the continent for
the most economically important species of ducks. An estimated 50
percent of the average total annual production of ducks comes from the
pothole region, and in wet years 70 percent or more of the continent's
duck production can originate in this region. The lack of a surface
water connection to these wetlands and their often less than permanent
inundation helps prevent fish from surviving in these wetlands. In this
case, the absence of fish leads to a high productivity of invertebrates
which are a critical source of food for waterfowl on the breeding
grounds. Wetlands with even small fish in them are far less valuable
for waterfowl in production areas than are wetlands with a surface
water connection.
Wetlands lacking a surface water connection to jurisdictional
waters are also often smaller than those with such connections. Small
wetlands are not only at a disproportionately higher risk of being
lost, but they also tend to provide different functions than large
wetlands. They are typically shallower than large wetlands, warm more
quickly, have a larger ratio of vegetated area to surface acreage, dry
more frequently, and possess a greater perimeter:size ratio. These
characteristics are typically associated with functional attributes
such as increased productivity of vegetation and invertebrates, and
contributions to groundwater. For example, one analysis by the U.S.
Fish and Wildlife Service suggested that waterfowl production in the
pothole region of the U.S. northern prairies would decline by over 70
percent if all wetlands less than 1 acre were lost.
While we have only included a few examples here, all types of
wetlands are important to wildlife and fish, each in their own ways.
Geographically isolated wetlands are no less important than
geographically connected wetlands, and in many cases are more important
to many species of wildlife, some which are tremendously important and
economically valuable. However, as discussed below in our response to
question 4, recognition that most of our nation's wetlands are indeed
connected to jurisdictional waters, even though the connections may not
be via surface water, is an even more important issue.
Question 4. Please elaborate on the concept of ``functional
adjacency'' referred to in your testimony.
Response. One of Ducks Unlimited's primary objectives with our 27-
page response to the January 2003 Advance Notice of Proposed Rulemaking
was to help promote an understanding that while many wetlands may have
the appearance of being ``geographically isolated,'' the overwhelming
majority of all wetlands in the U.S. are in fact not hydrologically or
functionally isolated. Thus, there exists a hydrologic linkage that,
consistent with the stated purpose and intent of the Clean Water Act
(CWA) and important subsequent case law, constitutes a ``significant
nexus'' between these wetlands and other jurisdictional waters. In
other words, most so-called ``isolated'' wetlands are, in fact,
functionally adjacent to navigable waters. Because of the functional
linkages between wetlands and other waters, wetland science and
classification does not and cannot separate out so-called ``isolated''
wetlands. Thus, in all but some very narrow instances of wetland types,
the phrase ``isolated wetland'' is a legal or regulatory construct
lacking a scientific basis.
There is a sound basis in the CWA and related judicial decisions
for interpreting wetland connections to traditionally navigable waters
from the science-based functional perspective. Citing the Supreme
Court's earlier decision in United States v. Riverside Bayview Homes
(474 U.S. 121, 1985) in their SWANCC decision, the majority stated that
``we recognized that Congress intended the phrase 'navigable waters' to
include 'at least some waters that would not be deemed navigable' under
the classical understanding of that term'' (Id., at 133). They also re-
stated their Riverside Bayview observation that ``Congress's concern
for the protection of water quality and aquatic ecosystems indicated
its intent to regulate wetlands 'inseparably bound up with the 'waters
of the United States'''' (Id., at 134). They go on to clarify in their
SWANCC decision that ``It was the significant nexus between the
wetlands and 'navigable waters' that informed our reading of the CWA in
Riverside Bayview Homes'' (U.S. Case No. 99-1178, para. 12).
With these statements the Supreme Court clearly viewed the
connection between wetlands and ``navigable waters'' as a critical
determinant for exercising Federal CWA jurisdiction over wetlands.
Ultimately, however, their decision resulted in questions regarding the
status of waters and wetlands that are non-navigable, geographically
isolated, or intrastate, i.e., those lacking an apparent significant
nexus to navigable waters. Therefore, to address the issue of waters
and wetlands that are jurisdictional in view of SWANCC, the focus has
been placed on the definitions of ``tributary,'' ``adjacent,'' and
``significant nexus'' as they relate to the interrelationships between
geographically isolated wetlands and navigable waters.
Past court interpretations, at all levels, of what constitutes a
tributary seem to overwhelmingly support a broad definition. Because of
the obvious ability of any pollutant or fill material to flow downhill
through a tributary watercourse, even intermittently, and ultimately
degrade water quality of a downstream navigable water, the courts have
consistently recognized the functional connections of tributary water
to navigable waters. This has generally been the case for even altered
or artificial connections such as channelized streams and drainage
ditches. The surface water relationships between tributaries and
navigable waters are apparent and easily observed, and the effect of
this perspective has been to responsibly provide CWA protections to
waters with clear surface connections to navigable waters.
In SWANCC, the Supreme Court's view of wetlands with respect to the
issue of jurisdiction seemed to search for a similarly obvious physical
connection to navigable waters. Their discussion placed an emphasis on
isolation and adjacency, terms usually used within the context of
physical proximity. Although the seeming importance of proximity may
appear intuitive if one looks only at surface water connections between
wetlands and navigable waters, this limited perspective fails to
recognize the functional relationships that generally exist between
these waters, even in the absence of surface connections. Nevertheless,
these functional linkages have a direct impact on Federal interests
such as water quality, flood storage and damage abatement, and
navigation, and thus a direct bearing on the issue of jurisdiction.
Therefore, the regulatory definitions of adjacency and significant
nexus are critical to resolving the limits of Federal jurisdiction in
addressing Congress' intent with the CWA ``to restore and maintain the
. . . integrity'' of the Nation's waters. We believe that these
regulatory definitions should be accurate and science-based, and
functional adjacency more accurately represents the genuine, physical
connections between wetlands and other jurisdictional waters than does
mere geographic adjacency and connection via surface flow.
Riverside Bayview and other Section 404-related cases in which
adjacency was central to evaluating jurisdiction have tended to
interpret the term from within a strictly geographic context. However,
the Supreme Court's ruling in Riverside Bayview was at the same time
based on an implied connection between wetlands and the navigable
waters to which they were adjacent but not necessarily connected via
surface waters. The Court's previously cited and other assertions
carried an implicit but clear recognition that water quality of
navigable waters is directly related to water quality in wetlands
located in close physical proximity even if not directly connected. The
Supreme Court thereby implicitly acknowledged wetland function as being
an essential element of proximity and determination of Federal
jurisdiction. In SWANCC, the Court re-stated that ``It was the
significant nexus between the wetlands and 'navigable waters' that
informed our reading of the CWA in Riverside Bayview Homes'' (U.S. Case
No. 99-1178, para. 12). Therefore, the Court accepted that adjacency
carries with it the presumption of a functional relationship, i.e., the
significant nexus, between the wetlands and navigable waters.
A functional foundation for jurisdictional decisions related to
wetlands, whether geographically isolated or not, would help advance
the discussion beyond having to attempt to base jurisdictional
decisions on what could otherwise be an arbitrary delineation of what
constitutes adjacency. In addition, this approach is lent support by
the recent report on ``Compensating for Wetland Losses Under the Clean
Water Act'' (National Research Council 2001). Recognizing the
advancements in wetland science over the last 30 years, that report
places some emphasis on the use of wetland functional assessment to
provide an avenue for improving wetland mitigation within the CWA. In
addition, the U.S. Army Corps of Engineers' December 24, 2002
Regulatory Guidance Letter No. 02-2 (p.3) on``. . . Compensatory
Mitigation Projects . . . Pursuant to Section 404 of the Clean Water
Act . . . ,'' positively acknowledged the recommendations of the
National Research Council's report and placed a special emphasis on
``one-to-one functional replacement'' of wetlands.
Therefore, in light of the acknowledged interrelationship and
existing judicial precedence involving these terms (i.e., ``adjacent''
and ``significant nexus''), we suggest that conceptual clarity and a
scientific basis for Federal jurisdiction would be advanced by
replacement of these two terms with a single one, ``functional
adjacency.'' The central issue here would be the recognition that
adjacency, from the standpoint of water quality maintenance as the
primary purpose of the CWA, cannot be viewed as being simply limited by
physical proximity, but rather must be viewed in terms of functional
linkages. Thus, functionally adjacent wetlands might be physically
distant from a navigable water (just as a surface tributary deemed
jurisdictional may be located miles upstream of a navigable water), yet
its direct functional linkage to (i.e., its significant nexus with) the
navigable water for purposes of maintaining water quality as directed
by the CWA would remain as the central element of a jurisdictional
decision.
Question 5. Ducks Unlimited does extensive wetlands restoration
work. In your comments regarding the ANPRM you make clear that the
benefits of your work and that of programs like the Wetlands Reserve
Program, and the U.S. Fish and Wildlife Service's Partners for Fish and
Wildlife Program aren't sufficient to ensure habitat for ducks.
Response. The statement above is an accurate reflection of a
portion of our comments. If there is a question related to this point,
or an issue upon which you would like us to elaborate, we stand
prepared to provide that at any time.
Question 6. How important is duck hunting and other wildlife-
related recreation to the economy?
Response. The report, ``2001 National Survey of Fishing, Hunting,
and Wildlife-Associated Recreation,'' referenced in our response to
Question 1 and attached as an electronic file, contains a wealth of
information related to the importance of duck hunting and other
wildlife-related recreation to the U.S. economy. Over 82 million U.S.
residents 16 years old and older participated in wildlife-related
recreation in 2001. Their expenditures totaled $108 billion. The
nation's 37.8 million hunters and anglers expended $70.0 billion in
2001, including $35.6 billion on fishing, $20.6 billion on hunting, and
$13.8 billion on items used for both. In addition, other economic
studies have indicated that total economic impacts are three or more
times larger than direct expenditures. For example, a similar survey in
1991 estimated that with their expenditures of $1.3 billion, waterfowl
hunters had a total economic multiplier effect of $3.9 billion
considering the 46,000 additional jobs and $176 million in sales and
income tax revenues produced. In 2001, the 3.0 million migratory bird
hunters devoted 29 million days on 24 million trips for hunting these
birds, with much of this activity being dependent upon wetland
habitats. The 2001 survey found that 14 percent of this migratory bird
hunting activity was interstate in nature, with this commerce being
particularly significant in particular regions. For example, in North
Dakota, with its large number of prairie pothole wetlands and
associated waterfowl resources, 47 percent of the State's approximately
64,000 waterfowl hunters in 2001 were non-residents. In Arkansas, there
were approximately 89,000 waterfowl hunters in 2002 and over 42 percent
traveled there from other States. Almost all of the waterfowl harvested
in mid-and southern latitude States such as Arkansas migrate there from
northern production areas that contain abundant wetlands, most of which
would be considered ``geographically isolated.''
In addition to the economics associated with hunting and fishing,
the 2001 survey estimated that there were 66.1 million wildlife
watchers in the U.S. who spent $38.4 billion annually. This activity
was most common among citizens over 35 years old, peaking with 39
percent of 55-64 year-olds participating in wildlife-observation at
their residences. A relatively high percentage of the U.S. population
with 4 years of college (34 percent) or more (41 percent) actively
participated in this form of residential wildlife-related recreation.
Nearly all wildlife observers (e.g., 96 percent of residential
observers) watch birds. The majority of wildlife watching done away
from the home by almost 22 million people was in association with
wetlands and other water bodies. Furthermore, waterfowl were observed
or photographed more than any other group of wildlife by those who took
trips away from their home to watch wildlife.
The statistics cited here highlight only a few of the results
reported in the complete U.S. Fish and Wildlife Service's ``2001
National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation.'' The report contains many other data which underscore the
importance of hunting and wildlife-related recreation to the U.S.
economy, highlight the breadth and magnitude of the U.S. population
involved in this personal activity, and documents the dependence of a
high percentage of this activity on the nation's wetland and water
resources.
Estimated expenditures on migratory bird hunting
------------------------------------------------------------------------
State Estimated expenditures
------------------------------------------------------------------------
Alabama................................... $41,184,888
Alaska.................................... *$6,069,352
Arizona................................... $26,878,558
Arkansas.................................. $74,132,798
California................................ *$49,855,390
Colorado.................................. *$23,843,882
Connecticut............................... \1\
Delaware.................................. *$3,468,201
Florida................................... *27,745,608
Georgia................................... *$37,283,161
Hawaii.................................... \1\
Idaho..................................... *$16,473,955
Illinois.................................. *26,011,508
Indiana................................... *13,005,754
Iowa...................................... *$24,277,407
Kansas.................................... $34,248,485
Kentucky.................................. *$24,710,933
Louisiana................................. $63,728,195
Maine..................................... \1\
Maryland.................................. *$20,375,681
Massachusetts............................. *$8,236,978
Michigan.................................. *$23,843,882
Minnesota................................. $79,768,624
Mississippi............................... $33,814,960
Missouri.................................. *$29,913,234
Montana................................... *$9,971,078
Nebraska.................................. $20,809,206
Nevada.................................... $12,572,229
New Hampshire............................. *$2,601,151
New Jersey................................ \1\
New Mexico................................ *$14,739,855
New York.................................. *$43,786,038
North Carolina............................ $44,219,564
North Dakota.............................. $26,445,033
Ohio...................................... *$30,346,759
Oklahoma.................................. $35,115,536
Oregon.................................... *$18,208,056
Pennsylvania.............................. *$36,849,636
Rhode Island.............................. \1\
South Carolina............................ $30,780,284
South Dakota.............................. $22,109,782
Tennessee................................. $43,352,513
Texas..................................... $216,762,566
Utah...................................... $22,543,307
Vermont................................... \1\
Virginia.................................. *$19,075,106
Washington................................ *$21,676,257
West Virginia............................. \1\
Wisconsin................................. *$23,843,882
Wyoming................................... *$3,901,726
------------------------------------------------------------------------
* Estimate based on small sample size.
\1\Sample size too small to report data reliably
__________
Statement of the American Farm Bureau Federation
The American Farm Bureau Federation wishes to submit the following
statement for the hearing record.
The American Farm Bureau Federation's farmer and rancher members
produce virtually every agricultural commodity grown or raised
commercially in the United States. They own or lease significant
amounts of land on which they depend for their livelihoods and upon
which all Americans rely for food and other basic necessities. In
recent years farmers and ranchers have become increasingly subjected to
restrictive laws and regulations that impair their ability to farm
efficiently, and, in some instances, have eliminated their ability to
farm altogether. The protection of wetlands under Section 404 of the
Clean Water Act (CWA) poses one of the more onerous regulatory problems
production agriculture faces today.
While American farmers and ranchers have the highest production
rates in the world, multiple layers of restrictive regulations at the
local, State and national levels have impaired their ability to farm
and ranch efficiently in an increasingly competitive global market. The
type of land-use restriction placed on farmers and ranchers by such an
expansive regulatory interpretation of the CWA is far beyond what
Congress intended, at best creating uncertainties about permissible
conduct and at worst exposing farmers and ranchers pursuing routine
farming activities to substantial penalties.
Section 404 of the CWA, 33 U.S.C. ' 1344, regulates ``the discharge
of dredged or fill material into the navigable waters at specified
disposal sites.'' From its inception in 1972, the Section 404 permit
program has been a very controversial, complex and contentious program.
Its application and misapplication to farms and farming have played a
key role in its evolution.
While Congress has rejected Federal land-use controls, the Section
404 wetlands program has, unfortunately proven an effective mechanism
to control portions of the nation's farming and ranching landscape.
Federal agencies, especially the Environmental Protection Agency, the
Army Corps of Engineers (Corps) and the Fish and Wildlife Service have
expanded the reach of the Section 404 wetlands program far beyond
``navigable waters'' and wetlands immediately adjacent to ``navigable
waters.'' Section 404 has become ``a symbol to many Americans of how a
well-intentioned legislative initiative can turn into a quagmire of
disruption, frustration, and bureaucratic entanglement for ranchers,
farmers, foresters, and average citizens of this country.''\1\
---------------------------------------------------------------------------
\1\A Legislative History of the Clean Water Act of 1977: A
Continuation of the Legislative History of the Water Pollution Control
Act (``Legislative History'') 902 (1978) (statement of Sen. Bentsen,
(D-TX))
---------------------------------------------------------------------------
The Clean Water Act authorizes the U.S. Army Corps of Engineers to
exercise limited jurisdiction over navigable waters. Farm Bureau does
not question the power of Federal agencies to regulate the discharge of
a pollutant into ``navigable'' interstate waterways or adjacent
wetlands. Proximity to ``navigable'' waters is very important and
clearly helps define the outer limits of Federal CWA authority. In
Solid Waste Agency of Northern Cook County v. United States Army Corps
of Engineers ET AL. 531 U.S. 159 (2001) (SWANCC), the Court limited
Federal jurisdiction to ``navigable waters'' and to wetlands
immediately adjacent to ``navigable waters.''
The majority and minority opinions both held that mere hydrological
connection is not enough to claim Federal jurisdiction and emphasized
that there must be a clear and compelling connection between
traditional navigability and the wetlands or waters to be regulated by
Federal agencies. The SWANCC decision emphasized that ``navigable
waters'' define the limits of the Clean Water Act jurisdiction and that
. . .
``The term 'navigable' has at least the import of showing us what
Congress had in mind as its authority for enacting the CWA: its
traditional jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so made.''
The Court also stated that the Corps' . . .
``interpretation of the CWA, promulgated 2 years after its enactment,
is inconsistent with that which it espouses here. Its 1974
regulations defined Section 404(a)s 'navigable waters' to mean
``those waters of the United States which are subject to the ebb
and flow of the tide, and/or are presently, or have been in the
past, or may be in the future susceptible for the use for purposes
of interstate or foreign commerce.'' 33 CFR Section 209.120(d)(1).
The Corps emphasized that it is the water body's capability of use
by the public for purposes of transportation or commerce which is
the determinative factor.'' Section 209.260(e)(1).
Importantly, while the Supreme Court decided SWANCC on statutory
grounds, it stated that the government's expansive interpretation of
its jurisdiction under the CWA in the ``migratory bird rule'' raised
``serious constitutional questions.'' First, there is a ``significant
constitutional question'' whether birds supply a sufficient connection
to commerce to bring all land and water used by birds within the
Federal Government's ``commerce power.'' Second, asserting such broad
Federal authority ``would result in a significant infringement of the
States' traditional and primary power over land and water use''--power
reserved to the States by the U.S. Constitution's Tenth Amendment.
The U.S. Supreme Court in the SWANCC case clearly rejected the
Corps of Engineers' claim of Clean Water Act jurisdiction over non-
navigable, isolated, intrastate waters under the Migratory Bird Rule.
Of critical importance to the Court's conclusion was the plain text of
the CWA, which grants jurisdiction over only ``navigable waters.'' The
Court found that ``[t]he term 'navigable' has at least the import of
showing us what Congress had in mind as its authority for enacting the
Clean Water Act: its traditional jurisdiction over waters that were or
had been navigable in fact or which could reasonably be so made.''
SWANCC, 531 U.S. at 172. Because the Migratory Bird Rule was based on
Congress' broader power to regulate activities substantially affecting
interstate commerce--not on Congress' ``commerce power over
navigation''--the Migratory Bird Rule exceeded the scope of the CWA. As
the Court observed, ``this is a far cry, indeed from the 'navigable
waters' and 'waters of the United States' to which the statute by its
terms extends.''
SWANCC clearly eliminates CWA jurisdiction over isolated waters
that are intrastate and non-navigable, where the sole basis for
asserting CWA jurisdiction is the actual or potential use of the waters
as habitat for migratory birds. Similarly, jurisdiction cannot be based
on other affecting commerce clause rationales in the Corps' existing
regulations at 328.3(a)(3)(i)-(iii) (use of the water by interstate or
foreign travelers for recreational or other purposes; the presence of
fish or shellfish that could be taken and sold in interstate commerce;
use of the water for industrial purposes by industries in interstate
commerce.) These factors, like the Migratory Bird Rule, are founded on
an ``affecting interstate commerce'' theory of jurisdiction, not on
Congress' commerce power over navigation. Therefore, these other
factors are impermissible in light of SWANCC and cannot be used as a
basis for jurisdiction.
Prior to the SWANCC decision, the Migratory Bird Rule had allowed
the Corps and EPA to essentially assert jurisdiction over any water,
anywhere under the ``affecting commerce'' theory of jurisdiction. Under
such a theory, field regulators did not have to determine whether
something was a ``tributary,'' whether something was ``adjacent,'' or
whether something qualified as an ``impoundment.'' Now that the
Migratory Bird Rule is gone, however, the meaning of these other
regulatory terms is critical. In fact, the Corps' existing nationwide
permit regulations already define the term ``isolated waters'' as
something that is not a tributary and not adjacent, thus calling into
question the meaning of these other terms. See 33 C.F.R. ' 330.2(e).
The Army Corps of Engineers and the Environmental Protection Agency
must conduct a rulemaking not only to define the term ``isolated'' but
more importantly to establish clear definitions of the specific terms
on which the agencies are relying to establish jurisdiction:
``tributary,'' ``adjacent,'' ``impoundment,'' and ``ordinary high water
mark.'' All these terms are either vague or undefined under the
existing regulations. In the absence of a rulemaking to define these
terms, field regulators have unbridled discretion to make up meaning
(and thereby jurisdiction) on an ad-hoc, arbitrary, and inconsistent
basis.
Fundamental principles of due process and good government require
the regulatory agencies to clearly and uniformly set forth the scope of
Federal jurisdiction. The regulated public must be given fair notice as
to what conduct is prohibited under the CWA. Vague and ambiguous
regulatory requirements lead to lengthy, costly and often unnecessary
permitting requirements for critical public infrastructure and private
projects.
AFBF believes the SWANCC decision clearly limited the scope of
Federal CWA jurisdiction to ``navigable waters'' and wetlands and other
waters that abut ``those waters of the United States which are subject
to the ebb and flow of the tide, and/or are presently, or have been in
the past, or may be in the future susceptible for use for purposes of
interstate or foreign commerce.'' 33 CFR Section 209.120(d)(1). In
1974, the Corps' intent was to ``emphasize that it is the water body's
capability of use by the public for purposes of transportation or
commerce which is the determinative factor.'' Section 209.260(e)(1). We
encourage the agencies to reaffirm this position. The fact that this
intent was so clearly stated so soon after enactment of the CWA
reflects most accurately the intent of Congress when it enacted the
CWA.
We look forward to working with you on this important issue.
__________
Statement of P. Scott Hassett, Secretary, Wisconsin Department of
Natural Resources
Thank you for the opportunity to present the following comments on
the need to protect the nation's so-called ``isolated'' wetlands and
their benefits for people and wildlife across America.
Wisconsin has a well-founded reputation and tradition of
environmental protection and has strongly supported the Clean Water
Act. We believe that the Clean Water Act and its section 404 program
complements our State program and provides comprehensive protection of
Wisconsin's valuable water resources.
When the Supreme Court restricted protection of isolated waters in
its 2001 decision, Solid Waste Agency of Northern Cook County v. U. S.
Army Corps of Engineers, Wisconsin found itself without the authority
to regulate ``isolated'' wetlands. We were not alone--along with 35
other States we did not have stand-alone wetland regulations that would
automatically fill the gap in the loss of Federal jurisdiction. Rather,
our wetland program piggybacked on Federal jurisdiction and wetland
protection depended on the Corps' regulatory jurisdiction under the
Clean Water Act.
Nearly 30 percent of Wisconsin's wetlands (over 1 million acres)
are ``isolated'' and suddenly lost regulatory protection. Wetlands
determined to be no longer protected by the Federal Government included
some of the State's most sensitive wetlands-prairie potholes, glacial
kettles, coastal swales, bogs, calcareous fens and other basin
wetlands. These are wetlands that the public often don't recognize as
wetlands, yet they provide crucial functions, especially as critical
habitat for Wisconsin plants, fish and wildlife. Of Wisconsin's 370
species of birds, 39 percent live in or use wetlands. Many important
game birds, mammals and fish are associated with wetlands, among them
waterfowl, white-tailed deer, ring-necked pheasants, northern pike and
walleye. Fully one-third of the plants and animals on Wisconsin's State
endangered and threatened list depend on wetlands. The proportion is
even higher (43 percent) for plant and animal species in Wisconsin that
are on the Federal endangered and threatened species list. Wisconsin
wetlands protect water quality by filtering out polluted runoff,
prevent flooding by storing water and provide recreation for boaters,
hunters, canoeists, wildlife watchers and others. In addition,
Wisconsin wetlands are intimately associated with other major community
types in the State--lakes, rivers, prairies, forests--and they play a
critical role in maintaining the overall health and functioning of
these communities. Similar impacts have reported by most States and in
numerous reports and studies since the SWANCC decision.
Legislative response was swift in Wisconsin. Then Governor Scott
McCallum issued a strong statement that the Supreme Court ruling,
``will not result in a retreat from our long-standing commitment to
protect Wisconsin wetlands''. Almost 4 months to the day after the
Supreme Court decision, the Wisconsin legislature unanimously passed
legislation giving the Department of Natural Resources the authority to
protect isolated waters.
While Wisconsin has taken action to protect its own wetlands, we
remain concerned about the fate of isolated wetlands in other States A
large percentage of Wisconsin's wildlife migrates and spends some
portion of their life in other States and countries. If the wetlands
are lost along migration routes on wintering or summering grounds,
Wisconsin will suffer enormously. The recent reintroduction of whooping
cranes to Wisconsin is a prime example--not only do the birds winter
and summer in isolated wetlands, they use isolated exclusively as
stopovers in their migration to and from their wintering grounds.
Wisconsin believes that the nation's isolated wetlands are
extremely critical to the nation's environmental health and must be
protected. While State protection of wetlands is very important,
national action is needed to restore protection to the nation's
``isolated'' waters. The move from Federal to State control over
isolated wetlands has proven to extremely difficult for most States
(only two other States have successfully passed legislation or rules).
Inaction (or reliance on State action) will guarantee irreversible loss
of precious water resources and the benefits they provide to this
Nation.
This concern is shared by other States. Over 60 State agencies from
40 States responded to the recent Advance Notice of Proposed Rulemaking
on the Definition of Waters of the U.S. By an overwhelming majority
States supported maintaining the pre-SWANCC definition of Waters of the
U.S. and opposed rulemaking that would make significant changes. Many
of the States documented significant threats to isolated as well as
other waters in the State that could result from changes in CWA
jurisdiction. States support stronger State participation in protecting
and managing the Nation's waters, but these need to be achieved by
sharing responsibilities and strengthening partnerships, not through an
abdication of Federal responsibility for these important resources.
In summary, Wisconsin strongly believes that national legislation
is needed to return protection to the nation's so-called ``isolated''
wetlands and the benefits they supply to this Nation. We urge you to
support and take quick action on the Clean Water Authority Restoration
Act introduced by Senator Feingold and Representatives Oberstar and
Dingell.
__________
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Statement of Rollin Sparrowe, Wildlife Management Institute
The Wildlife Management Institute (WMI) is pleased to submit
written testimony for the hearing entitled, ``Current regulatory and
legal status of Federal jurisdiction of navigable waters under the
Clean Water Act.'' Founded in 1911, WMI is a non-profit scientific and
educational organization staffed by experienced resource management
professionals who are dedicated to improving the management of wildlife
and wildlife habitats. The Institute has a long history of working to
conserve our Nation's wetlands through oversight and support of State
and Federal wetlands programs, particularly section 404 of the Clean
Water Act (CWA) and Swampbuster provisions in the Federal Agricultural
Policy Legislation (Farm Bill).
For your review are the comments we sent to the Environmental
Protection Agency (EPA) and the U.S. Army Corps of Engineers (COE) in
response to the January 15, 2003, ``Advance Notice of Proposed
Rulemaking on the Clean Water Act Regulatory Definition of 'Waters of
the United States''' (ANPR). In summary, WMI asserts that under CWA:
<bullet> Jurisdictional determinations should focus on the
hydrological or functional relationships among wetlands and other
waters of the U.S.;
<bullet> The Supreme Court's ruling on the Solid Waste Agency of
Northern Cook County v. United States Army Corps of Engineers et al.
case does not restrict EPA or COE from considering the Migratory Bird
Rule when making jurisdictional determinations; and
<bullet> EPA and COE must assess the ``aggregate effect'' of
discharges of dredged or fill material on interstate commerce, opposed
to looking at only the effect of regulating a particular wetland fill.
2. Whether, and, if so, under what circumstances, the factors
listed in 33 CFR 328.3(a)(3)(i)-(iii) or any other factors provide a
basis for determining CWA jurisdiction over isolated, intrastate, non-
navigable waters?
Our understanding of the factors listed in 33 CFR 328.3(a)(3)(i)-
(iii) is that they already do not exclude any other factors that
provide a basis for determining CWA jurisdiction over the waters
subject to this provision. Nevertheless, the three factors listed fail
to capture the breadth of the effects on interstate or foreign commerce
that could result from the destruction or degradation of the waters
subject to paragraph (3). Reliance on these factors alone would lead to
erroneous conclusions concerning the nexus between the discharge of
dredged or fill material into these waters and resulting effects on
interstate commerce. Any determination as to whether a significant
nexus with interstate commerce results from discharge of dredged or
fill material into waters subject to 33 CFR 328.3(a)(3) must be based
on the hydrological and functional relationships of those waters to
other waters of the U.S.
The Clean Water Act (CWA) sets forth an explicit goal to ``restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters''. The concept of ``integrity'' was recognized by
Congress as having a broad, ecological context, i.e. ``a condition in
which the natural structure and function of ecosystems is maintained''
(H.R. Rep. 92-911, 92d Cong., 2d Sess. 76 (1972). CWA jurisdiction,
therefore, should extend to all waters of the United States that
perform functions necessary to achieve the goal of the law, consistent
with the Commerce Clause. Geographic isolation of waters is a poor
surrogate by which to judge the function of these waters in achieving
the goals of the CWA or their relation to interstate and foreign
commerce.
In United States v. Riverside Bayview Homes, Inc., the Supreme
Court ``found that Congress' concern for the protection of water
quality and aquatic ecosystems indicated its intent to regulate
wetlands 'inseparably bound up with the 'waters' of the United States''
(474 U.S. 121, 1985, at 134). Geographically isolated wetlands are as
inseparably bound up with waters of the U.S. as adjacent wetlands.
Geographically isolated wetlands commonly are connected hydrologically
to other wetlands or other waters by means of surface or subsurface
flows (e.g., prairie potholes and Nebraska Sandhills wet meadows) or
infrequent overflows (e.g., West Coast vernal pools). Tiner et al.
(2002) note, ``Many wetlands considered isolated from the landscape or
geographic perspective are connected hydrologically via groundwater to
other wetlands and to rivers and streams . . . Other geographically
isolated wetlands may become hydrologically linked to other wetlands
during extremely wet years as surface water overflows from one
depressional wetland to another.'' Prairie pothole wetlands and
wetlands in karst regions are notable examples. Truly isolated wetlands
that have no surface water or groundwater connection to other waters do
exist (e.g., Southwest playas and Rainwater Basin wetlands in
Nebraska), but such wetlands clearly are the exception (Tiner et al.
2002). Many waters thought to be intrastate waters are likely in fact
to be interstate waters when hydrological linkages are understood and
taken into account.
In United States v. Riverside Bayview Homes, Inc., the Supreme
Court noted ``the evident breadth of congressional concern for
protection of water quality and aquatic ecosystems,'' and ``the
inherent difficulties of defining precise bounds to regulable waters''
(474 U.S. 121, 1985, at 133 and 134). The Supreme Court went on to
conclude that regulation of wetlands in that case was warranted on the
basis of, ``the Corps' ecological judgment about the relationship
between waters and their adjacent wetlands.'' With respect to this
hydrological relationship between waters and adjacent wetlands, the
Supreme Court stated,
``For example, wetlands that are not flooded by adjacent waters may
still tend to drain into those waters. In such circumstances, the Corps
has concluded that wetlands may serve to filter and purify water
draining into adjacent bodies of water, and to slow the flow of surface
runoff into lakes, rivers, and streams thus preventing flooding and
erosion'' (474 U.S. 121, 1985, at 134).
This statement applies equally well to geographically isolated
wetlands. Several studies have concluded that loss of prairie pothole
wetlands, for example, contributes to flooding and flood damages (e.g.,
Brun et al. 1981; Campbell and Johnson 1975; Moore and Larson 1979).
Similarly, an analysis for a Federal interagency task force determined
that watersheds with prairie potholes would be the most effective for
restoring wetlands to reduce flood damages downstream (Interagency
Floodplain Management Review Committee 1994).
The waters subject to 33 CFR 328.3(a)(3) often contribute to
groundwater supplies (including regional aquifers) as water enters more
permeable adjacent soils and moves downward to underlying aquifers and
flows laterally to augment stream flows. According to Tiner et al.
(2002), ``Many wetlands that appear isolated from surface waters
actually are vital components of regional water systems, since they
contribute to local and regional aquifers.'' Hubbard (1991) discusses
the importance of prairie pothole wetlands in groundwater recharge.
Playa lakes are major recharge sites in the Southern High Plains (Wood
and Osterkamp 1984 as reported in Carter 1996). Comments by Ducks
Unlimited on this ANPR provide extensive additional support to
demonstrate the linkages among geographically isolated wetlands,
groundwater and navigable waters within a broad variety of wetland
categories.
Geographically isolated wetlands and the other waters generally
subject to 33 CFR 328.3(a)(3) also play an important role in
maintaining the quality of other waters of the United States.
Substantial sums are spent annually under section 319 and other
provisions of the CWA to construct geographically isolated wetlands to
control nonpoint source pollution and improve the quality of surface
waters. These efforts under the CWA should not be undone by a narrow
interpretation of the definition of ``waters of the United States.''
Destruction or degradation of geographically isolated wetlands
contributes to the erosion of stream banks by increasing the frequency
of high flows. The State of Illinois' 1997 Integrated Management Plan
for the Illinois River Watershed describes how sedimentation, caused in
part by stream bank erosion, is filling up backwater lakes on the
Illinois River and creating problems for navigation. The development of
geographically isolated wetlands also has other water quality impacts.
Studies have shown, for example, that prairie potholes significantly
reduce concentrations of pollutants in agricultural runoff, and
conversely, a study in the prairie pothole region of northwestern Iowa
has shown that pollution concentrations increase as wetland acreage is
decreased by drainage (Hubbard 1988). Phillips et al. (1993) have shown
on the eastern shore of the Chesapeake Bay that concentrations of
nitrates decrease in correlation with the presence of forested
wetlands, many of which are in isolated ``closed depressions.'' Tiner
et al. (2002) discuss how the function of geographically isolated
pocosin wetlands benefits estuaries by giving them more time to
assimilate the fresh water without rapid and drastic fluctuations in
water quality.
Although the Supreme Court found in Solid Waste Agency of Northern
Cook County v. United States Army Corps of Engineers et al. (SWANCC)
that the COE had erred in relying exclusively on the existence of
migratory bird habitat as a basis for regulation, the Court did not
outlaw consideration of the use of wetlands by migratory birds,
endangered species and other wildlife factors to be considered in
making jurisdictional determinations. It merely ruled that such
considerations could not serve as the sole basis for asserting
jurisdiction. Isolated wetlands provide habitat functions that in many
cases are distinct from, and interrelated with, the functions provided
by other waters. Maintaining this functional linkage between
geographically isolated wetlands and other waters is essential to
restoring and maintaining the biological integrity of the Nation's
waters.
The great importance of geographically isolated wetlands and other
waters identified under 33 CFR 328.3(a)(3) as habitat for migratory
birds and endangered and threatened species is documented extremely
well. Waterfowl, other migratory birds and many aquatic animals use
these wetlands for critical stages of their lives even while depending
on other waters at other times. The high density of geographically
isolated wetlands in the prairie pothole region produces half of North
America's waterfowl in an average year; 41 percent of the continent's
breeding dabbling ducks use this area (Bellrose 1979, Smith et al.
1964, Tiner et al. 2002). Geographically isolated wetlands east of the
Rocky Mountains provide a series of feeding and resting areas for
millions of birds that overwinter along the Gulf Coast and migrate to
northern breeding grounds, and the geographically isolated wetlands of
the Rainwater Basin provide habitat for nearly all of the mid-
continental population of greater white-fronted geese (Tiner et al.
2002). The degradation, or destruction of these and other
geographically isolated wetlands adversely affects nearly 3 million
migratory bird hunters, including about 1.6 million duck hunters, and
has a significant effect on interstate and foreign commerce. These
hunters spent about $1.4 billion in 2001 for hunting related goods and
services; 14 percent of this hunting nationwide took place in a State
other than the one in which the participant resided (U.S. Fish and
Wildlife Service 2002). In addition, 14.4 million people participated
in watching waterfowl, with associated expenditures and values also
measured in the billions of dollars (U.S. Fish and Wildlife Service
2002).
As demonstrated above, there are many reasons to protect wetlands
that are directly related to the water quality goals that are clearly
within the intent of Congress as interpreted by the Supreme Court in
SWANCC and Riverside Bayview Homes decisions and within the scope of
Congress' power under the Commerce Clause. The proposed rule should
revise 33 CFR 328.3(a)(3) to make clear that, under applicable Supreme
Court decisions, it is the ``aggregate effect'' of discharges of
dredged or fill material on interstate commerce that must be evaluated,
not simply the effect of regulating a particular wetland fill. As the
Supreme Court acknowledged in the SWANCC decision, most discharges of
dredge or fill material involve the kind of economic activity that
falls squarely within the Commerce Clause.
WMI recommends, therefore, that 33 CFR 328.3(a)(3) be revised to
read as follows:
(3) All other waters such as intrastate lakes, rivers, streams, . .
. or natural ponds, the use, degradation or destruction of which in the
aggregate could affect interstate or foreign commerce including any
such waters:
(i) which are or could be used by interstate or foreign travelers
for recreational or other purposes; or
(ii) from which fish or shellfish are or could be taken and sold in
interstate or foreign commerce: or
(iii) which are or could be used for industrial purposes by
industries in interstate commerce; or
(iv) which through storage of water prevent or could prevent
flooding of waters identified in paragraphs (a)(1)-(2) of this section;
or
(v) which recharge or could recharge interstate aquifers or waters
identified in paragraphs (a)(1)-(2) of this section; or
(vi) which affect or could affect the quality of waters identified
in paragraphs (a)(1)-(2) of this section; or
(vii) which provide or could provide water for livestock or crops
sold in interstate commerce; or
(viii) which, in combination with any waters under subparagraphs
(i)-(vii), provide or could provide habitat for birds protected by
Migratory Bird Treaties or for species listed under the Endangered
Species Act (16 USC 1533 et seq.).
3. Whether the regulations should define ''isolated waters,'' and
if so, what factors should be considered in determining whether a water
is or is not isolated for jurisdictional purposes?
If the regulations define the term ``isolated waters,'' it should
not be on the basis of geographic isolation, because such a definition
has no basis in science. Jurisdictional determinations instead should
be based on the hydrological or physical, chemical or biological
functional relationships among wetlands and other waters. Jurisdiction,
therefore, should extend to all waters of the United States that
perform functions necessary to achieve the goal of the CWA, consistent
with the Commerce Clause as interpreted by the Courts. Decisions
concerning which intrastate waters fall within the jurisdiction of the
CWA's definition of ``waters of the United States'' should be made on
the basis of whether they fall within the revised definition of 33 CFR
328.3(a)(3) recommended above for making jurisdictional determinations
based on the aggregate effect of regulated activities on interstate
commerce or on waters regulated under 33 CFR 328.3(a)(1)-(2). If the
term ``isolated waters'' is defined, it should be defined as those
waters that have no hydrological or physical, chemical or biological
functional relationship with any waters that otherwise would meet the
definition of ``waters of the United States.''
APPENDIX A
WMI believes that the Joint Memorandum under Appendix A of the
ANPR, which provides clarifying guidance regarding the Supreme Court's
SWANCC decision, should be modified as follows:
1. Clarify that the SWANCC decision did not invalidate any of the
provisions of 33 CFR 328.3(a), which define ``waters of the United
States.'' Only the total reliance on the use of waters as habitat by
birds protected by Migratory Bird Treaties in the policy and guidance
document known as the ``Migratory Bird Rule'' was invalidated.
Moreover, the Joint Memorandum should clarify that the SWANCC decision
did not bar jurisdictional determinations from considering the use of
wetlands as habitat by migratory birds; only that such considerations
could not be the sole basis for jurisdictional determinations.
2. The Joint Memorandum should not effectively remove all waters
under 33 CFR 328.3(a)(3) from CWA jurisdiction by requiring field staff
to seek formal project-specific Headquarters approval prior to
asserting jurisdiction over such waters. We view this requirement as a
substantial overreaction to the SWANCC decision and ask that it be
deleted from the guidance.
3. WMI recommends that the Joint Memorandum guidance require
assessment of the hydrological, physical, chemical and biological
functions performed by wetlands within a given watershed in making CWA
jurisdictional determinations. As discussed above, these functions
include: flood control, erosion control, water quality maintenance,
groundwater recharge, and conservation of biological diversity.
Literature Cited
Bellrose, F.C. 1979. Species distribution, habitats, and
characteristics of breeding dabbling ducks in North America. In
T.A. Bookhout, ed. Waterfowl and Wetlands--An Integrated Review.
Proceedings of a symposium, 39th Midwest Fish and Wildlife
Conference (December 5, 1977), Madison, WI. LaCrosse Printing
Company, Inc., LaCrosse, WI.
Brun, L.J., J.L. Richardson, J.W. Enz and J.K. Larsen. 1981. Stream
flow changes in the southern Red River Valley. M.D. Farm. Res.
38:1-14.
Campbell, K.L. and H.P. Johnson. 1975. Hydrologic simulation of
watersheds with artificial drainage. Water Resour. Res. 11:120-126.
Carter, V. 1996. Technical aspects of wetlands: wetland hydrology,
water quality and associated functions. In J.D. Fretwell, J.S.
Williams, P.J. Redman, eds. National Water Summary on Wetland
Resources, USGS Water Supply Paper 2425.
Dahl, T.E. 2000. Status and trends of wetlands in the conterminous
United States 1986 to 1997. U.S. Department of the Interior: Fish
and Wildlife Service, Washington, DC. 82 pp.
Hubbard, D.E. 1988. Glaciated prairie wetland functions and values: A
synthesis of the literature. U.S. Fish and Wildlife Service,
Washington, DC. Biol. Rep. 88 (43).
Hubbard, D.E. 1991. Statement before the U.S. Senate Subcommittee on
Environmental Pollution concerning the status of wetlands science.
U.S. Government Printing Office, Washington, DC. 49 pp.
Interagency Floodplain Management Review Committee. 1994. Sharing the
challenge: Floodplain management into the 21st Century. Pgs. 46-47.
Moore, I.D. and C.L. Larson. 1979. Effects of drainage projects on
surface runoff from small depressional watersheds in the North-
central region. Univ. Minnesota Water Resour. Res. Cent. Bull. 99.
225 pp.
Phillips, P.J., J. M. Denver, R. J. Shedlock and P.A. Hamilton. 1993.
Effect of forested wetlands on nitrate concentrations in
groundwater and surface water on the Delmarva Peninsula. 13
Wetlands 75-83.
Smith, A.G., J.H. Stoudt, and J.B. Gollop. 1964. Prairie potholes and
marshes. Pages 39-50 in J.P. Linduska, ed. Waterfowl Tomorrow. U.S.
Fish and Wildlife Service, Washington, DC.
Tiner, R.W., H. C. Bergquist, G. P. DeAlessio, and M. J. Starr. 2002.
Geographically isolated wetlands: A preliminary sssessment of their
characteristics and status in selected areas of the United States.
U.S. Department of the Interior, Fish and Wildlife Service,
Northeast Region, Hadley, MA.
Wood, W.W. and W.R. Osterkamp. 1984. Recharge to the Ogallala Aquifer
from playa lake basins on the Llano Estacado (An outrageous
proposal?). Pages 337-349 in G.A. Whetstone, ed. Proceedings of the
Ogallala Aquifer Symposium II. Texas Tech University, Lubbock, TX.
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