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:

· Jurisdictional determinations should focus on the hydrological or functional relationships among wetlands and other waters of the U.S.;

· 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

· 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 ground water 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 ground water 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% 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, D.C. 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, D.C. 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 ground water 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, D.C.

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.