<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:88327.wais]
AGENCY IMPLEMENTATION OF THE SWANCC DECISION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENERGY POLICY, NATURAL
RESOURCES AND REGULATORY AFFAIRS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 19, 2002
__________
Serial No. 107-230
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
88-327 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpr.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800
Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
BOB BARR, Georgia DENNIS J. KUCINICH, Ohio
DAN MILLER, Florida ROD R. BLAGOJEVICH, Illinois
DOUG OSE, California DANNY K. DAVIS, Illinois
RON LEWIS, Kentucky JOHN F. TIERNEY, Massachusetts
JO ANN DAVIS, Virginia JIM TURNER, Texas
TODD RUSSELL PLATTS, Pennsylvania THOMAS H. ALLEN, Maine
DAVE WELDON, Florida JANICE D. SCHAKOWSKY, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
ADAM H. PUTNAM, Florida DIANE E. WATSON, California
C.L. ``BUTCH'' OTTER, Idaho STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia ------
JOHN J. DUNCAN, Jr., Tennessee BERNARD SANDERS, Vermont
JOHN SULLIVAN, Oklahoma (Independent)
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Chief Clerk
Phil Schiliro, Minority Staff Director
Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs
DOUG OSE, California, Chairman
C.L. ``BUTCH'' OTTER, Idaho JOHN F. TIERNEY, Massachusetts
CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEVEN C. LaTOURETTE, Ohio PATSY T. MINK, Hawaii
CHRIS CANNON, Utah DENNIS J. KUCINICH, Ohio
JOHN J. DUNCAN, Jr., Tennessee ROD R. BLAGOJEVICH, Illinois
JOHN SULLIVAN, Oklahoma
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Dan Skopec, Staff Director
Jonathan Tolman, Professional Staff Member
Allison Freeman, Clerk
Elizabeth Mundinger, Minority Counsel
C O N T E N T S
----------
Page
Hearing held on September 19, 2002............................... 1
Statement of:
Albrecht, Virginia S., partner, Hunton & Williams; M. Reed
Hopper, principal attorney, Pacific Legal Foundation;
Nancie G. Marzulla, president, Defenders of Property
Rights; Raymond Steven Smethurst, partner, Adkins, Potts &
Smethurst; Gary Guzy, partner, Foley, Hoag, L.L.P.; and
Patrick Parenteau, professor of law, Vermont Law School.... 54
Izzo, Dominic, Deputy Assistant Secretary for Civil Works,
Department of the Army; Robert Fabricant, general counsel,
EPA; and Thomas Sansonetti, Assistant Attorney General,
Environment and Natural Resources, Department of Justice... 6
Letters, statements, etc., submitted for the record by:
Albrecht, Virginia S., partner, Hunton & Williams, prepared
statement of............................................... 56
Guzy, Gary, partner, Foley, Hoag, L.L.P., prepared statement
of......................................................... 124
Hopper, M. Reed, principal attorney, Pacific Legal
Foundation, prepared statement of.......................... 73
Izzo, Dominic, Deputy Assistant Secretary for Civil Works,
Department of the Army, prepared statement of.............. 8
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio, prepared statement of................... 49
Marzulla, Nancie G., president, Defenders of Property Rights,
prepared statement of...................................... 85
Ose, Hon. Doug, a Representative in Congress from the State
of California, prepared statement of....................... 4
Parenteau, Patrick, professor of law, Vermont Law School,
prepared statement of...................................... 134
Sansonetti, Thomas, Assistant Attorney General, Environment
and Natural Resources, Department of Justice:
Cases in which U.S. Briefed SWANCC....................... 34
Prepared statement of.................................... 22
Smethurst, Raymond Steven, partner, Adkins, Potts &
Smethurst, prepared statement of........................... 101
Tierney, Hon. John F. Tierney, a Representative in Congress
from the State of Massachusetts, prepared statement of..... 167
AGENCY IMPLEMENTATION OF THE SWANCC DECISION
----------
THURSDAY, SEPTEMBER 19, 2002
House of Representatives,
Subcommittee on Energy Policy, Natural Resources
and Regulatory Affairs,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room 2154, Rayburn House Office Building, Hon. Doug Ose
(chairman of the subcommittee) presiding.
Present: Representatives Ose, Duncan, Tierney, and
Kucinich.
Staff present: Dan Skopec, staff director; Jonathan Tolman
and Bob Sullivan, professional staff members; Yier Shi, press
secretary; and Allison Freeman, clerk.
Mr. Ose. Welcome to the Subcommittee on Energy Policy,
Natural Resources and Regulatory Affairs.
This is the 10 a.m., September 19 hearing on the Agency
Implementation of the SWANCC decision.
As many of you know, having been before this committee in
the past, our procedures are to swear in our witnesses. We will
do that by panel. I will forewarn everyone I expect a journal
vote here shortly. I want to get the panel convened and
underway accordingly.
We will have opening statements and then we will swear the
panelists and take the testimony. Then other Members as they
come, assuming they get here before we get to the witness
testimony, will have opening statements.
It has been more than a year and a half since the Supreme
Court issued its decision on Federal jurisdiction over
wetlands. In July 2001, I wrote to both the EPA and the U.S.
Corps of Engineers requesting that the agencies issue
clarifying guidance and initiate a rulemaking to ensure that
Federal regulations were consistent with the Supreme Court's
decision. Today's hearing is in response to the fact that the
agencies have yet to take even the most rudimentary steps to
ensure the regulations are being consistently applied.
On January 9, 2001, the Supreme Court ruled that the Corps
and EPA's claim of jurisdiction had exceeded their authority
under the Clean Water Act in the case of Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers, No. 99-
1178. This is known commonly among wetland afficiandos as the
SWANCC decision.
Section 404 of the Clean Water Act authorizes the Secretary
of the Army through the Corps to issue permits for ``the
discharge of dredged or fill material into navigable waters,''
as 33 U.S. Code Subsection 1344(a). In the SWANCC decision, the
court reasoned that ``it is one thing to give a word limited
effect and quite another to give it no effect whatsoever. The
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.'' Whether one agrees or disagrees with the Supreme
Court's decision, the fact remains that it significantly
changed the jurisdiction of the Corps to regulate isolated
waters.
On the last day of the previous administration, the Corps
and 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. According to the memo, ``Jurisdiction over such
`other waters' should be considered on a case-by-case basis in
consultation with agency legal counsel.''
This case-by-case approach has resulted in widely varying
interpretations of the scope of jurisdiction by field offices
of the Corps and EPA. In addition, there appears to be little
consistency in what type of information and criteria are used
for determining jurisdiction. Some regional offices are making
jurisdictional determinations in the office using maps and
aerial photography while others are conducting site visits.
Some Corps regional offices are asserting jurisdiction over
what appear to be isolated intrastate waters on the basis that
they are adjacent to other waters. In many of these cases, the
term adjacent appears to be of elastic proportions. In other
cases, the Corps is declaring ditches which are only
infrequently wet as tributaries, even though the Corps has not
defined the term tributary. This inconsistency--a primary
concern of the Congress--inevitably leads to citizens in
different parts of the country receiving different levels of
treatment on such 404 applications as they may submit.
The current situation is creating confusion and chaos, not
only for the regulated community but for States as well. Even a
casual reading of the SWANCC decision suggests that it is the
right and responsibility of the States to regulate isolated
waters. The lack of action by Federal agencies to clarify the
current situation hinders States in their ability to implement
their own programs to protect wetlands.
In the absence of a clear demarkation of Federal
jurisdiction, States will be unable to even determine the
necessary scope of State wetland programs. While a few States,
notably Ohio and Wisconsin, have passed legislation to address
isolated waters in light of the SWANCC decision, most States
appear reluctant to adopt programs until they know where
Federal jurisdiction begins and where it ends.
In addition to State programs, there are numerous other
Federal programs related to wetlands. Clear rules on Federal
jurisdiction under Section 404 are equally important to ensure
these other Federal programs can properly prioritize their
resources. For example, the Wetlands Reserve Program
reauthorized by the Farm Bill is expected to enroll 250,000
acres per year. By way of comparison, the total acreage of
wetlands permitted under the 404 Program last year was a tenth
of that, about 25,000 acres.
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 will be difficult, if not impossible, for them
to effectively prioritize their programs.
In addition to general oversight over EPA, the Corps, and
the Justice Department, this subcommittee also has jurisdiction
over the regulatory process. While the SWANCC decision did not
specifically vacate any Federal regulations, the broad
rationale of the majority opinion at a minimum requires the
clarification of a number of regulations relating to the 404
Program. The fact that the agencies have yet to initiate a
rulemaking is disturbing. Hopefully in today's hearing, the
agencies will provide some insight into how they will minimize
the chaos their inaction has created before the entire program
degenerates into a sodden mass of litigation with one set of
standards in one part of the country and another set of
standards in another part of the country, and a third, fourth
or fifth set in a third, fourth or fifth part of the country.
[The prepared statement of Hon. Doug Ose follows:]
[GRAPHIC] [TIFF OMITTED] T8327.001
[GRAPHIC] [TIFF OMITTED] T8327.002
Mr. Ose. I do want to welcome our witnesses today. As I
said earlier, we are going to go ahead and swear our witnesses,
as we do at every such hearing of this subcommittee. Before we
do, I want to forewarn you I expect a journal vote here
shortly. In the event of a journal vote, we will recess for as
little time as possible. I will go over and vote, come back,
and we then will continue with the hearing. Gentlemen, if you
would rise.
[Witnesses sworn.]
Mr. Ose. I am told we have canceled the journal vote.
Our first witness today will be the Deputy Assistant
Secretary for Civil Works, Department of the Army, Mr. Dominic
Izzo. Mr. Izzo, we have your testimony, we have read it, so you
don't need to go through it item by item. I would appreciate,
as with the other witnesses also, if you could constrain your
summary to 5 minutes.
STATEMENTS OF DOMINIC IZZO, DEPUTY ASSISTANT SECRETARY FOR
CIVIL WORKS, DEPARTMENT OF THE ARMY; ROBERT FABRICANT, GENERAL
COUNSEL, EPA; AND THOMAS SANSONETTI, ASSISTANT ATTORNEY
GENERAL, ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF
JUSTICE
Mr. Izzo. Good morning, Mr. Chairman.
I am pleased to be here to speak to you about the Supreme
Court ruling called SWANCC. My testimony will focus on Army and
EPA efforts to develop a comprehensive response to SWANCC that
will faithfully implement the Supreme Court's ruling.
Before I begin, I am pleased to inform you that the Army
and the EPA have agreed to engage in rulemaking to define the
Federal role under the Clean Water Act and in particular to
collect broad public input. Because the SWANCC decision focuses
on Federal Clean Water Act jurisdiction, we believe it
important to emphasize that the Federal Government is fully
committed to preventing the unauthorized discharge of
pollutants into all jurisdictional waters, including adjacent
wetlands, as Congress intended.
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 think it appropriate to highlight the
importance of our collective water resource protection
responsibilities under Section 404 because EPA and the Army
share responsibility for this program, which protects all
navigable waters including adjacent wetlands, and SWANCC itself
involves Section 404.
We also note, as you mentioned, that provisions in the 2002
Farm Bill will provide protection for millions of acres of
wetlands and other water resources, even if they are no longer
under Clean Water Act jurisdiction.
Wetland losses have dropped substantially over the last 10
years. The Section 404 Program has played a pivotal role in
protecting thousands of acres of environmentally sensitive
wetlands through highly effective procedures that are designed
to avoid, minimize, and mitigate for unavoidable losses. We
will continue to fulfill this critical public purpose, and we
are absolutely dedicated to the goal of no net loss of
wetlands.
We also wish to emphasize that although SWANCC and our
testimonies today focus on Federal jurisdiction, other Federal
or State laws and programs may still protect the water and
related ecosystems even if that water is no longer
jurisdictional under the Clean Water Act following SWANCC.
SWANCC did not affect the Federal Government's commitment
to wetlands protection through programs like the Food Security
Act Swampbuster requirements and Federal agricultural program
benefits. Nor did it affect restoration through such Federal
programs as the Wetlands Reserve Program and grantmaking
programs such as Partners in Wildlife and the Coastal Wetlands
Restoration Program.
The SWANCC decision also highlights the role of States in
protecting waters not addressed by Federal law. Prior to
SWANCC, 15 States had programs that addressed isolated
wetlands. Since SWANCC, additional States have considered or
adopted legislation to protect isolated waters. Federal
agencies have a number of initiatives to assist States in these
efforts to protect wetlands. For example, EPA's Wetland Program
Development Grants are available to assist States, tribes and
local governments in building their wetland programs. The
Department of Justice and other Federal agencies are
cosponsoring a National Wetlands Conference with the National
Governors Association and other groups. This conference is
designed to promote close collaboration between Federal
agencies and States in developing, implementing, and enforcing
wetlands protection programs.
EPA and the Army share responsibility for the Section 404
Program, which protects wetlands and other aquatic resources.
Under the Clean Water Act, any person planning to discharge
dredged or fill material into navigable waters must first
obtain authorization from the Corps 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 program, including reviewing permit
applications and deciding whether to issue or deny permits, EPA
has a number of important Section 404 responsibilities. In
consultation with the Corps, the EPA develops the environmental
criteria that the Corps applies when deciding to issue a
permit. Under these guidelines, a discharge is not allowed if
there are practicable alternatives with fewer adverse effects
on the aquatic systems 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
to fulfill our important statutory duties. For example, Army
and EPA have concluded a number of written agreements, which
are intended to further these cooperative efforts in a manner
that promotes efficiency, consistency, and environmental
protection. EPA and the Corps have organized a staff-level
Interagency Work Group that includes EPA, Corps, and the
Department of Justice.
Mr. Ose. Mr. Izzo, if I may, given the constraints of time,
your 5 minutes has expired. The comments you have are in your
testimony.
Mr. Izzo. They are indeed.
[The prepared statement of Mr. Izzo follows:]
[GRAPHIC] [TIFF OMITTED] T8327.003
[GRAPHIC] [TIFF OMITTED] T8327.004
[GRAPHIC] [TIFF OMITTED] T8327.005
[GRAPHIC] [TIFF OMITTED] T8327.006
[GRAPHIC] [TIFF OMITTED] T8327.007
[GRAPHIC] [TIFF OMITTED] T8327.008
[GRAPHIC] [TIFF OMITTED] T8327.009
[GRAPHIC] [TIFF OMITTED] T8327.010
[GRAPHIC] [TIFF OMITTED] T8327.011
[GRAPHIC] [TIFF OMITTED] T8327.012
Mr. Ose. Let us go to Mr. Fabricant, if we may. I
appreciate your cooperation, Mr. Izzo, on that.
Mr. Fabricant for 5 minutes.
Mr. Fabricant. Good morning.
I am Bob Fabricant, General Counsel of the Environmental
Protection Agency. I welcome the opportunity to present
testimony today on EPA's implementation of the SWANCC decision.
SWANCC involved a challenge to the Clean Water Act
jurisdiction over isolated interstate, non-navigable ponds in
Illinois that had been gravel pit mines but which over time
attracted migratory birds. In SWANCC, the Supreme Court held
that the Army Corps exceeded its authority in asserting
jurisdiction over the waters based on their use as habitat for
migratory birds. The Court concluded that neither the statute
nor its legislative history supported the Corps assertion of
jurisdiction over the waters involved in SWANCC.
Because SWANCC limited use of the migratory bird rule as a
basis of jurisdiction over certain isolated waters, it focused
greater attention on the jurisdiction over tributaries and over
adjacent wetlands.
The case law and the precise scope of Federal jurisdiction
since SWANCC is still developing. The Corps, EPA, and DOJ have
been monitoring these newly decided cases and have been working
closely together in an effort to develop guidance concerning
Clean Water Act jurisdiction following SWANCC. EPA, Corps and
DOJ have organized a staff-level Interagency Work Group that
meets biweekly to exchange information.
We recognize that field staff and the public could benefit
from additional guidance on how to apply the legal principles
in individual cases. Accordingly, our efforts have also focused
on determining where rulemaking might be advisable. A
rulemaking would allow us to garner public input on important
jurisdictional issues arising from SWANCC. SWANCC squarely
eliminates jurisdiction over interstate, non-navigable,
isolated waters where the sole basis for asserting jurisdiction
is the use of the waters as habitat by migratory birds. In
light of SWANCC, questions have also been raised about whether
there remains any basis for jurisdiction under other rationales
of our (a)(3) or other waters regulations.
The Court in SWANCC determined that the term navigable had
at least the significance of showing 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 made so.
Accordingly, traditional navigable waters remain jurisdictional
following SWANCC.
Clean Water Act jurisdiction also extends to wetlands that
are adjacent to navigable waters pursuant to the Supreme Court
holding in Riverside Bayview Homes. While wetlands adjacent to
traditional navigable waters remained jurisdictional after
SWANCC, the Supreme Court has expressly declined to elaborate
on the precise meaning of the term adjacent. Army Corps and EPA
regulations currently define adjacent as bordering, contiguous,
or neighboring. The Army and EPA are examining the issue of
whether this definition should be the subject of future
rulemaking.
For many years, EPA and the Corps have interpreted their
regulations to assert jurisdiction over non-navigable
tributaries of traditional navigable waters. Following SWANCC,
Federal courts have raised questions concerning the extent of
Clean Water Act jurisdiction over non-navigable tributaries.
The Army and EPA are examining whether a rulemaking should be
pursued to address these questions.
The case law in the Clean Water Act jurisdiction is still
developing. The agencies will continue to monitor the emerging
case law and work closely to issue appropriate guidance and/or
proposed revised regulations. We look forward to receiving
stakeholder input on these important issues.
Thank you for your time today.
Mr. Ose. Thank you, Mr. Fabricant. I appreciate your
brevity.
Mr. Sansonetti, we are going to recess for a few minutes so
I can go over and vote. In fact, we are having a vote on the
journal. It was canceled and then put back on, so we are going
to recess for 10 minutes and I will be back.
[Recess.]
Mr. Ose. Mr. Sansonetti for 5 minutes.
Mr. Sansonetti. 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, I will describe our work
in connection with the Clean Water Act, the interpretation of
which was at issue in SWANCC, and the efforts that we have made
to ensure the positions 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, I provided the subcommittee with a
prospective on the breadth of our work. My division has a
docket of approximately 12,000 pending matters, with cases in
every judicial district in the Nation. The majority of our
cases are defensive. Although some of these defensive cases
involve the Clean Water Act, many more do not. In fact,
litigation cases arise from over 70 environmental and natural
resources laws. Even if one were to focus only on an
enforcement docket, wetlands cases are only a small subset, 29
to be precise.
With that background, I will now discuss in more detail our
role with regard to the implementation of the Clean Water Act.
The Department of Justice's primary role with regard to the
Clean Water Act is to represent EPA, the Corps, and other
Federal agencies that might be involved in CWA litigation. That
litigation can be either defensive or affirmative.
Our defensive litigation can take 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. My written testimony describes Wetlands Action Network,
a case in which we defended the Corps' decision to grant a
permit to a developer in Southern California.
Affected parties may also seek judicial review of
regulations or a guidance document. 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 Clean Water Act.
We also bring affirmative litigation under the Clean Water
Act. CWA civil enforcement actions generally begin with a
referral or an investigation from EPA or the Corps regarding
alleged violations. We then conduct or own internal,
independent inquiry to determine whether we have sufficient
evidence to bring the case and where there is appropriate
judicial action.
If we determine that judicial enforcement is warranted, we
also explore possibilities for achieving settlement of the
alleged violations as appropriate. As I noted in my written
testimony, the vast majority of environmental violations are
addressed and resolved administratively by State and local
governments. In the wetlands area, most Federal enforcement of
the Clean Water Act is carried out by the EPA and the Corps at
the administrative level and does not involve us. Thus, our
work is only a small, albeit an important part of CWA
implementation.
Just as with any other Supreme Court case, we try to ensure
that the legal positions on behalf of the Federal Government
are consistent with SWANCC. Accordingly, after SWANCC was
decided in January 2001, about a year before I came on this
particular job, we undertook a comprehensive review of our
Clean Water Act docket. We scrutinized any case that involved
isolated waters, the migratory bird rule, or analogous theories
to determine whether SWANCC had undermined the geographic
jurisdiction in the case and took action as appropriate.
In my written testimony, I gave two examples of cases in
which we decided not to pursue enforcement claims in light of
SWANCC, that is the Cargill Salt case and Borden Ranch. In
addition to reviewing our existing cases for consistency with
SWANCC, we established a process for ensuring the positions we
take in litigation going forward are internally consistent and
appropriately coordinated with the Federal Government. Thus, in
addition to the review of all our perspective enforcement cases
I described earlier, we also focused on whether there is a
factually and legally sound basis consistent with SWANCC for
proceeding in our Clean Water Act cases. We applied a similar
process in our defense CWA-related litigation.
The Solicitor General, Ted Olson, also has an important
role in ensuring nationwide consistency in the U.S. litigation
positions. Anytime we seek to appeal from an adverse district
court decision or seek to file an amicus brief in the circuit
courts of appeal, it is the Solicitor General that must
authorize the filing, regardless of whether the U.S. Attorneys
Office or my division is handling the case. Each of our
appellate filings to date has been authorized by the Solicitor
General.
Our careful examination of our cases has paid off with some
success in the courts. There are 24 cases in which we have
filed SWANCC-related briefs in the Federal courts; 17 of those
cases have resulted in a decision; 12 of those decisions agreed
with the Government's position, 5 did not.
Given that we still have pending litigation in this area, I
would be pleased to make available to any member of the
subcommittee our briefs as they provide the best statement of
our position in any particular matter.
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. In December, we will host a national conference
and training course designed in cooperation with several State
associations, EPA, and the Corps to facilitate Federal-State
partnerships in this important area. Consequently, I would like
to assure the subcommittee that we are working hard to ensure
the positions we take in litigation are consistent with our
client agencies. I would be happy to answer any questions you
may have about my testimony.
[The prepared statement of Mr. Sansonetti follows:]
[GRAPHIC] [TIFF OMITTED] T8327.013
[GRAPHIC] [TIFF OMITTED] T8327.014
[GRAPHIC] [TIFF OMITTED] T8327.015
[GRAPHIC] [TIFF OMITTED] T8327.016
[GRAPHIC] [TIFF OMITTED] T8327.017
[GRAPHIC] [TIFF OMITTED] T8327.018
[GRAPHIC] [TIFF OMITTED] T8327.019
[GRAPHIC] [TIFF OMITTED] T8327.020
[GRAPHIC] [TIFF OMITTED] T8327.021
[GRAPHIC] [TIFF OMITTED] T8327.022
Mr. Ose. Thank you, Mr. Sansonetti.
Mr. Fabricant, on page ten of your testimony, you state,
``The case law and Clean Water Act jurisdiction is still
developing. The agencies will continue monitoring the emerging
case law. Resolutions of issues on appeal and the issuance of
guidance should help define and reinforce the appropriate scope
of Clean Water Act jurisdiction.'' When I read this it suggests
to me that the Corps and EPA are waiting for a number of cases
in the queue to be decided before they can define jurisdiction
under Section 404. Do I have an accurate understanding?
Mr. Fabricant. No, actually the Army Corps and EPA retain
the authority to move forward with guidance or rulemaking
before those court cases are decided. We are not in a holding
pattern waiting for those cases to be decided.
Mr. Ose. So you are prepared to issue rulemaking?
Mr. Fabricant. We are actively working on rulemaking and
the scope of the rulemaking so yes, we are prepared to move
forward with rulemaking prior to those decisions being decided.
Mr. Ose. I want to come back to that.
Mr. Sansonetti, in your testimony you state, ``The
Department's primary role with regard to the Clean Water Act is
to represent the Corps and EPA in litigation.'' I can only
interpret that to mean that the Justice Department's is to
defend the policies of the Corps and EPA?
Mr. Sansonetti. Primarily, that is true, but of course they
come to us in given circumstances and say in a particular
factual situation, is this something that has already been
decided by the courts. Since matters of adjacency, description
of wetlands, what is a tributary are now being thought over in
the courts, sometimes you have to look at these things on a
case-by-case--not sometimes, all the time you must look at
these on a case-by-case basis.
If there is a court holding that is out there such as
SWANCC, then we can say if your particular factual situation
matches that, then there is no jurisdiction. However, there are
such a variety of factual situations out there right now that
often the EPA and the Corps have to make a cut on whether or
not they think they have jurisdiction. In some of those cases,
people disagree with the result, and that has led to the
litigations going on across the United States right now.
Mr. Ose. The net result is that since the Supreme Court's
decision in SWANCC, we are waiting on some sort of guidance or
rulemaking from the EPA and Corps, and then there are cases in
the queue in front of different jurisdictions and courts of
law. How do you know what policy to defend?
Mr. Sansonetti. It can be difficult, that is why there are
so many cases in the circuit courts right now. It would be
beneficial, and I think both of the other panelists have stated
they are going to take on rulemaking, the goal of which is
going to be to provide a brighter line for American citizens to
know exactly where jurisdiction will and will not lie. However,
we also have to tell you what we are dealing with here, the
statute passed by Congress and the regulations promulgated by
these two agencies and their meanings, is something obviously
the Judicial Branch is going to have a big say in.
There are approximately seven or eight cases that are in
the circuit courts right now that are all percolating up from
the district courts; some decided in favor of the Government,
some decided against the government.
Mr. Ose. Has the Department made any determination in
response to questions from the Corps or EPA as to what the
meaning of adjacency or tributary or any of the other nebulous
terms are?
Mr. Sansonetti. We have worked with both agencies, and we
have had to address the arguments presented by opposing counsel
in briefs. Again, it is so detailed that I want to make sure I
proffer those briefs to you for a detailed answer.
Mr. Ose. We will accept the briefs and put them in the
record.
Mr. Sansonetti. Sure. I would be glad to do that, sir, but
those are topics that will need to be dealt with in the
rulemaking.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T8327.023
[GRAPHIC] [TIFF OMITTED] T8327.024
Mr. Ose. Are the interpretations of these nebulous terms
the same regardless of district?
Mr. Sansonetti. No. Different judges have ruled on
different factual bases in different manners. You are correct.
Mr. Ose. Let me rephrase that. Do interpretations of these
nebulous terms vary from EPA over Corps district office to
Corps or EPA district office? Is there one standard or are
there many standards?
Mr. Sansonetti. It is not so much the standard, it is the
application of those standards to a set of facts that really
provides the problem.
Mr. Ose. Does the application vary from case to case?
Mr. Sansonetti. It can, yes.
Mr. Ose. How does someone who would expect to be treated
equally before the law have any certainty as to what the actual
regulation says then?
Mr. Sansonetti. They would have difficulty in so doing.
Mr. Ose. In the Borden Ranch case you cited in your written
and oral testimony, you did actually examine the vernal pool
issue there and in retrospect decided not to pursue that. You
are, if I understand correctly, in front of the Supreme Court
in early December on a horticultural practice related to
Borden?
Mr. Sansonetti. That is correct. The Borden Ranch case, the
Department is presently in the process of drafting the Supreme
Court brief, but the SWANCC issue is no longer involved.
Mr. Ose. Someone made a decision on the Borden Ranch case
that the SWANCC decision no longer applied?
Mr. Sansonetti. That is correct.
Mr. Ose. That was on the basis of isolated, intrastate
water?
Mr. Sansonetti. I believe that was the case, but it was
determined after the division's review of the facts in the case
matched against the SWANCC holding that particular count in the
complaint should be dismissed, and it was. So the Supreme Court
when it deals with this matter later this year will not have a
SWANCC issue before it.
Mr. Ose. I am going to recognize the gentleman from
Massachusetts.
Mr. Tierney. Thank you.
Mr. Izzo, you testified the agencies will be developing
rulemaking and your words were, ``to faithfully implement the
Supreme Court's ruling.'' Are you saying the rulemaking will
not contain any jurisdictional limits that are not provided in
SWANCC or other Supreme Court decisions?
Mr. Izzo. No, sir, I am saying we haven't exactly settled
on what the rulemaking will be and we are trying to work out
the specific cases that will be included in the rulemaking.
Mr. Tierney. What rules, other than the migratory bird
rule, have to be changed in order to be consistent with the
SWANCC decision?
Mr. Izzo. We are still working on that because there are
several of the other elements that have been called into
question and could conceivably be included in the rulemaking,
but we haven't reached a determination as to whether they
should be in the rulemaking or not.
Mr. Tierney. You are saying SWANCC has called other
elements into confusion?
Mr. Izzo. Yes, sir, SWANCC and the different opinions of
the district courts.
Mr. Tierney. Let me stick to SWANCC because that is the
controlling case, right?
Mr. Izzo. Yes, but the issue for us with SWANCC is that
previously we had the migratory bird rule, which provided an
umbrella over all the other jurisdictional issues.
Mr. Tierney. And, SWANCC gave you reason to want to deal
with that in the new rulemaking?
Mr. Izzo. That is correct.
Mr. Tierney. That is all that SWANCC should reflect in new
rules?
Mr. Izzo. I believe that is correct.
Mr. Tierney. That position would be consistent with the
Department of Justice position, am I right, Mr. Sansonetti?
Mr. Sansonetti. The position of the Department of Justice
is best stated in our briefs.
Mr. Tierney. You are a great lawyer, I am sure, and if you
have to argue in front of a judge, you can put what is in your
briefs into some sort of verbal component, and I think we are
going to ask you to do that now.
Mr. Sansonetti. The law governing CWA jurisdiction is
governed by the statute and the regulations. So we look to
those in determining whether or not there is jurisdiction. The
regulatory jurisdiction and the definition of waters in the
United States as currently on the books authorizes these
agencies to regulate four primary categories of water:
traditional navigable waters, interstate waters, tributaries,
adjacent wetlands, and four is isolated waters. It is only the
last one that was touched upon in SWANCC, isolated waters. So
we have pending enforcement cases, those I mentioned earlier,
the ones on appeal, and each one deals with the first three
categories that was not touched upon by SWANCC. So that gray
area, if you will, is still out there in the judiciary and we
will have to wait to see what happens.
Mr. Tierney. With respect to that one category that was
dealt with in SWANCC, the Court based its decision on the
migratory bird rule, correct?
Mr. Sansonetti. It did.
Mr. Tierney. So when Mr. Izzo says that the only rule they
would need to change would be that migratory bird rule, that
would be consistent with the Department of Justice's position?
Mr. Sansonetti. In that case, that is correct, but as I
have stated before, there have been a number of cases filed by
opponents to their decisions that would disagree with your
statement and they have been winning. They have been winning at
the lower court level, so we will have to see what happens when
the matters are determined at the circuit court level. As I
stated, in my testimony, 17 decisions--12 in favor of
Government.
Mr. Tierney. So a distinct minority have gone the other
way? The batting average is good.
Mr. Sansonetti. The batting average so far is good. I guess
it depends on which one gets to the Supreme Court first, and
that one will have impact on all the remainder.
Mr. Tierney. Mr. Izzo and Mr. Fabricant, based on all that,
I would say any decision your agencies might make with respect
to rulemaking that do anything more than deal with the
migratory bird rule would in essence be a policy decision,
right?
Mr. Fabricant. The Office of General Counsel would need to
weigh in on litigation matters and litigation risks associated
with revisions to the rulemaking. So it wouldn't be a pure
policy matter. There would be litigation risks associated with
some of the questions that have been raised by the Federal
courts. So it would be a mix of the two.
Mr. Tierney. You obviously assess the risk, win, loss, and
in which positions, but with respect to the actual issue that
was in that Supreme Court decision, that deals with the
migratory bird rule and that is what you need to address in the
rulemaking. Anything beyond that is not occasioned by the
SWANCC decision; you are doing that as a matter of policy.
Mr. Fabricant. Clearly, the SWANCC decision is controlling
law across the United States but other Federal courts raise
legal issues that we need to factor into the rulemaking
process. So it is a blend. In a rulemaking, the Office of
General Counsel participates in a legal sufficiency review of
rulemakings. It requires a blend of policy and legal analysis.
Mr. Tierney. It is amazing to me that in your rulemaking
you would be looking at judicial decisions where there are
issues that have been raised but no determination finally made.
I understand how you look at a Supreme Court case. That is
determinative and you are going to factor that into your rule,
but it strikes me as being a bit unusual to say the least that
you would choose to go beyond the Supreme Court decisions into
lower court decisions where there is a distinct diversity of
opinion. To me that is policymaking, a public policy choice
this administration is making.
Mr. Fabricant. Again, the rulemaking process that we agreed
to is to put out a proposal. The exact scope of it hasn't been
determined yet. We are still talking within the agencies and
there is no predetermination of where that rulemaking might be
finalized. Again, we are midstream in some of these cases. They
may inform the final rule that eventually comes out or they may
still be pending. Again, there is no decision that has been
made today.
Mr. Ose. Mr. Duncan.
Mr. Duncan. Thank you for calling this hearing. I am sorry
I was in other meetings and did not get to hear the testimony.
In another committee I chair, the Water Resources and
Environment Subcommittee, we have had major hearings on these
issues. What we see in almost every industry is that the
Federal Government hands down so many rules and regulations and
so much red tape, it hurts the little guy in every industry,
hurts the small coal miner, the small logger, or the small
farmer. In the two hearings we held several months ago, we had
small farmers there crying, breaking into tears over what
happened to them because of enforcement of wetlands regulations
that were costing them so much money. You see these extremely
big corporations that are happy about all this because it
drives out all their competition first from little guys and
even the medium-sized businesses.
This is not related to the wetlands but in 1978, we had 157
small coal companies in eastern Tennessee. Now we have none.
You don't just lose miners from that, you lose sales people,
secretaries, lawyers, accountants and all sorts of jobs because
of that. The same thing has happened in several other
industries.
I understand from staff that the regulations in this area
got so ridiculous that the Corps and EPA at one point had
adopted what was called the Glancing Goose Test, allowing
jurisdiction to be asserted over private property if a
migratory bird so much as looked at it.
What I am wondering about now in this case from Cook County
we have been talking about, the Supreme Court said that
regulating isolated wetlands would beyond Congress' authority
under the Commerce Clause because it would ``result in a
significant impingement of the States' traditional and primary
authority over land and water use.'' Then you had Justice
Stevens who said, ``In its decision today, the Court draws a
new jurisdictional line, one that invalidates the 1986
migratory bird regulation as well as the Corps assertion of
jurisdiction over all waters except for actually navigable
waters, their tributaries and wetlands adjacent to each.''
Really the Court said they found the original intent of
Congress was not to give the EPA, the Army Corps, or anyone
else jurisdiction over an extremely isolated wetland or some
small area that would become a wetland possibly a few days each
year, but this was meant to apply to actual navigable waters
and their tributaries.
Is that what you all are working on now, you are trying to
come up with regulations consistent with that decision or do
you find the lower levels of the Army Corps and EPA and so
forth are resisting that decision? Mr. Izzo.
Mr. Izzo. I don't think anybody in the lower levels of the
Army Corps of Engineers is resisting that decision. It is just
that this is a very complex issue. While SWANCC makes it clear
that intrastate, isolated, non-navigable waters cannot be
regulated solely based on use by migratory birds, there is a
whole other category of things related to that which other
court cases have called into question. We are trying to
structure a rulemaking so that we can arrive at good rules to
address that with public input, and that takes time. We have
not completely defined the parameters of that rulemaking yet. I
wouldn't say there is resistance at the lower levels of the
Corps of Engineers, not by any means.
Mr. Duncan. Will you try to keep in mind what I have seen
in this and so many other areas that when you come down with
heavy-handed enforcement of all these rules and regulations, it
is driving the little guys out of business, out of farming. It
is hurting the small farms. Everybody in Congress on both sides
says they are for the family farm, but everything the Federal
Government has been doing is driving these people out. It helps
the big giants. We come in with these supplemental
appropriations bills and give them so more money trying to keep
them in, but they are being forced out because they can't farm
their property.
That is all I have to say, Mr. Chairman.
Mr. Ose. Thank you, Mr. Duncan.
Mr. Fabricant, I am interested in the process or the status
of the process, Mr. Izzo, this may apply to you too, of the
effort underway to actually initiate the rulemaking. In a very
real sense, my concern is whether or not it's proceeding. I
would like to know chapter and verse of the meetings that have
taken place between EPA, the Corps, and the Council on
Environmental Quality, what have you, to try and get this thing
completed and out to the public for due process?
Mr. Fabricant. I can generally describe the process that
has come up, and if you need more specifics, we can provide
them. I am not sure I have all the detailed meetings for you
today.
Several months after the SWANCC decision, we began our
Interagency Work Group including the Army Corps of Engineers,
EPA, the Department of Justice and that process in its early
stages was looking at the SWANCC decision and developments
regarding that decision and played several different roles,
including coordinating cases as they came through in light of
SWANCC.
Since then, we have been looking at whether additional
national guidance could be helpful to the process and have
continued that working group on virtually a weekly to bi-weekly
basis of meetings that serve dual purposes, looking at and
coordinating particular issues as they came up and trying to
continue to move the ball regarding guidance and/or rulemaking.
Mr. Ose. Do you have dates, times, and who was in the
meeting?
Mr. Fabricant. I don't have them here today but I suspect
there are some records of that we could certainly try to
reconstruct.
Mr. Ose. The reason I ask is I don't think it is any secret
that I am dissatisfied that after 18 months and the Supreme
Court's decision, we still don't have anything that is even
remotely close to being put out for proposed rulemaking. I am
trying to find out who it is that is in charge of this so that
instead of haranguing you I can go harangue them, if you will.
If you could come up with that from an EPA standpoint, I would
appreciate that.
Mr. Izzo, I would like to ask you the same question in
terms of who at the Corps is participating in these
conversations, when are they taking place, who is it that is
driving the train so to speak? Is that available?
Mr. Izzo. Yes, sir, it is available certainly from peoples'
calendars. EPA and Army have been engaged in, I would say,
intense dialog on this for at least most of the summer. Prior
to that, the discussions were occurring at the staff level for
quite a bit of time, and I think I can safely say that they
weren't progressing fast enough for our desires and that is why
it was elevated to our level. We have been giving it intense
attention to try and get to the point where we can do the
rulemaking.
Mr. Ose. I appreciate that, but I want to go back to my
question. I want to know who is involved and when the meetings
have taken place, to see if there is a regular pattern of
getting together or there isn't. Is the Army Corps of Engineers
prepared to submit that to the committee for its edification?
Mr. Izzo. Yes, sir, we would be happy to.
Mr. Ose. Mr. Sansonetti, in the SWANCC decision, the
Supreme Court stated, ``We said in Riverside Bayview Homes that
the word `navigable' in the statute was of limited effect and
went on to hold that Subsection 404(a) extended to non-
navigable wetlands adjacent to open waters. But it is one thing
to give a word limited effect and quite another to give it no
effect whatsoever. The term `navigable' has at least the import
of showing us what Congress has 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.'' That is the Supreme Court's actual
writing in their decision.
In light of this decision, does the Justice Department
believe there are alternative Commerce Clause connections other
than navigation that give the Corps jurisdiction under Section
404?
Mr. Izzo. Again, the Department of Justice has addressed
those constitutional arguments in a number of these briefs
filed before U.S. District Courts and the Circuit Courts of
Appeal. In particular, I am going to supply you with the brief
in the United States v. Deaton case because that one has been
to the Fourth Circuit and back. The District Court has recently
held for the United States. The Deaton folks have obviously
taken that back to the Fourth Circuit. Those are the issues
involved in it, and I understand you will hear from the Deaton
counsel later today. So the answer is that particular
constitutional argument is in full litigation right now. The
briefs speak for themselves. We will have to see what the
Fourth Circuit says and the other circuits as well.
Mr. Ose. In summary, did the Justice Department's brief
cite alternative Commerce Clause connections?
Mr. Izzo. They basically defend the Army Corps' decision in
that particular wetland situation and state that the power
through the regulations given to the Army Corps were
jurisdictional in that case, yes.
Mr. Ose. My time has expired. I have additional questions.
We will go to the gentleman from Massachusetts.
Mr. Tierney. I have just a couple more questions that will
hopefully clarify some things.
In January 2001, the EPA General Counsel at that time, Gary
Guzy, and the Corps General Counsel, Robert Anderson, issued a
memorandum interpreting the Court's decision in SWANCC. Would
both of you gentleman address whether or not that memorandum
currently reflects the position of the EPA and the Corps?
Mr. Fabricant. The memorandum is currently in effect, yes.
Mr. Tierney. So it has not been revoked?
Mr. Fabricant. No, it has not.
Mr. Tierney. In the course of your rulemaking, are you
going to in any way make an estimate of the numbers of acres of
wetlands or miles of streams that might be affected depending
on the way you interpret the rule, either narrowly and the
migratory bird rule under SWANCC or more broadly if you go that
route?
Mr. Fabricant. I suspect in the course of the rulemaking
that we would develop information and solicit comment from the
regulatory community and public regarding those very types of
issues.
Mr. Tierney. But that has not been done yet?
Mr. Fabricant. To the best of my knowledge. I haven't seen
that type of analysis sitting as the General Counsel.
Mr. Tierney. Mr. Izzo, you have seen nothing to that effect
either?
Mr. Izzo. No, sir, I have not. SWANCC-related permits
constitute a very small part of our workload so I would expect
the total number of acres that would be affected one way or the
other would be relatively small.
Mr. Tierney. Thank you. I have no other questions.
Mr. Ose. The gentleman from Tennessee?
Mr. Duncan. No.
Mr. Ose. Mr. Sansonetti, I want to go back to the line of
questioning I was pursuing a moment ago. Corps regulations
colloquially referred to as (a)(3) specify that water whose use
cold affect interstate commerce is jurisdictional to the Corps.
Are those regulations in (a)(3) consistent with SWANCC?
Mr. Sansonetti. You are referring to Part 328, Definition
of Waters in the United States, 328.3(a)(3) is the part that
talks about all other waters such as interstate lakes, rivers,
streams, mudflats, sandflats, wetland, etc. Obviously that
particular section is one of those that is involved in the
series of litigation out there.
We feel that the SWANCC decision referred to the
application of a regulation; it did not strike out (a)(3),
which is still in existence today. There is a Fourth Circuit
case that has dealt with (a)(3) known as Wilson where they
invalidated (a)(3) for the Fourth Circuit purposes but that
particular decision has not made its way to the Supreme Court.
Mr. Ose. Is (a)(3) consistent or inconsistent with the
SWANCC decision in the Department's opinion?
Mr. Sansonetti. It is consistent as far as the fact that
the regulation is in place and can be applied by the Corps.
Where the fight comes is whether or not a particular fact
situation falls within (a)(3), is a particular wetland
adjacent, is a particular water body described correctly as a
playa lake, is it a wet meadow? That is what a lot of the
fights are about.
Mr. Ose. Section 328.1(a)(3)(i) describes waters which are
or could be used by interstate or foreign travelers for
recreational or other purposes. How does that relate to
navigable waters?
Mr. Sansonetti. I suspect as far as (3)(i) is concerned, it
says ``which are or could be used by interstate or foreign
travelers for recreational or other purposes.'' I suppose if
you have a boat, you can cross a lake and people can fish off
it and take the fish to shore, that would be jurisdictional.
Mr. Ose. No. 2, ``for which fish or shellfish are or could
be taken or sold in interstate or foreign commerce.''
Mr. Sansonetti. Same answer. If you have folks taking out
the shellfish and going to shore, that would constitute
interstate or foreign commerce up on the borders of our
country.
Mr. Ose. No. 3 is ``which are used or could be used for
industrial purposes by industries in interstate commerce.''
Mr. Sansonetti. That goes to the commerce nexus which is at
debate in many of the cases.
Mr. Ose. So how does recreation, fishing, and industrial
purpose relate to navigable waters, navigation in particular?
Mr. Sansonetti. As I say, Congress wrote the law and so
everyone is having to interpret exactly what you meant in that
regard. The Courts have, in some instances, stated that if
commerce is linked to (a)(3) (i), (ii) and (iii), then there is
jurisdiction.
Mr. Ose. The Supreme Court's contention that giving the
word limited effect, navigation in normal language means a
putting along kind of thing.
Mr. Sansonetti. It certainly has to have meaning but even
in the SWANCC decision, in the discussion about navigability, a
non-navigable tributary that leads directly to a navigable
tributary was included as being jurisdictional. So the
challenge to the rulemakers is going to be to determine where
to draw the bright line in the gray area because you are
correct, the word navigable does and should have meaning.
Congress put it there, so to the degree that even the
rulemaking that eventually comes out is going to be challenged,
there is no doubt about that, whatever the eventual rulemaking
is that comes out, we are still going to end up in court.
To the degree that the legislative branch is unhappy with
that result, either the rulemaking itself or the executive
branch, that is not what we meant Congress says, or you are
unhappy with what the folks in the black robes say, this whole
matter could potentially or should be right back here at
Congress to the degree that we have done the wrong thing or
made the wrong decision or you don't like what the courts say,
then this needs to be amended to make it more clear, the law
does.
Mr. Ose. If I interpret your remarks correctly, with all
due respect, the comments of the Supreme Court as to the nexus
between navigability are just being ignored. I don't see how
fish or shellfish relate to navigability or how recreation
relates to navigability. It is a very clear statement, it seems
to me, in the SWANCC decision. I am not an attorney, but I live
in the real world.
Mr. Sansonetti. The regulations as developed by the Army
Corps may or may not be correct. We will see in the courts, but
I think what was tried to be laid out there were standards to
use. You are trying to get at the word navigability. So if
there were individuals using a water body for foreign travel,
recreational purposes, shellfish, one would assume that the
water body was of such size and ability to support commerce,
and a ship that is on the water would be navigable. You
wouldn't find a ship on a piece of water that was not
navigable, of that size.
Mr. Ose. Mr. Duncan.
Mr. Duncan. No.
Mr. Ose. I will just keep going then.
I want to go back to the process by which we will get to
published rules, even if it is just as draft for public
comment. What is the hangup, Mr. Izzo and Mr. Fabricant, on
finding some closure at the agency level for getting out a
notice?
Mr. Fabricant. Again, we have been dealing with the
judicial decisions over the course of the last year as they
talk about the SWANCC decision and how they have raised
questions regarding SWANCC and how it should be applied. Again,
it is a complex legal and policy issue we are dealing with and
looking at individual fact patterns and how they apply to the
standards that the Court laid out, and the questions that have
been raised in the Federal courts.
With that kind of backdrop, we are trying to bring to
closure, and we have elevated over the course of the summer the
issues, and we are trying to refine what needs to be the
subject of the rulemaking. So we do plan very soon to initiate
that process publicly.
Mr. Ose. What does that mean, very soon? Is it kind of like
the word navigable?
Mr. Fabricant. I would hope we wouldn't need the Supreme
Court to define it for me. We plan to elevate it within our
offices within the next--soon.
Mr. Ose. Mr. Izzo, can you define what soon means?
Mr. Izzo. Sir, I think we are very close. As a matter of
fact----
Mr. Ose. What does close mean?
Mr. Izzo. Close means we had hoped to avoid this hearing by
getting it done by now.
Mr. Ose. Want to have another one?
Mr. Izzo. I don't think that will be necessary, sir. I
think we are very close to this, and you will see satisfactory
performance very soon.
Mr. Ose. What does close mean? What does very soon mean,
Mr. Fabricant?
Mr. Fabricant. Again, it is difficult for me to lay down a
time line here today, because we do need to elevate it within
our respective offices and get interagency review on our rule
proposal as well as administration review.
Mr. Ose. What other agencies need to look at the rule
before it comes out?
Mr. Fabricant. As you transmit a rule proposal or advance
notice to the Office of Management and Budget for OIRA review,
an interagency process occurs where various agencies will look
into and comment upon your proposed draft. Then there are the
normal, traditional peer review and that process. Again, there
is a process to actually finalizing the rulemaking portion.
Mr. Ose. When do you expect that finalization to occur?
Mr. Fabricant. I can lay out for you the process. The
specific process that OIRA requires is a 90-day review period.
Mr. Ose. That is after you finish?
Mr. Fabricant. Correct, after Army Corps and EPA.
Mr. Ose. I am interested in these two agencies. When are
you going to finish what you are supposed to finish?
Mr. Fabricant. Very soon.
Mr. Ose. I am going to keep asking. What does very soon
mean? It has been a year and a half, Mr. Fabricant.
Mr. Fabricant. It is hard for me, without having the issue
elevated within our particular agencies, to give you a hard and
fast timeline but I could certainly return to the office and
try to firm up a timeline for you within the next several days.
Mr. Ose. Do you have a certain date at which you have
already targeted the issuance of this item?
Mr. Fabricant. We have targeted a deadline for our next
meeting to try to bring to closure our issues.
Mr. Ose. You have targeted a deadline. What does that mean?
Mr. Fabricant. Early October. In early October, the first
week of October, we are looking at a meeting to try to bring to
closure the issues still outstanding.
Mr. Ose. Mr. Izzo, do you agree with that?
Mr. Izzo. Yes, sir. The only thing I would add is that this
is obviously our top regulatory issue, so it gets full
priority, I believe, from both agencies. While we cannot give
you an exact date, we are focused on the beginning of October
and we are doing everything we can to get there quickly.
Mr. Ose. All I am trying to do is give both sides or all
sides of this issue nongovernmental in nature the opportunity
to exercise their due process rights. So what does the deadline
for your next meeting mean?
Mr. Fabricant. It means the working group, which includes
Mr. Izzo and myself, will be meeting the first week of October
to try to bring closure to the issues that are still
outstanding and then elevate the principals within our
agencies.
Mr. Ose. Is this your final meeting?
Mr. Fabricant. We would hope it would be, but there are
still pending issues as to the scope of the rulemaking that we
need to resolve.
Mr. Ose. Of a legal nature, in front of courts and the
like?
Mr. Fabricant. Again, a blend of legal and policy matters
that we are discussing.
Mr. Ose. So when do you expect to resolve those?
Mr. Fabricant. Again, we hope in the first week of October
so we can elevate it to principals within our agencies.
Mr. Ose. The first week of October would be--oh, I am going
to get a date. The first week of October would mean what?
Mr. Fabricant. Friday of the first week of October.
Mr. Ose. Give me a calendar. The first Friday of October is
October 4. Is that the Friday you are referring to?
Mr. Fabricant. Yes, Mr. Chairman. Again, I am representing
EPA today.
Mr. Ose. If it were someone else, I would be asking the
same questions.
Mr. Fabricant. I understand. We hear you loud and clear to
get this process moving and resolved. That meeting is intended
to do that. Whether we can accomplish the goal, I am not
certain, but it certainly is intended to do that on October 4.
Mr. Ose. I have my little Blackberry out here and I have
gone to my calendar function and pulled up October 4. I have
put in here the SWANCC--governing body--what do you call it?
Mr. Fabricant. Interagency Work Group.
Mr. Ose. Interagency Work Group. Final meeting?
Mr. Fabricant. Hopefully final meeting.
Mr. Ose. What does that mean?
Mr. Fabricant. Our hope is that we can finalize at least at
the Work Group level the open issues.
Mr. Ose. Hopefully is not good enough for me. I don't know
how to spell it, so it is either the final meeting or it is
not. Which is it?
Mr. Fabricant. It is intended to be the final meeting.
Mr. Ose. Mr. Izzo, do you agree with that?
Mr. Izzo. Yes, sir, I do. That is the plan.
Mr. Ose. Once it leaves this final meeting on or before
October 4, where does it go?
Mr. Fabricant. If policy decisions have been made at that
time and there is consensus, we bring it to principals to
review and sign-off on.
Mr. Ose. What does that mean?
Mr. Fabricant. It means it gets elevated within our
agencies to individuals with rulemaking authority--Governor
Whitman in my agency. Again, after those decisions are made and
this process will be occurring concurrently to develop language
to actually have a document ready as soon as possible, but
there will certainly be some period of drafting after policy
decisions have been made.
Mr. Ose. Mr. Izzo, where does it go on your side of the
discussion?
Mr. Izzo. It would go to the Acting Assistant Secretary for
the Army for Civil Works, Mr. Brownlee, for approval.
Mr. Ose. That would be Les Brownlee, right?
Mr. Izzo. Yes, sir.
Mr. Ose. Mr. Sansonetti, what role do you play in this?
Mr. Sansonetti. If they ask us to attend their meetings, we
attend and give them advice at the meetings, but they obviously
make the final decision on performing rulemaking and take it to
the top of their two agencies.
Mr. Ose. October 4? I have some more questions.
Mr. Duncan, do you have anything?
Mr. Duncan. No.
Mr. Ose. Mr. Sansonetti, is the Justice Department
litigating any cases involving geographically isolated waters,
whatever the word isolated means?
Mr. Sansonetti. The answer is no.
Mr. Ose. None. On the basis of SWANCC, you made a decision
that the Corps' jurisdiction does not extend to these waters?
Mr. Sansonetti. There just happen to be no cases in the
pipeline right now that deal with that.
Mr. Ose. Mr. Izzo, the Department of Interior has actually
published a definition of isolated which reads as follows,
``wetlands surrounded by upland may be considered isolated
since they are separated from other wetlands by dry land. This
is isolation from a geographic landscape or geomorphic
perspective.''
The question I have is, if a wetland is separated from a
jurisdictional water by dry land, does the agency consider that
wetland to be isolated?
Mr. Izzo. Well, sir, those decisions about the facts of an
individual case would be made by our district personnel
actually looking at the site, because it gets a little
complicated in that. There are multiple definitions of these
different types of wetlands out there. That would be the
definition that would be applied.
Mr. Ose. The Administrator of the EPA under an elevation
issue or otherwise?
Mr. Izzo. The EPA provides us the guidance for implementing
these regulations, the environmental guidance, so we would
follow their definition.
Mr. Ose. Mr. Fabricant, if a wetland is separated from a
jurisdictional water by dry land, does the EPA consider that
wetland to be isolated?
Mr. Fabricant. As Mr. Izzo stated, it is a fact-specific
analysis that occurs at the local level. What we would do is
follow our regulatory language regarding adjacency and look to
the definition which includes contiguous neighboring,
bordering. The separation by a berm does not necessarily lead
to a break in jurisdiction as our regulations spell out, but it
is a fact-sensitive analysis that needs to occur.
Mr. Ose. Has the EPA provided the Corps with a definition
of contiguous?
Mr. Fabricant. To the best of my knowledge, no, Mr.
Chairman.
Mr. Ose. Is there a definition of the word contiguous in
regulation or statute?
Mr. Fabricant. I don't believe so.
Mr. Ose. Has the EPA provided the Corps with a definition
of the word bordering?
Mr. Fabricant. To the best of my knowledge, no.
Mr. Ose. Is there a definition in statute or regulation of
the word bordering?
Mr. Fabricant. To my knowledge, no.
Mr. Ose. Has the EPA given the Corps a definition of the
word neighboring?
Mr. Fabricant. Same answer, no.
Mr. Ose. Is there a definition in statute or regulation for
the word neighboring?
Mr. Fabricant. No, there is not. That sort of begs the
question whether this might be an appropriate area to consider
for additional rulemaking. It is currently being discussed
within the agency.
Mr. Ose. I want to come back to my central point. Without a
definition, without a standard, without cooperation between
your agencies to move this forward, I don't care what your
perspective is, whether you are over here or over there, this
area is rife with opportunity for unequal treatment before the
law. A citizen in one part of the country might be treated far
differently than a citizen in another part of the country.
Mr. Ose. The gentleman from Ohio for 5 minutes.
Mr. Kucinich. I thank the gentleman.
Mr. Sansonetti, the Justice Department has filed briefs in
a number of post-SWANCC cases in the Federal District and
Appeals Courts and some of those have been signed by you. These
briefs have consistently argued that the Supreme Court's
decision should be read narrowly, that the decision only held
that the Clean Water Act did not authorize the Army Corps of
Engineers to regulate isolated waters based solely on the
presence of migratory birds under the so-called migratory bird
rule. Do you stand by this position?
Mr. Sansonetti. Of course, they are our briefs. We signed
them.
Mr. Kucinich. One DOJ brief states, ``The regulations have
consistently construed the act to encompass wetlands adjacent
to tributaries to traditional navigable waters be they primary,
secondary, tertiary, etc. since 1975, a construction that
comports with Congress' intent to control pollution at its
source and broadly protect the integrity of the aquatic
environment.'' The question is, do you agree that in order to
achieve the goals of the Clean Water Act to restore and
maintain the physical, chemical, and biological integrity of
the Nation's waters, pollution must be controlled at its
source, including wetlands and small streams that are
hydrologically connected to navigable waters?
Mr. Sansonetti. The briefs speak for themselves as far as
the legal position. In regard to your comments about what a
policy should be, I am afraid that particular question has to
be answered by my clients. They are the ones that determine the
policies involved with the Clean Water Act.
Mr. Kucinich. Would one of the gentlemen like to respond?
Mr. Fabricant. As a legal matter, we follow the statute in
the Clean Water Act and associated regulations, and we have
referred cases that have involved those types of issues to the
Department of Justice who has submitted briefs on our behalf as
we have laid out.
As a policy matter, I am a General Counsel speaking to the
legal issue and would not address the policy matter here today.
Mr. Kucinich. Mr. Fabricant, you mentioned bringing closure
to a number of issues on October 4. Would you elaborate what
those issues are?
Mr. Fabricant. As referenced earlier, it is a series of
questions raised by Federal courts in the wake of the SWANCC
decision that we are looking at for a rulemaking.
Mr. Kucinich. What are the issues?
Mr. Fabricant. Issues such as intermittency of streams,
culverting issues that have come up in particular cases. Those
are examples of the things we are currently talking about
specifically raised by Federal courts as questions in light of
SWANCC.
Mr. Kucinich. Thank you.
[The prepared statement of Hon. Dennis J. Kucinich
follows:]
[GRAPHIC] [TIFF OMITTED] T8327.025
[GRAPHIC] [TIFF OMITTED] T8327.026
Mr. Ose. I am advised that we have three votes scheduled,
which will take who knows how much time, but they are scheduled
very soon. I have some additional questions and I want to run
through a couple quickly, then we will finish this panel. We
will submit the additional questions in writing and would
appreciate a response in a timely manner. Timely means a week
to 10 days. I would be happy to give you a date if you like.
Mr. Sansonetti, is the Justice Department litigating any
cases involving adjacent wetlands?
Mr. Sansonetti. I believe the answer to that is yes but
none of our current cases rely on the (a)(3) definition we
discussed earlier for jurisdiction.
Mr. Ose. Is (a)(3) the only location where adjacency is a
criteria in terms of wetlands?
Mr. Sansonetti. I think not. I think (7) refers to wetlands
adjacent to waters also.
Mr. Ose. Do you know whether or not we have a policy
statement as to what is and what isn't adjacent to a wetland?
Mr. Sansonetti. I believe the regulation says adjacent is
bordering, contiguous, or neighboring and those are what the
fights are about.
Mr. Ose. For which we have no statutory or regulatory
definitions?
Mr. Sansonetti. That is one of the items the Army Corps and
the EPA are going to have to deal with in the rulemaking.
Mr. Ose. I am kind of curious how you all can take the
position in a legal case when you don't have these items
defined.
Mr. Sansonetti. If a case is filed, you don't have a
choice. If you are sued and they come to you because they have
made a decision not to issue a permit and somebody says they
should have issued a permit, and the fight is over adjacency,
then I need to defend the Army Corps' cut on it. Sometimes it
is because they granted a permit, many times it is because they
didn't grant a permit.
Mr. Ose. In these discussions when these items are brought
to you, do you flesh out a position on what adjacency is or is
not?
Mr. Sansonetti. They are certainly discussed and they will
say in this particular instance, it was right next door to a
navigable tributary and surely that must mean adjacent. In
other instances, it is six miles away and somebody goes, are
you sure? They say that is why we didn't say they needed a
permit. Somebody else, an environmental group, somebody wanting
to stop the activity says that it is close enough, you should
have made them get a permit. So the topic comes up continuously
on a case-by-case basis.
Mr. Ose. I would be curious about your experiences in
court. How do you straddle these amorphous positions? I don't
get it. You have a highly variable situation here. How do you
prosecute your defense?
Mr. Sansonetti. It is part of the joys of practicing law,
Congressman.
Mr. Ose. So you don't know either.
Mr. Izzo, in the SWANCC decision, I want to go back to the
term navigable. In the SWANCC decision, the Court found, and I
talked to you about the quote on navigability, but that quote
raises a number of questions about non-navigable waters,
including non-navigable tributaries. I want to run through a
series of questions because I am trying to give you some food
for thought, if you will, in this meeting that is going to be
held very soon.
If a water is connected to a truly navigable water, must
there be a continuous surface flow to render that water
jurisdictional?
Mr. Izzo. If they are connected. If they are two bodies of
water connected, I think there is clearly jurisdiction.
Mr. Ose. What about an ephemeral stream?
Mr. Izzo. There it gets a bit more particular and that is
one of the issues we are looking at for rulemaking.
Mr. Ose. How about an agricultural ditch that was man made
so as to drain a field?
Mr. Izzo. Again, those are issues that we are looking at
for rulemaking because these get very complicated. For example,
in a dry year, some of your ephemeral streams almost cease to
exist by definition. You could go out there and with some of
the public interested in getting permits, depending on the
weather conditions, which can be long term, something that was
a wetland several years ago may be gone now. We are wrestling
with how to define those issues in a rulemaking.
Mr. Ose. It is my understanding that ephemeral streams in
some areas of the country were not jurisdictional prior to
SWANCC. Is that true?
Mr. Izzo. I don't know, sir.
Mr. Ose. Is there an upstream point on these ditches or
ephemeral streams or tributaries at which a continuous flow
would become sufficiently de minimis that it would no longer
qualify as jurisdictional?
Mr. Izzo. Again, that is one of the issues that we need to
look at for rulemaking. We understand the problem completely.
That is why it has taken so long.
Mr. Ose. Is there a point at which flow would become
sufficiently ephemeral or temporary that a stream or tributary
or ditch would no longer qualify as jurisdictional?
Mr. Izzo. Same answer, sir.
Mr. Ose. The Clean Water Act does not incorporate into its
jurisdiction groundwater by our reading. Does the agency
consider a groundwater flow to be a connection that can
establish jurisdiction over an upgradient water?
Mr. Izzo. I don't want to speak for the EPA, but I believe
they stated in the past and the courts have agreed that
groundwater itself generally does not constitute waters of the
United States. However, under certain circumstances, that
groundwater may provide a sufficient base for establishing a
connection. Again, that is something we should look at through
rulemaking.
Mr. Ose. You are suggesting this groundwater might be
navigable?
Mr. Izzo. No, sir, I am not suggesting the groundwater
might be navigable, but it might provide a sufficient
connection hydrologically to establish adjacency.
Mr. Ose. So if they turned off the pump, it would no longer
be adjacent?
Mr. Izzo. I wouldn't want to get at that.
Mr. Ose. Do you see the dilemma that constituents in
everyone's district have?
Mr. Izzo. Yes, sir. I am very sympathetic to that and I
would like to believe that our Corps regulatory people in the
districts are also very sympathetic to that and that they are
working with the regulated public to minimize these problems. I
think that is why we have so relatively few cases that make it
to Mr. Sansonetti.
Mr. Ose. Is there a single standard nationwide for defining
adjacency?
Mr. Izzo. No, sir. That is what the rulemaking is about.
Mr. Ose. Is there a single standard nationwide for defining
isolated waters?
Mr. Izzo. No, sir. Again, we are going to address those
things in the rulemaking.
Mr. Ose. On October 4.
Mr. Izzo. On or before October 4.
Mr. Ose. At least at your level?
Mr. Izzo. At least at our level, yes, sir, we hope so.
Mr. Ose. I have to go vote.
I want to thank the witnesses for coming. I am determined
that you shall put out a rule. I am not trying to tell you what
the rule says, but I am intent on getting out a rule and
getting the due process started for the benefit of the country.
The issues of what is in or not in the courts are not going
to change. You are always going to have cases in court, so you
might as well face that and get on with it.
Mr. Sansonetti, Mr. Fabricant, Mr. Izzo, we appreciate you
coming. I am determined to get this thing out one way or the
other. We deserve to know what the standards are. Whatever the
rule is, it is, but get it out.
We are going to recess until 12:15 p.m., so I would
recommend everyone go get a bite to eat. We have the room until
2 p.m. We will be finished by 2 p.m. I will be back at 12:15
p.m. We are in recess until then.
[Recess.]
Mr. Ose. We will reconvene the hearing of the Subcommittee
on Energy Policy, Natural Resources and Regulatory Affairs.
Joining us in our second panel are a number of witnesses:
Virginia S. Albrecht, partner, Hunton & Williams; M. Reed
Hopper, principal attorney, Pacific Legal Foundation; Nancie G.
Marzulla, president, Defenders of Property Rights; Raymond
Steven Smethurst, partner, Adkins, Potts & Smethurst; Gary
Guzy, partner, Foley Hoag, L.L.P.; and Patrick Parenteau,
professor of law, Vermont Law School. Welcome.
As I said earlier, we routinely swear our witnesses, so if
you would all please rise and raise your right hand.
[Witnesses sworn.]
Mr. Ose. Let the record show the witnesses all answered in
the affirmative.
We have received your written testimony; we have gone
through it. In the interest of time given that we have another
subcommittee coming in at 2 p.m., I would like to go through
everyone's oral testimony. If you can summarize, that would be
great. Why don't we go to 4 minute summary periods. That will
expedite things and we will go directly to questions.
Ms. Albrecht.
STATEMENTS OF VIRGINIA S. ALBRECHT, PARTNER, HUNTON & WILLIAMS;
M. REED HOPPER, PRINCIPAL ATTORNEY, PACIFIC LEGAL FOUNDATION;
NANCIE G. MARZULLA, PRESIDENT, DEFENDERS OF PROPERTY RIGHTS;
RAYMOND STEVEN SMETHURST, PARTNER, ADKINS, POTTS & SMETHURST;
GARY GUZY, PARTNER, FOLEY, HOAG, L.L.P.; AND PATRICK PARENTEAU,
PROFESSOR OF LAW, VERMONT LAW SCHOOL
Ms. Albrecht. Thank you for holding this hearing and giving
me the opportunity to come before you.
The SWANCC issue has been an issue of tremendous importance
for our clients ever since SWANCC was decided and actually the
issue of Clean Water Act jurisdiction long before SWANCC was
decided.
Just to quickly summarize, I have given you extensive
things including our Law Review article on the meaning of
SWANCC and the legislative history behind the Clean Water Act.
Mr. Ose. Those of you who have submitted attachments and
exhibits, those are all going to be entered into the record.
Ms. Albrecht. I want to make three points. First of all,
SWANCC is about more than the migratory bird rule. The issue in
the case was the Corps' application of the migratory bird rule
to claim jurisdiction over these isolated wetlands, but the
rationale the Supreme Court used in tackling that issue informs
all decisions about what the Clean Water Act means.
In the case, the reason they held these isolated waters
were not jurisdictional was the Court went back and said what
was Congress trying to do when it passed the Clean Water Act
and talked about how Congress was exercising its authority to
regulate navigation. That gets to the passage that you were
questioning the witnesses about earlier. The Court said the use
of the term navigable indicates what Congress was trying to get
to, its traditional authorities over navigation.
That means that jurisdictional theories based on effects on
commerce are no longer valid theories because that isn't what
Congress was trying to exercise. Those effects on commerce
theories like use by out-of-State travelers, use for shellfish
sold in interstate commerce, those kinds of things are
unrelated to navigation.
We would say--developed quite extensively in the article
attached--those kinds of jurisdictional theories are no longer
valid after SWANCC.
Second, I wanted to make a point about the post-SWANCC
cases that have been decided. Mr. Sansonetti talked about how
the Justice Department has filed 24 briefs. There have been 17
decisions. It is really important to understand the procedural
posture of most of those cases.
About half of those cases--not quite half--were situations
in which one of the parties was trying to set aside a plea
agreement, a guilty plea, a consent decree, or something else
which had been entered into prior to SWANCC. After SWANCC came
out, they came back and said, ``I want to change my mind, I
don't want to take that plea.''
In those situations, the courts uniformly looked at that
and said, ``You made your bed; you are going to lie in it. We
are not going to go back and revisit that argument.'' In the
cases in which the courts had been operating on a clean slate
where they had been looking in the first instance at whether
something is jurisdictional or is not, the Government has won
about half of those cases and the people challenging the
Government's jurisdiction have won about half of those cases.
So there are profound issues that have come out and that are
being decided.
A third point I would like to make is that when the
migratory bird rule was in effect, because migratory birds are
everywhere, everything was jurisdictional. All the other
jurisdictional tests kind of fell by the wayside--what is
tributary, what is adjacent, etc.
Now what has happened because the migratory bird rule did
provide an umbrella and now that umbrella is gone, now these
issues about what is meant by adjacency, what is meant by
tributary, those are very, very important issues that need to
be addressed.
One of the things that came earlier during testimony was
whether or not a mere connection is enough. The Government in
some cases has been advancing that theory and it is incorrect.
I hope you will ask me some questions about it.
[Note.--Exhibits in support of statement of Ms. Albrecht
may be found in subcommittee files.]
[The prepared statement of Ms. Albrecht follows:]
[GRAPHIC] [TIFF OMITTED] T8327.027
[GRAPHIC] [TIFF OMITTED] T8327.028
[GRAPHIC] [TIFF OMITTED] T8327.029
[GRAPHIC] [TIFF OMITTED] T8327.030
[GRAPHIC] [TIFF OMITTED] T8327.031
[GRAPHIC] [TIFF OMITTED] T8327.032
[GRAPHIC] [TIFF OMITTED] T8327.033
[GRAPHIC] [TIFF OMITTED] T8327.034
[GRAPHIC] [TIFF OMITTED] T8327.035
[GRAPHIC] [TIFF OMITTED] T8327.036
[GRAPHIC] [TIFF OMITTED] T8327.037
[GRAPHIC] [TIFF OMITTED] T8327.038
[GRAPHIC] [TIFF OMITTED] T8327.039
[GRAPHIC] [TIFF OMITTED] T8327.040
[GRAPHIC] [TIFF OMITTED] T8327.041
Mr. Ose. Thank you.
Mr. Hopper for 4 minutes.
Mr Hopper. I wish to thank you for the invitation to
present the views of Pacific Legal Foundation on the
significance of the SWANCC decision and the lack of direction
from the EPA and the Corps as a result of that ruling.
The SWANCC decision was a warning about agency
irresponsibility. The EPA and the Corps have a responsibility
equal to the Supreme Court to ensure they act within the scope
of their statutory and constitutional authority. This is a
responsibility that the EPA and the Corps not only shirked but
willfully abandoned. It was irresponsible for these executive
branch agencies to disregard the plain language of the Clean
Water Act and the intent of Congress, and champion an
interpretation that in the words of the Court ``pushed the very
limit of congressional authority.''
Because the agencies' interpretation created, rather than
avoided, a constitutional conflict that likely would have
resulted in invalidation of Section 404, the Supreme Court had
to limit the scope of the Clean Water Act to save the 404
Program. To ensure the EPA and the Corps got the message and
understood their responsibility, the Court in SWANCC clearly
defined the reach of Federal authority under Section 404 of the
Clean Water Act. The EPA and the Corps were put on notice that
their jurisdictional claims over virtually all waters in the
United States were statutorily, and likely constitutionally,
invalid.
To underscore its warning about agency irresponsibility,
the Court took pains to spell out the constitutional and
federalism problems the agencies' course of conduct
precipitated. As a result, the SWANCC decision should have put
an end to the sweeping authority these agencies have so
zealously but illegally exercised over non-navigable, non-
adjacent, intrastate waters. But little has changed.
The EPA and the Corps have not revised their unlawful rules
or issued a formal jurisdictional statement in keeping with
SWANCC. To the contrary, to this day, these agencies maintain
and represent in court that they have authority over any water
that has a mere surface connection to a navigable water, no
matter how distant or intermittent.
It is a remarkable breach of the public trust when
Government officials seek to extend their authority beyond any
reasonable interpretation of the statutory law they are
commissioned to enforce. The EPA and Corps' expansion of the
term navigable waters to encompass all other waters of the
United States including, at times, potholes, puddles, and
ditches is singular in its audacity. It is a double breach when
the same officials refuse to follow a decision of the highest
court that clearly delineates their statutory authority, like
SWANCC, which is the focus of this hearing. Such officials
usurp the role of both Congress and the courts and become a law
unto themselves. We, the citizens, are left to conclude that
the rule of law has no meaning and that Federal rules and
regulations are based on bureaucratic whim.
Individuals in the regulated community have a right to know
what the Government authorities expect them to do to comply
with the law, but without a clear jurisdictional statement by
the EPA and the Corps, no one knows what these agencies may
claim the law requires.
In the opinion of the Pacific Legal Foundation, these
agencies have failed to meet a legal and a moral obligation to
clarify their jurisdictional authority under Section 404 of the
Clean Water Act as interpreted by the Supreme Court.
Thank you.
[The prepared statement of Mr. Hopper follows:]
[GRAPHIC] [TIFF OMITTED] T8327.042
[GRAPHIC] [TIFF OMITTED] T8327.043
[GRAPHIC] [TIFF OMITTED] T8327.044
[GRAPHIC] [TIFF OMITTED] T8327.045
[GRAPHIC] [TIFF OMITTED] T8327.046
[GRAPHIC] [TIFF OMITTED] T8327.047
[GRAPHIC] [TIFF OMITTED] T8327.048
[GRAPHIC] [TIFF OMITTED] T8327.049
[GRAPHIC] [TIFF OMITTED] T8327.050
[GRAPHIC] [TIFF OMITTED] T8327.051
[GRAPHIC] [TIFF OMITTED] T8327.052
Mr. Ose. Thank you, Mr. Hopper.
Ms. Marzulla.
Ms. Marzulla. Thank you for having me and I would like to
echo what my two prior colleagues have said with respect to the
SWANCC decision. I agree that the reach of the SWANCC decision
goes beyond simply the migratory bird rule. It is very clear if
you read the SWANCC decision that the Court is talking about
the regulatory jurisdiction of the Corps and the EPA over
isolated wetlands. The Court further underscores the point that
the Clean Water Act is not coterminous with the Commerce
Clause, so there very clearly are constraints put upon the
jurisdictional authority of the these two agencies.
I would like to also step back a bit and talk generally
about the wetlands program and how these two agencies'
consistent overreaching and failure to abide by the clear
language of the statute and engage in a rulemaking approach
that is overly broad and vague has such tremendous impact on
landowners.
I think it was a Congressman today who made the point that
it is the small landowner, the small businessman, who suffers
when you have agency rulemaking that goes so far beyond the
reach of the statute, that they are the ones that bear the
brunt of the agencies' failure to confine their authority to
what Congress intended.
We urge this committee forward with its efforts to require
the agencies to engage in the type of rulemaking that will
implement SWANCC, that will confine their authority to what
Congress intended. In some ways the issue before us today is
who ultimately is going to decide what these agencies will do.
Will the agencies continue with their approach of anything goes
or will they alternatively confine themselves to the authority
that Congress intended in the Clean Water Act?
We would urge that this subcommittee continue with close
oversight. These are agencies that have a history of going off
the reservation, and your oversight is welcome and appreciated.
[The prepared statement of Ms. Marzulla follows:]
[GRAPHIC] [TIFF OMITTED] T8327.053
[GRAPHIC] [TIFF OMITTED] T8327.054
[GRAPHIC] [TIFF OMITTED] T8327.055
[GRAPHIC] [TIFF OMITTED] T8327.056
[GRAPHIC] [TIFF OMITTED] T8327.057
[GRAPHIC] [TIFF OMITTED] T8327.058
[GRAPHIC] [TIFF OMITTED] T8327.059
[GRAPHIC] [TIFF OMITTED] T8327.060
[GRAPHIC] [TIFF OMITTED] T8327.061
[GRAPHIC] [TIFF OMITTED] T8327.062
[GRAPHIC] [TIFF OMITTED] T8327.063
[GRAPHIC] [TIFF OMITTED] T8327.064
[GRAPHIC] [TIFF OMITTED] T8327.065
[GRAPHIC] [TIFF OMITTED] T8327.066
Mr. Ose. Mr. Smethurst.
Mr. Smethurst. I appreciate the opportunity to supplement
my written remarks.
In 1975, a Federal District Court here in Washington found
that the Corps' 1974 regulations did not regulate enough an
ordered it to enlarge their coverage. In 2001, the U.S. Supreme
Court found the Corps indeed had it right in their 1974
regulations, suggesting that the current regulations go too
far. Consequently, I was heartened to hear from the preceding
panel that both the EPA and the Corps are considering actually
promulgating new regulations, because if there is one thing
that the SWANCC case suggests, and everyone seems to pretty
much ignore, is the fact that the regulations, as they
currently exist, may indeed go well beyond what Congress
intended in 1974.
I come from an area where I deal with three separate
districts of the Corps of Engineers: Philadelphia, Baltimore,
and Norfolk. I can tell you as a practical matter, from
personal experience and discussion with those people in the
field who do these delineations and deal with Corps staff
people on a day to day basis, it is utter chaos out there. Not
only is there a difference between districts in how these terms
are being defined, but there is a difference between people in
the same district.
There is guidance out there. It is not written down and it
varies from district to district, and some within a district
will comply with that guidance and others in the same district
throw it in the trash can. So it depends upon in many cases who
you are dealing with as to what you get on behalf of your
client.
What are the other things that need to be addressed? There
have been mentioned today tributaries. I would like to show
you--as you have mentioned, I am counsel in the Deaton case--a
couple of drawings I believe are on the screen. The first has
to deal with the subject of both tributary and adjacency.
The Deaton property is that little triangle in the upper
righthand corner of the drawing. It is sort of a stick drawing
showing how water flows from the area of the Deaton property
through a series of interconnected ditches, the major one of
which I will show you in a moment.
It passes over five separate dams before it finally reaches
the navigable waters of the Wicomico River which is a tidal,
navigable river leading to the Chesapeake Bay from the city of
Salisbury on Maryland's Eastern Shore. It is eight miles from
the Deaton property via these ditches and one stream, the
Beaver Dam Creek, before you finally get to the east prong of
the Wicomico River.
Some of the questions in this case involve some of the very
points mentioned so far. The Government contended that the
ditch in front of the Deaton property, a county constructed,
county maintained, roadside drainage ditch put there to drain
water off the road so when it rains the road isn't flooded.
No. 2 shows you the beginning of this ditch viewed looking
toward the Deaton property from the very beginning point of
this ditch where it is nothing more than a slight swale in the
ground. Water will go in that little swale when it rains. Other
than that, probably not.
Picture No. 3 looks upstream from the northeasterly side of
the Deaton property and this is what the stream looks like or
the ditch looks like just at the point before it passes in
front of the Deaton property. This is the water body argued to
be a tributary.
Picture No. 4 depicts the roadside ditch, taken from where
there is a pipe under the road--looking at the very end of this
roadside ditch before it actually passes under the road and
continues on as another ditch on the other side of the road.
In the Deaton case, we were dealing with the definition of
tributary primarily and definition of adjacency. If we can go
back to drawing No. 1, the U.S. District Court did not buy the
tributary argument, but it did buy the adjacency argument,
finding that wetland was adjacent to the Wicomico River eight
miles away. That is one issue on appeal.
I will stop now since I have exhausted my time.
[The prepared statement of Mr. Smethurst follows:]
[GRAPHIC] [TIFF OMITTED] T8327.067
[GRAPHIC] [TIFF OMITTED] T8327.068
[GRAPHIC] [TIFF OMITTED] T8327.069
[GRAPHIC] [TIFF OMITTED] T8327.070
[GRAPHIC] [TIFF OMITTED] T8327.071
[GRAPHIC] [TIFF OMITTED] T8327.072
[GRAPHIC] [TIFF OMITTED] T8327.073
[GRAPHIC] [TIFF OMITTED] T8327.074
[GRAPHIC] [TIFF OMITTED] T8327.075
[GRAPHIC] [TIFF OMITTED] T8327.076
[GRAPHIC] [TIFF OMITTED] T8327.077
[GRAPHIC] [TIFF OMITTED] T8327.078
[GRAPHIC] [TIFF OMITTED] T8327.079
[GRAPHIC] [TIFF OMITTED] T8327.080
[GRAPHIC] [TIFF OMITTED] T8327.081
[GRAPHIC] [TIFF OMITTED] T8327.082
[GRAPHIC] [TIFF OMITTED] T8327.083
[GRAPHIC] [TIFF OMITTED] T8327.084
[GRAPHIC] [TIFF OMITTED] T8327.085
[GRAPHIC] [TIFF OMITTED] T8327.086
[GRAPHIC] [TIFF OMITTED] T8327.087
Mr. Ose. Mr. Guzy.
Mr. Guzy. I am pleased to testify on the continuing vital
importance of protecting our Nation's wetlands and water
resources. America's wetlands need to be protected, they still
can be protected after the SWANCC decision, and that decision
did not justify yet another effort to attempt to roll back
America's environmental protections.
Before going into detail, let me tell you briefly about my
background. I have practiced environmental law for the last two
decades, including private practice, at the Department of
Justice litigating wetlands cases, and at the Environmental
Protection Agency where I had the honor of serving as the
agency's general counsel from 1998 to January 2001.
EPA and the Corps of Engineers protect our Nation's
wetlands under the authority of the Clean Water Act. That law,
which will celebrate its 30th anniversary next month, was
propelled by pollution so bad that our Nation's rivers caught
fire. Congress set forth some very straight forward goals in
the act, that the chemical, physical, and biological integrity
of the Nation's waters needed to be restored. This law has been
a resounding success, returning significant portions of our
landscape to health, to public enjoyment, and to economic
prosperity. Yet many waters remain toxic.
The United States has lost nearly one-half of its historic
wetlands, on the order of 100 million acres, and continues to
lose at least 60,000 acres of wetlands each and every year. If
we have learned anything from the science that has developed
over the last 30 years, it is that ecosystems are related. They
cannot be treated in isolation.
Protecting our Nation's wetlands is even more important for
protecting public health than originally understood. We are
learning that significant tracks of wetlands need to be
restored, not lost, because they are understood to be essential
and effective natural means for protecting us from flooding,
cleansing our waters from pollution, purifying our drinking
water, and providing crucial habitat.
We see this today in key areas from the Everglades in the
Gulf of Mexico to the Great Lakes, from the Chesapeake to the
San Francisco Bay delta, and the notion that some wetlands are
truly ecologically isolated is increasingly being regarded by
scientists as a myth of the past.
Federal regulation of wetlands was upheld by a unanimous
Supreme Court in 1985 in Riverside Bayview Homes. There the
Court ruled that Federal jurisdiction extended beyond
traditionally navigable waters, requiring permits for fill in
wetlands adjacent to navigable waters and their non-navigable
tributaries. That is why the SWANCC decision represented a
shift and why the Corps counsel and I, working with expert
career staff from both agencies and from the Department of
Justice, issued an explanatory memorandum shortly after the
ruling.
What struck us most about that decision was how narrowly it
was drawn. The Court did not rule on the constitutionality of
the agency's interpretation, although it expressed some doubts,
but instead the ruling holds that the assertion of
jurisdictions beyond the act's authority when it involves all
the following elements: intrastate waters, that are non-
navigable, are isolated, and where jurisdiction is based solely
on the waters' use as habitat for migratory birds for their
effect on interstate or foreign commerce.
Equally striking was that the Court went to great pains to
preserve its earlier ruling in Riverside Bayview, which
recognized the importance of a potential ecological
connectedness between navigable waters and adjacent wetlands,
even those beyond traditional navigable waters.
For isolated waters, the Court simply did not reach the
question of whether some other rationale could demonstrate an
effect upon interstate commerce, such as when their destruction
or degradation impacts jurisdictional waters through flooding,
erosion, or pollution.
As the SWANCC Court noted, 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. SWANCC cannot fairly be viewed as
a sweeping reordering of wetlands authority, somehow tethered
completely to 100 year old concepts of navigability. Nothing in
SWANCC requires the wetlands rules to be rewritten.
As the Justice Department said in a brief, ``the Supreme
Court's refusal to expand Clean Water Act jurisdiction to
isolated intrastate waters does not signal much less hold that
the scope of Clean Water Act jurisdiction approved in Riverside
Bayview should be cut back.''
Rather than weakening wetland protections they need to be
strengthened in common sense ways. Unfortunately, today many
crucial wetlands are not being protected as the administration
appears to be stepping back from asserting jurisdiction.
Overall best estimates are that 20 to 30 percent of the
Nation's wetlands are at risk if so called isolated wetlands
are not federally protected.
What is needed now is straightforward guidance, and I
believe there is no room under the current statute and the
ongoing authority of Riverside Bayview to justify further
limits on wetlands protection without a change in the
underlying statute itself and thus no warrant for delaying
protections by undertaking the broader regulatory process that
the administration has spoken of.
If the real concern expressed by the regulated community is
one of predictability and certainty, and that is a fair
concern, then the easiest solution would be for Congress to
amend the Clean Water Act to remove any doubt about
jurisdiction over isolated wetlands. I commend to this
subcommittee the recently introduced Oberstar-Dingell bill,
which would reaffirm Congress' original intent to protect from
destruction all water bodies, including wetlands, by replacing
the term navigable waters throughout the act with the phrase
``waters of the United States,'' and would help the Clean Water
Act keep pace with the evolving science, and would recognize
the passion Americans truly feel for protecting clean and
healthy waters.
Thank you for the opportunity to testify and I look forward
to answering your questions.
[The prepared statement of Mr. Guzy follows:]
[GRAPHIC] [TIFF OMITTED] T8327.088
[GRAPHIC] [TIFF OMITTED] T8327.089
[GRAPHIC] [TIFF OMITTED] T8327.090
[GRAPHIC] [TIFF OMITTED] T8327.091
[GRAPHIC] [TIFF OMITTED] T8327.092
[GRAPHIC] [TIFF OMITTED] T8327.093
[GRAPHIC] [TIFF OMITTED] T8327.094
[GRAPHIC] [TIFF OMITTED] T8327.095
Mr. Ose. Thank you for coming.
Professor Parenteau.
Mr. Parenteau. Since it hasn't been said before, I will say
it now, I think the Supreme Court got it wrong in SWANCC. I
think rulemaking is a bad idea. I think what is needed is
legislation clarifying the intent of Congress and restoring the
law to where it was before the SWANCC decision scrambled it.
This is, after all, the Clean Water Act we are talking
about. It is not the Navigation Improvement Act. I think the
late Senator Muskie would be shaking his head right now if he
had heard the discussion that took place in this room about the
law he pioneered in 1972 to remediate the terrible
circumstances that existed in the country at that time when
rivers were spontaneously catching fire as a result of their
mistreatment through industrial, municipal, and other
discharges.
Navigable waters is defined in the Clean Water Act as
``waters of the United States.'' Before the Clean Water Act was
enacted in 1972, there was already a Federal program and a
pollution control program under the Rivers and Harbors Act that
dealt with traditionally navigable waters and their
tributaries. Congress did not need to legislate a new law
protecting those navigable waters, hence the reason they chose
the term waters of the United States. One cannot read SWANCC
without simultaneously reading the Riverside Bayview Court's
opinion. That is, as suggested, a unanimous opinion of the
Supreme Court. That is a remarkable feat.
That case involved a programmatic challenge to the 404
permit regs and did not involve just a simple site specific
challenge such as we had in SWANCC. In Riverside the Court
talked about the aquatic ecosystem being an integrated
ecosystem. The Clean Water Act took a systemic approach. Water
moves in hydrologic cycles, pollution has to be attacked at its
source. You cannot protect navigable waters in the valleys
where you find them, you have to protect them in the head
waters where they begin. That is what the Clean Water Act has
been doing successfully for 30 years.
Courts don't send messages, courts don't make policy,
courts decide cases and controversies under Article 3 of the
Constitution. The SWANCC case presented one of the most narrow,
conceivable challenges. It presented a site specific challenge
involving abandoned sand and gravel pits in northern Illinois
where the sole basis of jurisdiction asserted, incorrectly as
it turns out since this site sits on top of a drinking water
aquifer, was used by migratory birds. That is all the case
involved, that is the question the Court certified, that is the
question the Court answered. It answered nothing else. The
rationale of that opinion is not entitled to any more deference
than the rationale in the Riverside case, and I would suggest
to far less because Riverside was a unanimous opinion, the
first time the Court had looked at the Clean Water Act, much
more contemporaneous with the views of the Congress at that
time, much stronger opinion, clearly the intellectual superior
to the decision in the SWANCC case.
The SWANCC Court could have held that the regs were
unconstitutional. That question was framed up as a Commerce
Clause question. It did not do so. The Court could have held
that the Corps and EPA regulations in the (a)(3) category we
have been talking about exceeded the scope of statutory intent
and statutory authority. It did not do so. It was quite careful
and quite precise in saying we are striking down the migratory
bird rule, which is not a rule, rather it's language from the
preamble to a rule. Rulemaking is not necessary to deal with
that. SWANCC did not invalidate any rules. What is the point of
a rulemaking? Rulemakings are to change the law. There is
nothing that needs changing in the law as a result of SWANCC.
This is a ``SWANCC made me do it'' kind of fig leaf we are
talking about here today. That is what we are talking about,
let us label it for what it is.
Rulemaking is a bad idea for the following reasons. What is
the public going to comment on? What we have heard discussion
about is the lower court opinions following SWANCC, which don't
deal with (a)(3) waters which were dealt with in SWANCC, and
whether or not we agree with the briefs the Justice Department
has filed or the briefs the regulated community has filed? That
is no kind of rulemaking the public can meaningfully
participate in and at the end of the day, what are you going to
do, side with the 10 percent that have held there are questions
about whether SWANCC applies to adjacent wetlands, or are you
going to side with the 90 percent who held it does not? So the
rulemaking is a waste of time.
Finally, the importance of isolated wetlands, I will simply
say this. It is indeed an irony that the Bush administration is
announcing a rulemaking process that could result in the
removal of major areas of vital wetlands from protection under
the Clean Water Act, when it was President Bush, Sr. who
pledged the Nation to a no net loss of wetlands policy, which
has been phenomenally successful in reducing the rate from some
400,000 acres to 60,000 acres of loss a year.
President Bush, Sr. did not say, ``No net loss of wetlands
adjacent to navigable rivers and their tributaries.'' He said,
``No net loss of wetlands.'' It was a good goal then, it is a
good goal now. I hope this Congress would adhere to it.
Thank you.
[The prepared statement of Mr. Parenteau follows:]
[GRAPHIC] [TIFF OMITTED] T8327.096
[GRAPHIC] [TIFF OMITTED] T8327.097
[GRAPHIC] [TIFF OMITTED] T8327.098
[GRAPHIC] [TIFF OMITTED] T8327.099
[GRAPHIC] [TIFF OMITTED] T8327.100
[GRAPHIC] [TIFF OMITTED] T8327.101
[GRAPHIC] [TIFF OMITTED] T8327.102
[GRAPHIC] [TIFF OMITTED] T8327.103
[GRAPHIC] [TIFF OMITTED] T8327.104
[GRAPHIC] [TIFF OMITTED] T8327.105
[GRAPHIC] [TIFF OMITTED] T8327.106
[GRAPHIC] [TIFF OMITTED] T8327.107
[GRAPHIC] [TIFF OMITTED] T8327.108
[GRAPHIC] [TIFF OMITTED] T8327.109
[GRAPHIC] [TIFF OMITTED] T8327.110
[GRAPHIC] [TIFF OMITTED] T8327.111
[GRAPHIC] [TIFF OMITTED] T8327.112
[GRAPHIC] [TIFF OMITTED] T8327.113
Mr. Ose. Thank you.
I do want to get everyone's opinion in this first set of
questions.
The Supreme Court stated, ``We said in Riverside Bayview
Homes that the word `navigable' in the statute was of limited
effect and went on to hold that Subsection 4049(a) extended to
non-navigable wetlands adjacent to open waters but it is one
thing to give a word limited effect and quite another to give
it no effect whatsoever. The term `navigable' has at least the
import of showing us what Congress has in mind as its authority
for enacting the Clean Water Act, that is, its traditional
jurisdiction over waters that were or had been navigable in
fact or which could reasonably be so made.''
Ms. Albrecht, given this rationale in the SWANCC decision,
do you believe there are alternative Commerce Clause
connections other than navigation that give the Corps and EPA
jurisdiction under Section 404?
Ms. Albrecht. No. I think the Court is very clear that
Congress was exercising its power over navigation. That means
you have to find a navigation foundation for any assertion of
jurisdiction. That means the Commerce Clause theories presently
in (a)(3) are no longer valid.
Mr. Ose. You are talking about fishing and stuff like that?
Ms. Albrecht. Yes, and the visits by out-of-State visitors
and things like that.
The Court actually in another part of the opinion, in
addition to the part you are citing, when talking about the
Commerce Clause arguments the Government had advanced,
indicated great discomfort and declined even to really address
those Commerce Clause arguments and indicated those Commerce
Clause arguments were at the edge of the Commerce Clause, so
really took the case back to look at what did Congress intend
and look at the statute.
One other element was that the Court said when we are at
the edges of the Commerce Clause, which the assertion of
jurisdiction over isolated waters would take us, then we have
to look for a clear congressional statement of intent to
regulate those very far removed areas. We don't find that clear
congressional statement. In fact, what we find is a clear
congressional statement in which the Congress intends to
preserve and protect the traditional authorities of State and
local government to regulate land and water use.
The Court looked at this case and said, if we would allow
the assertion of jurisdiction over these isolated waters, it
would impinge on those traditional State and local functions,
and we are not going to allow that without finding a clear
congressional intent.
Mr. Ose. I think I got your answer. Your answer is no.
Ms. Albrecht. That is right.
Mr. Ose. Mr. Hopper, same question.
Mr. Hopper. My answer is addressed by a footnote. I also
answer no, but underscored by this footnote where the Court
said--with reference to the legislative history--that ``neither
this nor anything else in the legislative history to which
respondents point signifies that Congress intended to exert
anything more than its commerce power over navigation.''
I would even go so far as to suggest that Congress not only
intended not to exercise its commerce power over anything other
than navigation, but it could not have done so and be
consistent with the latest Supreme Court decisions in Lopez and
Morrison.
Ms. Marzulla. My answer is also emphatically no, and I will
give you one quick example of why allowing the agencies to move
beyond navigation essentially gives the agencies a blank check
to declare a wetland, is what they believe is a wetland as
opposed to what the statute requires with the term navigation.
I represent clients in Reno, Nevada that own what was once
a ranch that was irrigated in the early 1900's with snowmelt
from an adjacent mountain. The melted snow was carried down to
the ranch via pipes and, with irrigation, you could grow crops.
Obviously, the land is no longer used as a ranch, and our
client planned to develop the property for an industrial park.
The Corps originally delineated the land in 1987 as ``not a
wetland,'' which is not a surprising result given that the
average rainfall is about 4 inches.
Subsequently, environmental groups objected, the Corps came
in and redelineated, declaring that the pipelines were
tributaries and the land was criss-crossed with these
tributaries and hence, wetland. That is the type of wetland
decisionmaking when you have rules that exceed the plain
language of the statute.
Mr. Ose. So it is your position that there are no
alternative Commerce Clause connections providing jurisdiction
under Section 404?
Ms. Marzulla. That is correct.
Mr. Ose. This is remarkable to get clarity in these
answers. I hope the rest is as clear.
Mr. Smethurst.
Mr. Smethurst. Prior to SWANCC, I would not have said
``no'' because the language in Riverside Bayview was not that
precise, not that clear, but after SWANCC, I would say frankly
to my surprise, I think the answer is no.
Mr. Ose. Mr. Guzy.
Mr. Guzy. I would differ with the other witnesses. I want
to refer you to the rest of the language that you quoted from
SWANCC when the Court notes that the term navigable is of
limited import, it goes on to say, ``and that Congress
evidenced its intent to regulate at least some waters that
would not be deemed navigable under the classical understanding
of that term.''
SWANCC itself recognizes that Congress' intent was to go
beyond navigability. Navigability in and of itself is not the
complete touchstone for the analysis. It goes on to explain
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.''
I think if you look at that question, you begin to see an
array of connections with navigable waters or waters of the
United States where there can be a very fundamental impact.
Take for example, recent flooding in the Red River where it has
been linked to the demise of extensive expanses of prairie
potholes that may be regarded as isolated wetlands, but the
consequence of filling in those wetlands upstream is that they
no longer can serve the purpose of isolating and filtering
water; and all that water, and all that sediment, and all those
pollutants went downstream to affect navigable waters
themselves.
Let me add one more point, the consequence of all this. The
consequence of a jurisdictional determination is that someone
then has to come to the Corps of Engineers to apply for a
permit, not that they cannot engage in an activity in and of
itself. The experience has been that some 95 percent of permits
are granted, not that people are prohibited from doing the fill
activity itself.
I would submit that with a series of needed reforms, the
Corps of Engineers and EPA are beginning to get it right for
small property owners so that the wetlands rules aren't a
burden on small property owners, although more clarification
certainly could be helpful.
Mr. Ose. You are referring to the phrase where the Court
extended to non-navigable wetlands adjacent to open waters?
Mr. Guzy. I was referring to the phrase--I am not sure what
version of SWANCC you have--at 121 S. Ct. 680 where in the
United States at 167 version, right after the Court says, ``In
so doing, we noted that the term `navigable' is of limited
import,'' and it goes on to say, ``that Congress evidenced its
intent to regulate at least some waters that would not be
deemed navigable under the classical understanding of that
term.''
Mr. Ose. Not navigable.
Mr. Guzy. Yes. I am sorry.
Mr. Ose. Professor.
Mr. Parenteau. If I remember the question, I think my
answer is yes.
Mr. Ose. The question is do you believe there are
alternative Commerce Clause connections that give the Corps and
EPA jurisdiction under Section 404?
Mr. Parenteau. Yes, I do. It is true that Congress'
jurisdiction begins with navigable waters, but it certainly
does not end there. That is the important point about the
SWANCC decision. It did not strike down anything on
constitutional grounds or Commerce Clause grounds. It barely
addressed that other than to say if Congress means this, they
need to say so more clearly.
In the Riverside case, which I find to be remarkably clear
and unambiguous compared to SWANCC, the Court made a point of
saying that the goals of the Clean Water Act cannot be
accomplished without extending beyond traditional notions of
navigable waters, hence their reference to the fact that the
term navigable waters is of limited import.
Indeed, when the statute itself defines the term navigable
waters as waters of the United States, one wonders why the
SWANCC court went back to the term navigable waters. That was
not, as Justice Stevens so aptly pointed out in dissent, the
question presented. The question presented was, what did
Congress mean in 1972 by the term waters of the United States,
and the legislative history of the 1972 act made it absolutely
clear. The conference report, the Senate report, the House
report, these are the top level of legislative history. This is
where courts place the most emphasis in looking for evidence of
congressional intent and every one of those reports repeated
the same thing which is, we are authorizing the agencies to
exercise their authority to the limits of the Commerce Clause.
We have a parallel line of cases under the Endangered
Species Act, a subject which probably raises more than a little
hackles in the room, but nevertheless there are now five
reported decisions, two of which are circuit court decisions,
in both of which the Supreme Court denied cert, upholding the
Endangered Species Act in the regulation of areas of the
country far more isolated, far more intrastate than anything we
are talking about here today.
Mr. Ose. What do you mean when you say they were denied
cert?
Mr. Parenteau. What I mean is that the Supreme Court
declined to review decisions of the lower courts upholding the
constitutionality of the Endangered Species Act in
circumstances which frankly raise much more significant
questions about the authority of Congress to regulate purely
intrastate matters than these.
Mr. Ose. That means the Supreme Court agreed with the lower
court?
Mr. Parenteau. Right--well, we don't know whether they
agreed or disagreed. All we know is that four of them didn't
vote to review it, which is significant.
What I am saying is there is a body of law that hasn't been
discussed. I would be happy to provide the committee with this
and others if they would like to look at it, which has actually
been looking at these questions of Commerce Clause authority in
the context of intrastate land use activities and has concluded
unanimously that the Federal Government has ample authority
under the Commerce Clause to regulate activities like that.
Granted, it is under a different statute, I am not saying you
import it wholesale. What I am saying is that in terms of a
constitutional analysis, the Government, and the Congress, and
the executive branch have full use of all the arguments that
have been made in Commerce Clause cases to bring economic
activity within the power of government to regulate when they
impact matters of national interest.
One of the great ironies of SWANCC, frankly, was that it
struck down the regulation on the basis of migratory bird use.
Justice Holmes in Missouri v. Hollins said, ``There is scarcely
a matter of greater national importance than protecting and
preserving our migratory waterfowl.'' So the Court actually
chose a case that was the worst case to choose from the
standpoint of questioning Commerce Clause authority, because
the Supreme Court has previously validated Federal authority
with regard to migratory birds across the board.
Mr. Ose. Mr. Guzy, if I might, I think the Professor has an
excellent point. It seems to me while you were at EPA, the
claim of jurisdiction was based on the migratory waterfowl
aspect and its connection to the Commerce Clause, and there
were no other assertions that I am aware of other than
migratory waterfowl.
There is an argument to be made that absent other
assertions, that couldn't be made. I am unclear why the
previous delineations or whatever you call them as it relates
to jurisdictional waters only made the migratory waterfowl
assertion.
Mr. Guzy. Before the SWANCC Court itself.
Mr. Ose. Or similar such situations, yes.
Mr. Guzy. I recall asking a fairly similar question myself.
It is right that the SWANCC proceedings were quite lengthy.
They extended over a very long period of time. The Corps
initially had made a decision that site was not jurisdictional,
then it went back and revisited it and ascertained that in fact
there was significant migratory bird activity at the site.
I don't know if then they looked for other types of
jurisdictional nexuses but in hindsight, it does become
apparent that there may be some very significant concerns about
the location of that facility above a drinking water aquifer.
That is an example of the kinds of concerns that arise if you
simply wipe out Federal jurisdiction over isolated wetlands.
Mr. Ose. The Corps' jurisdictional claim though, if I
understand SWANCC on its reexamination, was based on the
migratory waterfowl connection?
Mr. Guzy. I am sorry?
Mr. Ose. The Corps' jurisdictional assertion of this being
subject to regulation was based on a revisit and a finding that
the site in question in fact served migratory waterfowl?
Mr. Guzy. That is correct.
Mr. Ose. So the initial determination was this was not
jurisdictional, then they went back and revisited it and on the
basis on migratory waterfowl, and they made a jurisdictional
claim?
Mr. Guzy. That is my memory of the circumstances in SWANCC.
Mr. Ose. And then, the Supreme Court at the end threw that
out as a rationale for claiming jurisdiction?
Mr. Guzy. That is correct.
Mr. Ose. Anyone have anything to offer clarifying that or
educating me? Mr. Smethurst.
Mr. Smethurst. Because there was no connection between the
migratory waterfowl and anything having to do with navigation,
it wasn't a Commerce Clause decision.
Mr. Ose. It was a decision based on the actual intent of
Congress in passage of the legislation?
Mr. Smethurst. Yes, and that intent being directed
primarily in the direction of navigation aspects of which
migratory waterfowl simply don't have any relevance.
Mr. Ose. Professor Parenteau cited House and Senate report
language and the actual conference committee and the recitation
of the citations he made in terms of the legislative history
and yet what I am hearing both in the initial panel and this
panel is that the Court made a different citation of the
history of this legislation, relying on the word navigable and
its plain meaning, if you will. Am I misunderstanding this? Ms.
Albrecht.
Ms. Albrecht. I think the legislative history, you need to
read and read it carefully and what it says because it has been
misconstrued consistently over the years, including a few
sloppy references by courts.
In fact, what the conference report said was that the
conferees intend that the term navigable waters be given ``the
broadest possible constitutional interpretation unencumbered by
agency determinations which have been made previously for
administrative purposes.'' They were talking about what is the
meaning of navigable waters and in the situation, when you go
back and look at the legislative history, what you see leading
up to the Clean Water Act was about a 5-year dialog between the
Corps of Engineers and the Congress, in which the Corps of
Engineers had been declining to exercise its full powers even
under the Rivers and Harbors Act, that although it had
jurisdiction over the navigable waters, it wasn't exercising
jurisdiction to the full extent of the navigable waters.
What Congress did in that 5-year run up was to say we, ``We
want you to go to the full extent of the navigable waters.''
That is different from saying, ``we want you to go to the full
extent of commerce authority.'' The full extent of the commerce
authority is a familiar jurisdiction that you all can exercise
very frequently when you take jurisdiction over something that
could have an effect on commerce and that can be very broad.
This was tied specifically to this term navigable waters.
Mr. Parenteau. If I might be able to read directly from
page six of my testimony, you can look it up, as they say. This
is the language from the various reports. To me it is striking
in terms of what the Supreme Court did in SWANCC.
``One term that the committee was reluctant to define,
starting with the House report, this language carries through
Senate and conference, the committee was reluctant to define
the term `navigable waters.' The reluctance was based on the
fear that any interpretation would be read narrowly. The
committee fully intends the term `navigable waters' to be given
the broadest possible constitutional interpretation.''
You can cite other segments of the legislative history
until the cows come home, as we say in Vermont, but it will not
change the collective judgment of this body represented in
these reports, not the views of individual Representatives and
Senators, the views of the body itself. This stands as the
definitive statement from 1972 on how that term was to be used.
I challenge anybody to say that means navigation.
Mr. Hopper. I will take that challenge.
Mr. Ose. Mr. Hopper, educate me a bit here. I have a copy
of Washburn Law Journal.
Mr. Parenteau. Yes, Mr. Broom's article.
Mr. Ose. With the same citations and it says, ``The
committee fully intends that the term `navigable waters' be
given the broadest possible constitutional interpretation
unencumbered by agency determinations, which have been made or
may be made for administrative purposes.'' Does that mean that
the agencies shall not be asked or given the authority to
interpret?
Mr. Parenteau. It means that the prior administrative
determinations of what constitutes navigable waters aren't
controlling anymore. It means it is a new day, a new statute, a
brand new statute.
Mr. Ose. It says ``which have been made or may be made.''
It is not retrospective, it is both.
Mr. Parenteau. Right. It is both. It is primarily
retrospective because there were determinations that were very
narrow but it is also forward looking because they are saying
to the agencies, don't in the future confine yourselves to
questions of navigability. We are talking about clean water. We
are talking about restoring and maintaining the chemical,
physical, and biological integrity of the Nation's waters. That
cannot be done within the confines of a statute limited to
navigability. It cannot be done. What we are saying is the goal
Congress set in 1972 was ridiculous.
Mr. Ose. The part I am struggling with here, and I am
trying to get to where we provide the maximum level of
protection for the quality of water we enjoy, but what I am
trying to get to is the point where we have the certainty that
Mr. Guzy was talking about earlier for people who are otherwise
engaged in activities subject or not to jurisdiction, but also
that leads us to a point that is substantiated both in law and
practice and legislative history.
I understand your argument about clean water and the
chemical composition and all that, but I am trying to get back
to the actual law or the legislative history. I can tell you
there are about three chemists in Congress right now, and you
don't want us making chemical determinations, I can guarantee
you.
So again, unencumbered by agency determinations which have
been made or may be made for administrative purposes, that to
me seems like a critical phrase here in terms of constraining
who may or may not define navigable waters.
Mr. Parenteau. Unencumbered to me means don't think about
it the way you used to think about it. Think about it in the
context of protecting the aquatic ecosystem. As the Riverside
Court said, the word integrity was further defined. This is an
amazing point of sophistication I think in 1972. The term
integrity was further defined to mean maintaining structure and
function of the aquatic ecosystem. That is what wetlands do.
Mr. Ose. I went on to Washburn's article.
Mr. Parenteau. That is a student article, let us call it
what it is. It wouldn't have gotten an ``A'' in my class, but
go ahead. I have read it, I have thought about it.
Mr. Ose. The citation goes on to include the comments from
Senator Muskie wherein he equated ``the broadest possible
constitutional interpretation with the waters' use as part of
the continuing highway over which commerce is or may be carried
on.'' This strikes too what I think some have highlighted--I
think Mr. Smethurst in particular with the pictures he put up
there--what is jurisdictional and what isn't, going back in the
legislative history. I am trying to figure out how to reconcile
a continuing highway over which commerce is or may be carried
on with jurisdictional claims eight miles from the head waters
of the Chesapeake Bay contributor or whatever.
Mr. Hopper. I read to you earlier a portion of footnote 3
from SWANCC. I will read to you now its entirety. It relates to
the comment the professor made where he cited the
quintessential statement of intent in the legislative history
showing that Congress wanted this to be interpreted to its
fullest constitutional extent. I cite this as the
quintessential statement of the Supreme Court on what that
legislative history means.
``Respondents refer us to portions of the legislative
history they believe indicate Congress' intent to expand the
definition of navigable waters. Although the conference report
includes the statement that the conferees intend that the term
`navigable waters' be given the broadest possible
constitutional interpretation, neither this nor anything else
in the legislative history to which respondents point signifies
that Congress intended to exert anything more than its commerce
power over navigation.''
``Indeed, respondents admit that the legislative history is
somewhat ambiguous.'' So now we have the Supreme Court
interpretation.
Mr. Ose. I can tell you there is some ambiguity in my mind
here.
Mr. Smethurst. This is why I made the statement earlier
that I think one of the most significant aspects of the SWANCC
decision is just exactly what Mr. Hopper read, because in
effect the Supreme Court is saying if you want to see what
Congress really intended by the 1972 legislation, go back and
look at the 1974 regulations promulgated by the Corps. That is
why I came here to urge you to urge the agencies to get on with
either guidance or a reexamination of their regulations because
implicit in what the Supreme Court is saying is the current
regulations go too far.
Mr. Ose. I think the word ambiguity is an interesting word
in this context.
I want to go on to another question. In the SWANCC
decision, the Supreme Court stated, ``In order to rule for
respondents here, we would have to hold that the jurisdiction
of the Corps extends to ponds not adjacent to open water but we
conclude that the text of the statute will not allow this.''
In your interpretation, Professor, how does this rationale
in the SWANCC decision affect the jurisdiction of the Corps and
EPA, if at all?
Mr. Parenteau. That is the most troublesome statement in
the SWANCC decision. I have said that in the testimony. I
acknowledge that is a troublesome statement. If you took that
statement at face value, or to put it another way, if that were
the holding of the case, we wouldn't be here talking about this
the way we are talking about it.
You have to take statements like that in the context of
statements that have been made in the past by the Supreme
Court, namely the Riverside Bayview case, again, I cannot
stress it enough, a unanimous decision, not a sharply divided
five to four decision, a unanimous decision of the Supreme
Court.
Under the SWANCC rationale, the wetland in Riverside
probably wouldn't have been jurisdictional. There has been talk
about that Riverside wetland being adjacent to or abutting open
bodies of water. It was not. If you look at not only the
decision in Riverside and the way Justice Stephens describes
the decision in his dissent in SWANCC, and in fact, if you go
back as I have to the transcripts of the oral argument in
Riverside, it is quite clear that the area in question was far
removed from the lake itself. It was part of a larger complex
of wetlands. It was wet by virtue of groundwater and
precipitation. There was no definite hydrological connection
established between that wetland and the lake.
That is why the Riverside court goes into such detail
talking about aquatic ecosystems and integrated approaches to
dealing with water quality. It was an ecological approach that
the Supreme Court used in Riverside. That is why the Court used
the term significant nexus, not adjacency, not abutting, not
open water. They were talking about what is the significant
nexus between the area to be regulated and navigable waters.
I fully agree the agencies are way behind in issuing
guidance on what that term significant nexus means. That is
where the focus ought to be. It ought to be on a scientifically
sound methodology to determine in what circumstances do
isolated wetlands have a significant nexus to navigable waters
without regard to proximity. That is an irrelevancy in science.
The question is, what function are these water bodies
performing, and do those functions relate to the quality of
navigable waters, not just quantity but quality of navigable
waters?
That is where the inquiry ought to be, not on some phoney
rulemaking about what lower courts are ruling in the wake of
SWANCC. That is not going to get us anywhere.
Mr. Ose. Mr. Guzy, in your interpretation, this comment
included in the Supreme Court's decision, how does this affect
the jurisdiction of the Corps and EPA?
Mr. Guzy. I have actually sort of studiously refrained in
my testimony so far from criticizing the SWANCC decision
itself, because I do believe that for agencies who have to
interpret it, it is the rule of the land but it is not all that
exists. It doesn't exist in isolation.
Mr. Ose. Would you define that?
Mr. Guzy. It exists along with the other body of precedent
including Riverside Bayview Homes. To me the language you just
read actually is one place that illustrates the internal
confusion in the decision itself. The analysis that the Chief
Justice is talking about doesn't necessarily go only to open
waters, the phrase that he uses, but rather when you go back to
the language of the statute to waters of the United States and
navigable waters of the United States, which may be other than
open waters. They may, in fact, be a variety of things,
tributaries, wetlands, a variety of things but not necessarily
open waters. That is why I found this particular quotation
interesting that you would choose it, because it really does
illustrate the internal confusion and inconsistency in the
decision itself.
The consequence of this holding, if you were to read it the
way that you and Professor Parenteau suggest, is not limited
under the structure of the Clean Water Act merely to 404
wetlands determinations. The act treats discharges under 402,
which is the industrial effluent discharge section, and under
the Oil Pollution Act provisions the same way in terms of the
initial jurisdictional threshold of navigable waters of the
United States.
That is why the consequence of a ruling that extreme could
in fact be so severe, because not only would you be talking
about the ability unregulated in a Federal manner to place fill
into wetlands, you also potentially could be talking about the
ability to discharge poisons such as arsenic, to discharge
things such as oil contamination in a way that could have
fundamental effects upon downstream neighbors. That is an
enormous concern.
Mr. Ose. Mr. Smethurst? The question is whether or not this
citation in the Supreme Court decision affects in your
interpretation the jurisdiction of the Corps and EPA having to
do with ponds and not adjacent to open water?
Mr. Smethurst. I think, viewed in light of the legislative
history and looking to the regulations the Corps promulgated in
1974 and even revised in the aftermath of the Calloway case in
1975, as the Supreme Court has noted, they are different. A
wetland is not a water body. It has been brought in under the
definition of waters of the United States from a regulatory
standpoint, but you will not find any discussion of wetlands in
the legislative history. In fact, in the original 1974
regulations, wetlands were not even regulated. They were merely
a factor that the Corps was admonished to consider when making
a permit decision under 404.
Mr. Ose. Are you saying that these things have been
manufactured?
Mr. Smethurst. Have been what?
Mr. Ose. Have been manufactured from a regulatory
standpoint?
Mr. Smethurst. From my experience, absolutely. Initially
following the 1972 act, you didn't see much of a change. I have
been dealing with this since 1972 and litigating cases since
1972. Most of them don't get to the level they are now. It
wasn't, for instance, until 1985 approximately that you saw any
assertion or any mention of the term wetland beyond marshes,
swamps, and things like that.
The initial term that was applied when the Corps began to
reach inland to things like what I call an isolated wetland
isn't a pond, it is a forested wetland, it may not even have
trees on it, may be a low area in the ground that has the
requisite hydric soils and the hydrophitic vegetation. It may
not actually look like a swamp but that is what was called in
those days an upland wetland. You won't find that in any
regulation, but that is what it was being called by the Corps
of Engineer field people. That didn't happen until 1985.
Originally, if you go back and look, the concern of
Congress, to the extent you can find any in the legislative
history over wetlands, had to do with basically tidal marshes,
estuaries, shallows, and things like that. In fact, Muskie, if
I am not mistaken both at the time of the 1972 legislation and
again as late as the 1977 amendments came out, was assuring
other Members of Congress that this only applied to marshes,
bogs, tidal flats, and things like that, and would not apply to
inland wetlands.
The biggest problem these days is not with respect to your
marshes, tidal flats, and so forth. It is the kind of property
you see in the Deaton case, which I couldn't show you too well.
It is nothing more than woods in which in the dead of winter,
the soils are damp. You don't need to wear galoshes to walk
around that property. That now meets the Corps' definition of a
wetland. There is no water on it unless it is raining, but it
meets the Corps' definition of a wetland. This is where things
have sort of gotten out of control from a pure statutory,
application standpoint.
Mr. Ose. Statutory or regulatory?
Mr. Smethurst. Both.
Mr. Ose. I am not aware of any amendments to the Clean
Water Act that would have attempted to define wetland or
adjacency, open water.
Mr. Smethurst. The Supreme Court in Riverside said
essentially as a result of the 1977 amendments, Congress was
deemed to have acquiesced in the Corps assertion of
jurisdiction over certain wetlands. Those are basically the
ones that immediately adjoin a water body where the Court said
it is difficult to determine, from a practical standpoint, very
understandably, where does the water end and the land begin.
If you go around the Chesapeake Bay and see where you have
marshes adjoining actual open water, this is the kind of thing
they were talking about. Those kinds of wetlands are clearly as
a result of Riverside, Bayview jurisdictional.
Mr. Ose. Ms. Marzulla.
Ms. Marzulla. I will continue along the vein that Mr.
Smethurst was giving in his opinion. To answer your question
directly, I read this language from SWANCC to send a very
strong signal to the Corps and the EPA that their authority
over isolated wetlands is limited, if not nonexistent. I recall
that SWANCC is a statutory construction case. There the Court
is asked to test the regulation, the assertion of jurisdiction
against the statute. It is the language of the statute that
governs the conclusion that the Court is supposed to reach. The
Court can resort to legislative history only if the language is
so vague, so ambiguous that they can't tell what the language
means. Obviously, the Court felt that it did have to go back to
legislative history. Finding that unhelpful, it made its best
guess as to what navigable meant.
I would respectfully suggest, however, that the reason why
courts are in confusion over wetland interpretation, why
landowners are confused about what they can do, what they can't
do, when they are going to be subject to million dollar civil
penalties as the landowner in the Borden ranch case which now
is before the Supreme Court had slapped on him, when they might
be subject to criminal sanctions for violating wetland rules,
is because the agencies have been making up wetland regulations
for years. Congress has left the agencies basically to make it
up as they go and because courts have rules that require them
to defer to agency rulemaking, there has been no judicial check
on agency rulemaking. The only check we have is Congress. We
need your help, your involvement, because these agencies need
very clear guidance to make sure they are doing what you want
them to do.
Mr. Ose. Mr. Hopper, same question.
Mr. Hopper. This language is the bright line rule that we
are always looking for but seldom see in a court opinion. It
clearly restricts, confines the jurisdiction of the Corps to
traditional navigable waters and those that are immediately
adjacent. There has been some suggestion that this cannot be
read in isolation, that we need to go back and look at
Riverside Bayview. But the court did that for us and told us
quite explicitly what the court had held and what the court had
not held, saying that in United States v. Riverside Bayview, we
held that the Court had 404 jurisdiction over wetlands that
actually abutted on a navigable waterway. That is what the
Court held. Then it said, ``Indeed in that case 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.'' That is what
the court did not hold in Riverside Bayview.
The reason for mentioning it is because the Court intended
to answer it and in SWANCC it did so with that language you
previously read: ``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''--notice they
didn't use the word isolated--``but we conclude that the text
of the statute will not allow this.''
Mr. Ose. Ms. Albrecht.
Ms. Albrecht. I concur. I would like to also point out what
was at stake in Riverside Bayview. I happen to have here the
Government's brief in Riverside Bayview. This is how they
describe those adjacent wetlands. They said, ``There is direct,
unimpeded access from the mid-east boundary of Riverside's
property to additional marshes and the open waters of Black
Creek, a navigable water of the United States. Indeed, it would
not be an exaggeration to state that one could, after wading
through a cattail marsh, swim directly from Riverside's
property into the Great Lakes.'' That was the wetland that was
described as adjacent and was held in Riverside Bayview to be
jurisdictional. You could swim from the wetland to the Great
Lakes. I think that is a very important issue.
Mr. Ose. A person or a fish?
Ms. Albrecht. I am not sure if it was a person. However, at
oral argument, the Government lawyer said, ``This is, in fact,
an adjacent wetland, by adjacent I mean it is immediately next
to, abuts, adjoins, borders, whatever other adjective you might
want to use, navigable waters of the United States.'' This is
what the Supreme Court in SWANCC was relying on, and I think
the passage you are asking us about is an indication of the
Supreme Court saying, ``yes, we stand by our decision in
Riverside Bayview in which we held that adjacent wetlands,
meaning wetlands that are actually abutting a navigable
waterway, are jurisdictional, but other waters that are not
adjacent in that sense of the word, not actually abutting, are
not jurisdictional because of the text of the statute,
navigable waters will not allow it.''
Mr. Ose. Here is the difficulty I have. I have a two
o'clock hearing coming behind me and I have to clear out of
here no later than 1:40 p.m. I have about 3,000 more questions
for you all but we are not going to get them all done. With
your cooperation, we will submit to you these questions in
writing and we would appreciate a timely response, meaning very
soon.
I do have an additional question I want to ask you. Given
what may be accurately described as ambiguity in some of these
issues, my good friend from Minnesota is attempting to remove
the ambiguity from this issue by proposing an amendment to the
Clean Water Act that will remove the word navigable from
Section 404, thereby eliminating questions to whether or not
congressional intent was that everything should be
jurisdictional.
I don't want to prejudge that, but I would be curious about
your position on Mr. Oberstar's proposal to effectively make
every body of water jurisdictional to the Corps' effort. Ms.
Albrecht.
Ms. Albrecht. I think before you went to that you would
want to look at what the States are doing. And, a lot of States
are regulating wetlands and have programs that address
wetlands. I do a lot of work in California and Florida, two of
the biggest development States. I do believe if the Corps of
Engineers and EPA did not have a permitting program there, the
wetlands in California and Florida would be subject to the same
strong protections. So I am doubtful that you need that strong
Federal involvement to overwhelm the States. I would like the
Federal Government to consider and I think one of the reasons
you want a rulemaking is to draw a line so that the States will
know where the Federal Government is not going to be regulating
and then the States can make a determination.
The other thing I would say, and there are some examples in
my attachments, the Federal Government has been regulating as
tributaries hillside gullies, little rivulets that are one foot
wide and forty feet long. Under no stretch of the imagination
do those demand Federal regulation as important aquatic
resources.
Mr. Ose. If I understand your response, you do not support
Mr. Oberstar's proposal to amend the Clean Water Act to remove
the word navigable from the writing thereof?
Ms. Albrecht. You are right.
Mr. Ose. Professor.
Mr. Parenteau. I do support it. The States are doing a fine
job. One-third of the States have some legislation to address
this problem, two-thirds do not. The problem is that without a
floor of protection across the country provided by the Federal
Government, we are going to lose substantial numbers of these
wetlands. Maybe we will lose them because States don't have the
capability to address and regulate them, maybe in some cases
the States don't want to do that. Who knows. The point is,
there is room for both Federal and State involvement in this
program. There has been from day one. Some of the States have
taken advantage of that, some have not. The ones that have
taken advantage of it are supporting Federal jurisdiction over
the remainder so that their efforts are not frustrated, and so
that they are not economically disadvantaged by regulating
development of wetlands when their sister States do not and
attract away businesses to them on that basis. That is the
principal, central reason you need national legislation when
you are dealing with nationally important resources, which
these clearly are.
The reason the current navigable restriction ought to be
removed is why we are here today. It is a vexing, distracting,
ultimately unsatisfying inquiry as to what in the world it
means. That is not what we are talking about. What we are
talking about is the chemical, physical, biological integrity
of the Nation's waters, the aquatic ecosystem and all the
important things that wetlands do to serve that. So we need
legislation.
Mr. Ose. So you support Mr. Oberstar's proposed amendment?
Mr. Parenteau. Yes.
Mr. Ose. Mr. Hopper.
Mr. Hopper. I oppose it. That word navigable is probably
the only word that keeps that statute constitutionally valid.
The Court in SWANCC established a three-part test. I think if
you compare what you are saying might be proposed with the
three-part test expressing the concerns of the court in SWANCC,
it would fail.
First of all, the Court already indicated in SWANCC that
the assertion of Corps jurisdiction over these non-adjacent
ponds pushed the very limits of congressional authority,
meaning it raised serious Commerce Clause concerns.
Second, the Court was concerned about federalism;
specifically that there was undue impingement by the Federal
Government into the State's power to control land and water
use. Under the 404 program, the Corps and the EPA have veto
power over local land use projects that affect jurisdictional
waters. There can be no greater impingement. It would be more
so under the proposed amendment.
Third, the current objective expressly stated in the act is
to protect the States' power to control local land and water
use. If this amendment were to pass, the objective of the
statute would have to change. For the worse, I believe.
Mr. Ose. So you would oppose Mr. Oberstar's amendment?
Mr. Hopper. Yes, absolutely.
Mr. Ose. Mr. Guzy.
Mr. Guzy. In addition to the reasons already stated, I
would identify for you four reasons why I would suggest you and
the rest of the subcommittee and the committee support Mr.
Oberstar's effort.
First, certainty is always a good thing. We have heard a
call for certainty from the regulated community. There
apparently is some confusion among those out in the field and
the agencies who are charged with applying this law, so giving
them clarity would certainly be beneficial.
Second, much of what we have talked about today when you
get right down to it has been something of a fiction that is a
relic from how this law has developed. It is a fiction because
as the science has developed, it has shown that isolated
wetlands just really don't exist in actuality in ecosystems.
They have in almost every instance some kind of connection to a
greater ecosystem and to the kinds of things which the Clean
Water Act is designed to protect, so this would modernize the
Clean Water Act much the same way that Congress modernized the
Safe Drinking Water Act in the 1990's when it recognized you
want to look at the source of pollution as much as you want to
protect the finished drinking water product.
Third, it would modernize it to address pollution, not just
navigability.
Last, in addition to your friend Mr. Oberstar, I would
point out, I think it is telling that your friend from
Michigan, Mr. Dingell, is also a sponsor of that bill. He
managed the 1972 amendments on the floor and he has said in his
statements upon introduction of their bill that he wants to
take this to get back to what that Congress' original intent
was and that SWANCC has unfortunately taken us off that path.
For all those reasons, I think it is a very sound approach.
Mr. Ose. Ms. Marzulla.
Ms. Marzulla. I oppose it, and my suggestion is that it
would take the ambiguity from one word and put it on another.
Again, if Congress wants to protect dry dirt and isolated
prairie dustballs as wetland, then fine, Congress can do so. My
suggestion is that Congress pass a wetland protection law, and
let us have our fight out there, but leave the Clean Water Act
to its purpose, to prohibit the discharge of a pollutant into
the waters of the United States. It was never designed to be a
wetland protection law, that is why we are in this mess in the
first place.
Mr. Ose. Mr. Smethurst.
Mr. Smethurst. Two points. One, as currently drafted, I am
not sure it would be wise to see the Federal Government become
so intrusive in the lives of almost each and every citizen,
because basically under that definition, as I read it, once
that water leaves the down spout of your house, it is Federal
water.
Two, I know the Corps of Engineers does not have the
resources to administer that kind of jurisdiction. They don't
have the resources today to administer this ever continuing,
expanding jurisdiction they assert.
I heard the statement in here that 90 percent of the
permits are approved. What they don't tell you is how many
permit applications either aren't made because people cannot
afford it or are withdrawn because they get hassled so long and
harassed so long and delayed so long. Part of the reason even
where there is no hassling and no intentional delay is simply
because the Corps does not have the money to have the people in
the field to take care of these cases. It is almost like social
workers who have too darned many cases to deal with and they
can't deal adequately with the cases that are assigned to them.
Those are my reasons. So go slow is what I am saying.
Mr. Ose. For the reasons enunciated by each of you,
Professor, you support putting all the waters wherever they may
be under the jurisdiction of the Corps?
Mr. Parenteau. Assuming there is a scientifically valid
methodology that identifies those areas that belong in the
system, yes.
Mr. Ose. Mr. Guzy, you support it. Mr. Smethurst, you are
skeptical at the least.
Mr. Smethurst. Very skeptical.
Mr. Ose. Ms. Marzulla, you are definitely skeptical, if not
in outright opposition. Mr. Hopper, you oppose. Ms. Albrecht,
you oppose. OK. I have a clear understanding of where you all
stand on that.
It is 1:41 p.m. and I want to express my appreciation to
each of you for your patience today, given the votes. I do
appreciate your rather remarkable attempts to educate me today.
Most of it sank in, and I am grateful for your taking the time.
Someday I might even be a student. Thank you for coming. We
will be sending you questions. We would appreciate a timely
response.
With that, we will adjourn.
[Whereupon, at 1:41 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
[The prepared statement of Hon. John F. Tierney and
additional information submitted for the hearing record
follows:]
[GRAPHIC] [TIFF OMITTED] T8327.114
[GRAPHIC] [TIFF OMITTED] T8327.115
[GRAPHIC] [TIFF OMITTED] T8327.116
[GRAPHIC] [TIFF OMITTED] T8327.119
[GRAPHIC] [TIFF OMITTED] T8327.120
[GRAPHIC] [TIFF OMITTED] T8327.121
[GRAPHIC] [TIFF OMITTED] T8327.152
[GRAPHIC] [TIFF OMITTED] T8327.153
[GRAPHIC] [TIFF OMITTED] T8327.154
[GRAPHIC] [TIFF OMITTED] T8327.155
[GRAPHIC] [TIFF OMITTED] T8327.156
[GRAPHIC] [TIFF OMITTED] T8327.122
[GRAPHIC] [TIFF OMITTED] T8327.123
[GRAPHIC] [TIFF OMITTED] T8327.124
[GRAPHIC] [TIFF OMITTED] T8327.157
[GRAPHIC] [TIFF OMITTED] T8327.158
[GRAPHIC] [TIFF OMITTED] T8327.125
[GRAPHIC] [TIFF OMITTED] T8327.126
[GRAPHIC] [TIFF OMITTED] T8327.127
[GRAPHIC] [TIFF OMITTED] T8327.128
[GRAPHIC] [TIFF OMITTED] T8327.129
[GRAPHIC] [TIFF OMITTED] T8327.130
[GRAPHIC] [TIFF OMITTED] T8327.131
[GRAPHIC] [TIFF OMITTED] T8327.132
[GRAPHIC] [TIFF OMITTED] T8327.133
[GRAPHIC] [TIFF OMITTED] T8327.134
[GRAPHIC] [TIFF OMITTED] T8327.135
[GRAPHIC] [TIFF OMITTED] T8327.136
[GRAPHIC] [TIFF OMITTED] T8327.137
[GRAPHIC] [TIFF OMITTED] T8327.138
[GRAPHIC] [TIFF OMITTED] T8327.139
[GRAPHIC] [TIFF OMITTED] T8327.140
[GRAPHIC] [TIFF OMITTED] T8327.141
[GRAPHIC] [TIFF OMITTED] T8327.142
[GRAPHIC] [TIFF OMITTED] T8327.143
[GRAPHIC] [TIFF OMITTED] T8327.144
[GRAPHIC] [TIFF OMITTED] T8327.145
[GRAPHIC] [TIFF OMITTED] T8327.146
[GRAPHIC] [TIFF OMITTED] T8327.147
[GRAPHIC] [TIFF OMITTED] T8327.148
[GRAPHIC] [TIFF OMITTED] T8327.149
[GRAPHIC] [TIFF OMITTED] T8327.150
[GRAPHIC] [TIFF OMITTED] T8327.151