[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]




              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
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                     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:]

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    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:]

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    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:]

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    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:]

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    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:]

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    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:]

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    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:]

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    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:]

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    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:]

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    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:]

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    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:]

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