[Senate Hearing 108-352]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-352

                    SWANCC SUPREME COURT DECISION: 
                     IMPACT ON WETLANDS REGULATIONS

=======================================================================

                                HEARING

                               before the

                      SUBCOMMITTEE ON FISHERIES, 
                          WILDLIFE, AND WATER

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION


 TO RECEIVE TESTIMONY ON FEDERAL REGULATION OF WETLANDS FOLLOWING THE 
    SUPREME COURT'S DECISION IN THE CASE OF ``SOLID WASTE AGENCY OF 
  NORTHERN COOK COUNTY V. THE U.S. ARMY CORPS OF ENGINEERS'' (SWANCC)


                               __________

                             JUNE 10, 2003


                               __________


  Printed for the use of the Committee on Environment and Public Works



92-375              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001


               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                      one hundred eighth congress
                             first session

                  JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia             JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri        MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio            HARRY REID, Nevada
MICHAEL D. CRAPO, Idaho              BOB GRAHAM, Florida
LINCOLN CHAFEE, Rhode Island         JOSEPH I. LIEBERMAN, Connecticut
JOHN CORNYN, Texas                   BARBARA BOXER, California
LISA MURKOWSKI, Alaska               RON WYDEN, Oregon
CRAIG THOMAS, Wyoming                THOMAS R. CARPER, Delaware
WAYNE ALLARD, Colorado               HILLARY RODHAM CLINTON, New York

                Andrew Wheeler, Majority Staff Director
                 Ken Connolly, Minority Staff Director
                                 ------                                

             Subcommittee on Fisheries, Wildlife, and Water

                   MICHAEL D. CRAPO, Idaho, Chairman
JOHN W. WARNER, Virginia             BOB GRAHAM, Florida
LISA MURKOWSKI, Alaska               MAX BAUCUS, Montana
CRAIG THOMAS, Wyoming                RON WYDEN, Oregon
WAYNE ALLARD, Colorado               HILLARY RODHAM CLINTON, New York

                                  (ii)

  
                            C O N T E N T S

                              ----------                              
                                                                   Page

                             JUNE 10, 2003
                           OPENING STATEMENTS

Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New 
  York...........................................................    33
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....     1
Graham, Hon. Bob, U.S. Senator from the State of Florida.........   117
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...    10
Jeffords, Hon. James M., U.S. Senator from the State of Vermont..     3
    Comments by State Governments on SWANCC......................     6
    Letters:
        Lake Champlain...........................................    24
        ASIWPCA..................................................     4
Lieberman, Hon. Joseph I., U.S. Senator from the State of 
  Connecticut....................................................   115
Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska......    31
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......    11

                               WITNESSES

Bogert, L. Michael, counsel, Governor of Idaho Dirk Kempthorne...   104
    Letter, to EPA, from Governor Kempthorne.....................   131
    Prepared statement...........................................   129
    Responses to additional questions from Senator Jeffords......   135
    Text of Idaho House Bill 284................................138-146
Dunlop, Hon. George, Deputy Assistant Secretary for Civil Works, 
  U.S. Department of the Army....................................    17
Feingold, Hon. Russell D., U.S Senator from the State of 
  Wisconsin......................................................    11
    Prepared statement...........................................   118
Hamann, Richard, associate in law, University of Florida.........   107
    Prepared statement...........................................   146
    Responses to additional questions from Senator Graham........   149
Mehan, Hon. G. Tracy, Assistant Administrator for Water, U.S. 
  Environmental Protection Agency................................    15
    Prepared statement...........................................   120
Pierce, Robert J., president, Wetlands Science Applications, Inc.   110
    Prepared statement...........................................   153
    Report, Technical Principles Related to Establishing Limits 
      of Jurisdiction for Section 404 of the Clean Water Act....196-271
    Responses to additional questions from Senator Jeffords......   192
Sansonetti, Hon. Thomas L., Assistant Attorney General for 
  Environment and Natural Resources, U.S. Department of Justice..    19
    Prepared statement...........................................   124
    Responses to additional questions from:
        Senator Inhofe...........................................   127
        Senator Jeffords.........................................   128
Yaich, Scott, director of conservation programs, Ducks Unlimited.   109
    Prepared statement...........................................   271
    Responses to additional questions from Senator Jeffords......   275

                          ADDITIONAL MATERIAL

Letter, Rulemaking on definition of ``clean water,'' Governor 
  Dirk Kempthorne................................................   131
Reports:
    EPA Compliance Issues, Office of the Inspector General....... 37-99
    National Wildlife Federation and Natural Resources Defense 
      Council...................................................283-302
Statements:
    American Farm Bureau Federation..............................   279
    Wildlife Management Institute................................   302
    Wisconsin Department of Natural Resources....................   281

 
                    SWANCC SUPREME COURT DECISION: 
                     IMPACT ON WETLANDS REGULATIONS

                              ----------                              


                         TUESDAY, JUNE 10, 2003

                                       U.S. Senate,
          Subcommittee on Fisheries, Wildlife, and Water,  
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 o'clock 
a.m. in room 406, Senate Dirksen Building, Hon. Michael D. 
Crapo [chairman of the subcommittee] presiding.
    Present: Senators Crapo, Murkowski, Thomas, Inhofe [ex 
officio] and Jeffords [ex officio].

 OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM 
                       THE STATE OF IDAHO

    Senator Crapo. The hearing will come to order.
    Good morning and welcome to the hearing of the Fisheries, 
Wildlife and Water Subcommittee. Today, we will be receiving 
testimony on the wetlands regulation and issues raised by the 
Supreme Court's SWANCC decision.
    In January, 2001, the Supreme Court overturned an Agency 
interpretation that took broad jurisdictional views of section 
404 of the Clean Water Act. In ruling that the Corps and the 
EPA no longer had jurisdiction over isolated intrastate waters, 
the Court fundamentally changed section 404 wetlands regulatory 
programs.
    Developers and others in the regulated community often 
complain about the Corps' red tape, but the same bureau seems 
to be about as efficient at protecting wetlands as it is at 
expediting permits. Some of the things that the environmental 
community has said about the section 404 wetlands provisions 
are anything less than laudatory.
    In the Clean Water Act, Congress expressed a clear choice 
to recognize, preserve and protect the primary responsibilities 
of the States to plan the development and use of land and water 
resources. As a former State water law attorney, I could not 
agree more strongly. While I believe that the broad 
jurisdictional view stated is inappropriate and found unlawful 
in SWANCC, I am going to temporarily set aside those concerns 
today, and I would like to focus my comments on the Corps of 
Engineers and their implementation of the section 404 program.
    The Corps' regulatory budget is about $150 million a year. 
Compare this with the Agency's total budget of $4.6 billion. 
There are approximately 1,450 full-time employees in the 
regulatory program. There are more than 100 million acres of 
wetlands in the lower 48 States. If Corps employees did nothing 
but monitor those wetlands, they would each supervise 69,000 
acres apiece.
    One could argue that the budget and resources that Congress 
gives the Corps' regulatory program is a reliable indicator of 
congressional intent, particularly with regard to the scope of 
the program. Given the structure, level and funding of 
personnel resources provided for the 404 program, it is not 
particularly surprising that the 404 program has not been more 
effective in conserving our Nation's wetlands. In addition, the 
Corps was not created nor has it evolved as a regulatory 
agency. Fundamentally, the Corps of Engineers is just that--an 
engineering agency. Given its history, organization, and 
available resources, it is unlikely that the Corps will ever be 
capable of regulating, effectively or otherwise, all of the 
waters of the United States that could affect commerce.
    The benchmark discussion about the Corps' jurisdiction 
should not begin with the sweeping jurisdiction bestowed upon 
itself with the Migratory Bird Rule, but it needs to begin with 
the clear and unambiguous criteria that are commensurate with 
both the Federal resources and the Federal interest to ensure 
that the Corps' resources are targeted toward those waters 
which are the most important to the Federal Government.
    It is also important to point out that the Clean Water Act 
is not the only Federal law standing between wetlands and 
destruction. There are numerous other Federal programs related 
to wetlands. For example, SWANCC did not affect the Federal 
Government's commitment to wetlands protection through the Food 
Security Act Swampbuster requirements, the Conservation Reserve 
Program, the Wetlands Reserve Program, the Partners in Wildlife 
Program, the Coastal Wetlands Restoration Program, the Five 
Star Restoration Program, the National Estuary Program, and 
programs under the Migratory Bird Conservation Act.
    Clear rules on Federal jurisdiction under Section 404 are 
also important to ensure that these other Federal programs can 
properly prioritize their resources. For example, the 
Agriculture Department's Wetlands Reserve Program, reauthorized 
by the farm bill, is expected to enroll 250,000 acres this 
year. In order to ensure that programs such as the Wetlands 
Reserve Program maximize environmental benefits, they should be 
designed to be complementary with the 404 program.
    Until other Federal agencies understand the scope of 
jurisdiction under the 404 program, it is going to be difficult 
if not impossible to effectively prioritize these other 
programs to ensure maximum wetland protection. The current 
situation has created confusion and chaos, not only for the 
regulated community, but also for the States. States have a 
principal role to play in environmental protection. As the 
Supreme Court noted in the SWANCC decision, granting the Corps 
and EPA such sweeping jurisdiction would result in a 
significant impingement of the States' traditional and primary 
power over land and water use. At the time of the decision, 
many States already had robust wetland protection programs. 
Since then, several other States, notably Ohio and Wisconsin, 
have also passed legislation to address isolated waters in 
light of the SWANCC decision.
    It is important to note that the confusion that has 
festered for the last 2 years is not only detrimental to 
individuals in the regulated community, it is also detrimental 
to the environment. The longer that the jurisdiction of the 
Corps remains vague and unresolved, the more likely it is that 
truly valuable wetlands will elude the protection of all the 
Federal and State programs designed to protect them.
    The key purpose of this hearing is to evaluate what we are 
doing about wetlands protection and how this Congress should 
respond to setting the regime in place so that we have an 
effective Federal approach to protecting wetlands, while still 
respecting States' rights.
    With that, let me turn to our ranking member.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Senator Jeffords. Thank you. Good morning, everyone, and 
thank you for being here. Thank you, Senator Crapo, for holding 
this hearing this morning. I would also like to welcome Senator 
Feingold, who has been a strong supporter of the Clean Water 
Act.
    The Supreme Court's decision in the SWANCC case has caused 
a great deal of confusion and concern. It has many people 
questioning the intent of Congress when we first passed the 
Clean Water Act more than 30 years ago. Although I was not here 
in 1972, I had been here during subsequent consideration of the 
Clean Water Act legislation. I do not believe that we have ever 
wanted to protect less of our Nation's waters. However, this 
decision does just that. It reduces the protection of isolated 
wetlands under the Clean Water Act.
    We are here today to hear varying opinions about the 
ramifications of the SWANCC decision on the Nation's waterways. 
Some, like Senator Feingold and myself, believe that the 
definition of ``water'' in the Clean Water Act should be 
changed to make clear the intent of Congress that all waters of 
the U.S. should be protected. Others feel changes to existing 
regulations are necessary, and some believe nothing needs to be 
done in light of the SWANCC decision.
    The Administration is pursuing a regulatory solution to the 
implications of the SWANCC decision. I have serious concerns 
about EPA and the Corps' guidance and advance notice of 
proposed rulemaking, and the effect they will have on the 
protection of waters throughout the United States from 
pollution.
    I look forward to hearing from each of our witnesses today 
on the implications of the SWANCC decision. I am compelled, Mr. 
Chairman, to bring up the recent troubling news regarding EPA's 
Clean Water Act Enforcement Program. Two recent articles in the 
New York Times and the Washington Post document extensive 
noncompliance with discharge permits, a dramatic decline in 
enforcement, and an apparent lack of commitment to modernizing 
the data control system used to verify permit compliance. I ask 
unanimous consent that these articles be inserted in the 
record.
    Senator Crapo. Without objection.
    [The referenced document follows:]

    
    
    Senator Jeffords. I hope that the EPA is taking this issue 
seriously, and I look forward to hearing your plans to 
strengthening the enforcement. It is imperative that we do not 
allow the Clean Water Act to become, or perhaps to remain, a 
license to pollute. I have several documents that I would like 
to ask unanimous consent to submit for the record, including a 
statement from Senator Lieberman, a statement from Senator 
Gramm, and a statement from the Association of State Water 
Pollution Control Administrators.
    Senator Crapo. Without objection.
    Senator Jeffords. I would also like to submit excerpts of 
comments by several States on the advance notice of proposed 
rulemaking to the committee record.
    Senator Crapo. Without objection.
    [The referenced document follows:]

    
    
    Senator Jeffords. Interestingly, a majority of the States 
represented by Senators on this committee have commented in 
opposition to the scope of the ANPRM.
    Senator Crapo, I want to thank you for holding this hearing 
and look forward to listening to the witnesses and working with 
you.
    Senator Crapo. Thank you very much.
    Next, we will turn to our full committee Chairman, Senator 
Inhofe.

 OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM 
                     THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Mr. Chairman. I appreciate very 
much your holding this hearing.
    Nearly 2 \1/2\ years ago the Supreme Court ruled that the 
Corps and the EPA had exceeded their authority under the Clean 
Water Act. Up until this case, the Agencies had assumed that 
the Clean Water Act had granted them jurisdiction over 
virtually all waters potentially affecting commerce in the 
Nation. The Supreme Court rejected that claim in the SWANCC 
case.
    Rather than expand Corps and EPA jurisdiction to the very 
ends of the Commerce Clause, the Court chose to read the 
statute as it was written. Consequently, the Corps and the EPA 
have jurisdiction over navigable waters and waters that at are, 
quote, ``inseparably bound up with navigable waters.'' Whether 
one agrees or disagrees with the Supreme Court's decision, the 
fact remains that it could significantly change the 
jurisdiction of the Corps to regulate isolated waters.
    On the last day of the Clinton Administration, the Corps 
and the EPA issued a joint memorandum to their regional 
offices. While this memo was swiftly issued, it appears to have 
done little to clarify Federal jurisdiction in light of the 
SWANCC decision. Consequently, Federal jurisdiction over waters 
should be considered on a case-by-case basis in consultation 
with legal counsel, the Order read. This case-by-case approach 
resulted in widely varying interpretations of the scope and 
jurisdiction by Corps and EPA field offices. Not only is there 
no consistent definition of what ``isolated,'' ``adjacent,'' or 
``tributary'' mean, there are also huge disparities in what 
type of information or criteria are used for determining 
jurisdiction. Some offices use maps; some use aerial 
photography; while others conduct site visits. The guidance 
issued by the Agencies last January, like the earlier Clinton 
Administration guidance, did little to clear up the quagmire of 
nebulous regulations. By providing no detailed or definitive 
criteria for field staff, Corps and EPA headquarters have 
simply perpetuated the already intolerable level of confusion 
in the 404 Program.
    The fact that 2\1/2\ years after the Supreme Court 
decision, the Agencies still have not proposed any changes to 
the regulations is disturbing on two counts: first, that the 
American public has been subjected to an arbitrary and 
inconsistent regulatory policy; and second, it casts doubt on 
the ability of the Corps and the EPA to prioritize their scarce 
resources in order to maximize protection of the environment. I 
think, Mr. Chairman, in your opening statement, you talked 
about the staffing problems that are there and the fact that 
the capacity just isn't there.
    From their prepared testimony, it appears that the Agencies 
at least recognize there is a problem. I just hope that they 
follow through with their pledge of responsible stewardship to 
ensure that Federal programs effectively and consistently 
maintain environmental protection.
    Senator Crapo. Thank you very much, Mr. Chairman.
    Senator Thomas?

 OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE 
                        STATE OF WYOMING

    Senator Thomas. Thank you, Mr. Chairman. I agree with what 
you said and what has been said here.
    I certainly thank you for having this hearing and I want to 
particularly welcome my friend, the Assistant Attorney General 
Tom Sansonetti, whom we have worked with in Wyoming for years.
    Since the Corps and the EPA have agreed to issue additional 
clarifying guidance and rulemaking definitions, much confusion 
has apparently existed and continues to exist. It is 
impossible, it seems to me, for State and local governments, as 
well as regulated communities, to comply with the law with this 
level of uncertainty. So hopefully we can have some 
clarification to it.
    In my opinion, rather than Agencies defining this is such a 
manner as to result in another barrage of legal challenges, 
resources could better be spent supporting our State efforts. 
In my State of Wyoming, the Department of Environmental 
Quality, the statutes and rules do include wetlands as surface 
water of the State. We believe the State can oversee and 
provide protection, and look forward to improving Federal-State 
cooperation and coordination.
    I thank you, sir.
    Senator Crapo. Thank you very much, Senator Thomas.
    We will now proceed to our first panel. Today we have three 
panels and a lot of witnesses. So I would encourage all of the 
witnesses to remember that we have a 5-minute rule. We want to 
save plenty of time for questions. I will try to remind you of 
that as we move along.
    Our first panel is one of our members, Senator Russ 
Feingold, who has some legislation that he wants to present to 
us and discuss today. Senator Feingold, go ahead please.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A UNITED STATES SENATOR 
                  FROM THE STATE OF WISCONSIN

    Senator Feingold. Thank you very, very much, Mr. Chairman. 
I thank you for the opportunity to appear before you today. I 
would like to acknowledge the very generous and forthright 
assistance provided to me as I sought an opportunity to testify 
before the subcommittee on this matter, by both the Chairman of 
the full committee, Senator Inhofe, who was very courteous, and 
of course, the ranking member, Senator Jeffords, who is a 
strong cosponsor of the legislation I have introduced to 
reaffirm Federal Clean Water Act jurisdiction, S. 473. Of 
course, I acknowledge the longstanding important leadership 
that Senator Jeffords has shown on so many of these issues. And 
I thank you, Mr. Chairman.
    I have a longer version of my statement I would like to ask 
to submit for the hearing record.
    Senator Crapo. Without objection.
    Senator Feingold. Mr. Chairman, this is a very important 
hearing. My experience as the lead sponsor of legislation on 
this issue in both the 107th and current Congress, I can say 
that the debate over whether our Federal law should continue to 
recognize the interconnected nature of our water systems is a 
growing national discussion. I can also say that I believe it 
is a debate that is unnecessary and is one that Congress should 
end. We need to be clear that Congress intends to erase any 
lingering ambiguity, to reconfirm the original intent of the 
Clean Water Act, and to protect our waters, rather than lose 
them. This hearing I think goes a long way to achieving that 
goal and I commend you, Mr. Chairman, for being willing to seek 
confirmation of the state of Federal law on this matter.
    In the U.S. Supreme Court's January, 2000 decision, Solid 
Waste Agency of Northern Cook County v. the Army Corps of 
Engineers, a five to four majority limited the authority of 
Federal agencies to use what was called the Migratory Bird Rule 
as the basis for asserting Clean Water Act jurisdiction over 
non-navigable intra-State isolated wetlands, streams, ponds and 
other bodies of water. This decision, which the committee knows 
as the SWANCC decision, means that the Environmental Protection 
Agency and the Army Corps of Engineers can no longer enforce 
Federal Clean Water Act protection mechanisms to protect 
wetlands solely on the basis that they are used as a habitat 
for migratory birds.
    In its discussion of the case, the Court went beyond the 
issue of the Migratory Bird Rule and questioned whether 
Congress actually intended the Clean Water Act to provide 
protection for isolated ponds, streams, wetlands and other 
waters, as it had been interpreted to provide for most of the 
last 30 years. While not the legal holding of the case, the 
Court's discussion, as many of you have pointed out, has 
resulted in a wide variety of interpretations by Federal, State 
and local officials that jeopardize protection for wetlands, 
streams and other waters.
    Within days of the SWANCC decision, constituents came to my 
town hall meeting asking for Congress to respond to this 
decision immediately. As was pointed out, Wisconsin became the 
first State to pass legislation to assume regulatory 
jurisdiction over wetlands left unprotected by the Supreme 
Court decision. Wisconsin has 15,000 named lakes and ponds, 5.3 
million acres of wetlands, and approximately 44,000 miles of 
streams. Wisconsin estimated that if SWANCC's holding limits 
jurisdiction over so-called ``isolated'' wetlands, more than 
1.1 million acres of wetlands in Wisconsin would no longer have 
Federal protection. Our State's legislation has become the 
model for several States.
    But the confusion over the interpretation of the SWANCC 
decision is growing, not I believe, because of the actual 
holding in the SWANCC case itself, but because of the manner in 
which Federal agencies are implementing the decision. On 
January 15, 2003, the EPA and the Corps published in the 
Federal Register an advance notice of proposed rulemaking 
raising questions about the jurisdiction of the Clean Water 
Act. Simultaneously, they released a guidance memo to their 
field staff regarding Clean Water Act jurisdiction. The 
agencies claim these actions are necessary because of the 
SWANCC case, but both the guidance memo and the proposed 
rulemaking go far beyond the holding in SWANCC.
    The guidance took effect right away and has had an 
immediate impact. It tells the Corps and the EPA staff to stop 
asserting jurisdiction over isolated waters without first 
obtaining permission from headquarters. Waters that the EPA and 
Corps staff judged to be outside the Clean Water Act, Mr. 
Chairman, can then be filled, dredged and polluted without a 
permit or any other longstanding Clean Water Act safeguard. The 
rulemaking announces the Administration's intention to consider 
even broader changes to Clean Water Act coverage for our 
waters. Specifically, the Agencies are questioning whether 
there is any basis for asserting Clean Water Act jurisdiction 
over additional waters, like intermittent streams. The 
possibility for a redefinition of our waters is troubling 
because there is only one definition of the term ``water'' in 
the Clean Water Act. So any change in the regulatory definition 
of ``water'' will affect the entire law--the Wetlands Program, 
the Point Source Program, which stops the dumping of pollution, 
and the non-point program governing pollution run-off--all 
depend on the same definition of ``water.''
    Even while EPA and the Corps consider whether to conduct a 
rulemaking to rewrite the definition of ``water,'' the U.S. 
Department of Justice is in Federal court defending the legal 
validity of the existing regulatory definition. Indeed, in 
recent briefs filed by the Justice Department, the 
Administration has argued forcefully that the broad definition 
of ``water'' in the current rules is not only valid, but that 
it is necessary in order for the goal of the Clean Water Act to 
be met, to make all of the Nation's waters safe for fishing, 
swimming and other uses.
    So Mr. Chairman, in my view, Congress decided this debate 
over the scope of the Clean Water Act in 1972, and the renewed 
debate should end now. Congress needs to reaffirm the 
longstanding understanding of the Clean Water Act's 
jurisdiction to protect all the waters of the United States. 
All my legislation does is that. It is very simple. It adopts a 
statutory definition of, quote, ``waters of the United 
States,'' unquote, based on the longstanding definition of 
``water'' in the EPA's and the Corps of Engineers' regulation. 
Second, it deletes the term ``navigable'' from the Act to 
clarify that Congress' primary concern in 1972 was to protect 
the Nation's waters from pollution, rather than just sustain 
the navigability of waterways and to reinforce that original 
intent.
    Finally, it includes a set of findings that explain the 
factual basis for Congress to assert its constitutional 
authority over streams, wetlands, ponds and other waters on all 
constitutional grounds, including the Commerce Clause, the 
Property Clause, the Treaty Clause, and the Necessary and 
Proper Clause.
    So Mr. Chairman, as the committee knows, I feel that 
Congress needs to reconfirm the Clean Water Act's jurisdiction 
to protect all waters of the United States. I believe the 
legislation I have introduced does no more and no less than 
that, and I hope this hearing will provide the committee with a 
good justification for moving that measure forward. I do thank 
you for your generous time and the opportunity to share my 
views and those of my State.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much, Senator Feingold. We 
appreciate your taking the time to present your legislation to 
the committee and your interest in this issue.
    Senator Jeffords?
    Senator Jeffords. As you mentioned in your statement, the 
State of Wisconsin passed a new wetlands law after the SWANCC 
decision. In fact, it was the first State to do so.
    If the waters discussed in the advance notice of proposed 
rulemaking were redefined out of Clean Water Act safeguards, 
what would that mean for wetlands, streams and small ponds in 
your State?
    Senator Feingold. As I indicated in my testimony, if you 
have this broader, sort of over-arching definition of 
``water,'' it could implicate far more bodies of water in 
Wisconsin than is simply covered by the law that we passed in 
Wisconsin to make sure that we still had the Migratory Bird 
Rule in effect. We believe it would endanger many, many 
important bodies of water in our State and we need the Federal 
definition to be broad and appropriate in terms of the 
traditional understanding of the Clean Water Act in order for 
our waters to be protected.
    Senator Jeffords. If it is covered by your State, would the 
waters be fully protected by your State law?
    Senator Feingold. As I like to kid around, the birds in 
Wisconsin are very smart, but they don't know where the State 
line is. So if they go down to Illinois or over to Minnesota 
and there isn't this kind of protection, obviously that is not 
how ecosystems work. And that is why I began my remarks by 
talking about the interconnectedness of water and waterways. 
This is what it is all about. We have a great environmental 
tradition in my State. I was proud that a Republican Governor 
of our State took the lead in saying, we are not going to go 
along with the SWANCC decision, but that is not enough to 
protect the waters of not only Wisconsin, but of the whole 
country.
    Senator Jeffords. So Federal action is incredibly 
important, as far as you are concerned?
    Senator Feingold. It is absolutely essential that this 
confusion, which all the committee members are aware of, be 
resolved. And it is absolutely essential that it not be 
resolved in a way that gets away from the classic and 
traditional understanding over 30 years that there is a 
significant and broad understanding of what ``water'' means so 
that we can get at isolated waters and other types of waters 
that have to be protected, as well as simply navigable waters.
    Senator Jeffords. Thank you very much.
    Senator Crapo. Senator Inhofe?
    Senator Inhofe. As usual, you are very articulate and 
succinct in the three things that your legislation does. I have 
no questions.
    Senator Crapo. Senator Thomas?
    Senator Thomas. I have no questions.
    Senator Crapo. Alright. Thank you, Senator Feingold.
    Senator Feingold. You are a very kind committee. Thank you 
very much.
    Senator Crapo. We appreciate your presenting your 
legislation to us. Thank you.
    Our second panel, and you may come up as I announce your 
names, is: Tracy Mehan, the Assistant Administrator for Water 
at the EPA; George Dunlop, Deputy Assistant Secretary for Civil 
Works, the Department of the Army; and Thomas Sansonetti, 
Assistant Attorney General for Environment and Natural 
Resources of the Department of Justice.
    Gentlemen, we appreciate your being here. Again, as I 
indicated at the outset, I would like you to try to pay close 
attention to the time limits that we have. We are going to have 
a lot of questions, I assume, today and we want to spend as 
much time as we can on them. We do have your written testimony. 
It has been reviewed. So we would ask you to summarize your 
testimony in the 5 minutes allotted to you.
    With that, let's begin with Mr. Mehan.

STATEMENT OF G. TRACY MEHAN, ASSISTANT ADMINISTRATOR FOR WATER, 
                ENVIRONMENTAL PROTECTION AGENCY

    Mr. Mehan. Good morning, Mr. Chairman and members of the 
subcommittee. I welcome the opportunity to present testimony to 
you today regarding the Clean Water Act jurisdictional issues 
over navigable waters.
    In keeping with your kind letter of invitation, my 
testimony will address issues associated with, I use the 
colloquial expression, the SWANCC case. The Environmental 
Protection Agency and the Army Corps of Engineers share 
responsibility for the Section 404 Program under the Clean 
Water Act which regulates the discharges of dredged and fill 
material. Testifying with me today will be George Dunlop to my 
left, Deputy Assistant Secretary of the Army for Policy and 
Legislation. As you indicated, we have submitted joint 
testimony which we would ask to be placed in the record, Mr. 
Chairman.
    Senator Crapo. Without objection.
    Mr. Mehan. In SWANCC, the Supreme Court held that the 
Federal Government had exceeded its authority in asserting 
Clean Water Act jurisdiction pursuant to Section 404(a) over 
isolated, intra-State, non-navigable waters under the Code of 
Federal Regulations, based on their use as habitat for 
migratory birds, pursuant to preamble language commonly 
referred to as the Migratory Bird Rule. The SWANCC case 
involved an abandoned sand and gravel pit on which a consortium 
of municipalities planned to develop a disposal site for solid 
waste.
    ``Navigable waters'' are designed in Section 502 of the 
Clean Water Act to mean, quote, ``waters of the United States, 
including territorial seas.'' After reviewing the 
jurisdictional scope of the statutory definition of ``navigable 
waters'' in Section 502, the Court concluded that neither the 
text of the statute nor its legislative history supported the 
assertion of jurisdiction over the waters involved in SWANCC.
    At the same time, the Court in SWANCC did not disturb its 
earlier holding in the United States v. Riverside Bayview 
Homes, a 1985 case out of Michigan, which found that Congress' 
concern for the protection of water quality and aquatic 
ecosystems indicated its intent to regulate wetlands, quote, 
``inseparably bound up with,'' close quote, jurisdictional 
waters. As the SWANCC Court noted, it was the significant nexus 
between the wetlands and the navigable waters that informed 
their reading of the Clean Water Act in Riverside Bayview 
Homes.
    Now, because the SWANCC decision addressed Federal 
jurisdiction pursuant to the Clean Water Act, it still does not 
affect other Federal or State laws, as the Chairman indicated, 
and I will not enumerate all those laws and programs which are 
designed to protect wetlands. However, because the decision did 
involve the Court's interpretation of navigable waters, as that 
term is defined in Section 502(7) of the Clean Water Act, it 
does have implications for other Clean Water Act programs 
besides Section 404, whose jurisdiction all rest upon the 
meaning of that term. These include Section 303 of the Water 
Quality Standards Program; Section 311, the Spill Program, as 
well as the Oil Pollution Act; Section 401, State Water Quality 
Certification Program; Section 402, the National Pollutant 
Discharge Elimination System, or the NPDES Permitting Program.
    So we see that EPA considers SWANCC in the context of the 
entire Clean Water Act and we need to take that into account 
again, so the ante is much higher for the National Water 
Program in this regard.
    Our written statement for the record addresses in some 
detail the January 15 advance notice of proposed rulemaking, as 
well as our joint guidance, which was published in the ANPRM 
appendix, so I am not going to review all that here, although 
George may be getting into some of that. I do wish to 
emphasize, we issued the ANPRM because we recognize the benefit 
of obtaining public comment on the important issues raised by 
the SWANCC decision. Issuance of that ANPRM was not a legal 
requirement under the Administrative Procedures Act, but was an 
extra measure we undertook to ensure early public input before 
we determined how best to proceed. It presupposes no particular 
outcome, nor any preordained result, but rather demonstrates 
our commitment to public involvement as we consider Clean Water 
Act jurisdictional issues in light of the SWANCC case.
    Following the close of the public comment period in April, 
we received over 133,000 comments. While many of these comments 
were the result of e-mail or write-in campaigns, postcards and 
whatnot, we received approximately 500 individual letters 
discussing specific issues in some detail, substantive 
comments. Review and analysis of these comments will be a 
resource-intensive task which we have already started, and we 
will be hopefully expeditiously carrying out this job summer 
with the help of a contractor.
    At this stage, we have done a preliminary review of some of 
the comments and they reflect a spectrum of Tribal, State, and 
local governments, professional organizations, interest groups, 
and the general public. Although by numbers alone, a 
substantial majority of comments support a narrow reading of 
SWANCC and opposition to reduction in Clean Water Act 
jurisdiction, there is a wide breadth of opinion and divergence 
of views contained within the comments. The extent and rigor of 
the debate resulting from the ANPRM is clearly indicative of 
the importance which the public attaches to the issues of Clean 
Water Act jurisdictions.
    Comments from the regulated community favored a broad 
reading of SWANCC and a reduction in Federal jurisdiction under 
the Clean Water Act, while those from the environmental groups 
generally urged just the opposite. I would like to call your 
attention to one body of comments, that is, the State comments 
from State agencies. The water program is the quintessential 
Federal environmental program, since 45 States have delegated 
authority under the Clean Water Act; 49 States have delegated 
authority under the Safe Drinking Water Act.
    We received comments from 42 States, as well as 
associations such as the Association of State and Interstate 
Water Pollution Control Administrators, ASIWPCA, and the 
Association of State Floodplain Managers. While some certainly 
expressed the view that limited Federal jurisdiction was 
preferable and a necessary outcome of the SWANCC decision, more 
common themes from these commenters were that a substantial 
reduction in Federal jurisdiction was not warranted, would 
potentially disrupt the Federal-State partnership built up over 
the last 30 years of Clean Water Act implementation, and that 
budget and/or legal constraints would limited or delay their 
ability to develop local programs.
    A significant number of these commenters also provided 
information and data on the nature and extent of aquatic 
resources potentially at risk if Federal jurisdiction were to 
be significantly reduced. Many of these pointed out the 
important functions provided by these resources, such as 
floodwater reduction, groundwater re-charge, and habitat 
values.
    I note that all these comments are available to any of the 
members and I believe most of the States of the members did 
submit comments, not all, but most, and we would be happy to 
provide those to you at your request.
    We recognize the Tribes and States, the regulated 
community, the public at large and the environment itself would 
benefit from increased clarity as to the extent of the Federal 
Clean Water Act jurisdiction in light of SWANCC. Providing for 
that increased clarity is no simple matter, involving as it 
does an interplay between complex legal issues, implications 
for an array of Clean Water Act programs, and consideration of 
the appropriate role of the Federal Government in the 
protection of aquatic resources. The issues to be addressed are 
significant and will help chart the direction for future Clean 
Water Act implementation, again for the whole Act, not just for 
Section 404 and not only for EPA and the Department of Army, 
but also for our Tribal and State partners who actually carry 
out these laws in many cases.
    We are fully committed to protecting all Clean Water Act 
jurisdictional waters, including jurisdiction of wetlands as 
was intended by Congress. Our goal in moving forward is to 
clarify what waters are properly subject to Clean Water Act 
jurisdiction in light of SWANCC, and afford them full 
protection through an appropriate focus of Federal and State 
resources in a manner consistent with the Act. We will 
carefully consider all the comments we received in response to 
our ANPRM as we undertake this arduous task.
    Thank you for your attention.
    Senator Crapo. Thank you, Mr. Mehan.
    Mr. Dunlop?

  STATEMENT OF GEORGE DUNLOP, DEPUTY ASSISTANT SECRETARY FOR 
              CIVIL WORKS, DEPARTMENT OF THE ARMY

    Mr. Dunlop. Thank you, Mr. Chairman. I appreciate the 
opportunity to share the Army's perspective about the current 
regulatory status of Federal jurisdiction under the Clean Water 
Act in light of the SWANCC decision.
    As you know, indeed as you said, the EPA and the Corps of 
Engineers share responsibility for the Section 404 Program 
under the Clean Water Act. Fulfillment of the Corps' day-to-day 
responsibilities require about 1,200 staff in 46 Division and 
District Offices nationwide, with an annual budget of about 
$140 million. These resources are required each year to process 
over 80,000 individual and general permit authorizations and 
appeals, including those associated with jurisdictional 
determinations.
    The SWANCC decision held that the Corps does not have 
regulatory jurisdiction under the Clean Water Act for non-
navigable, isolated, intra-State waters where the basis for 
asserting that jurisdiction is solely upon the use or the 
potential use of those waters by migratory birds. On January 
10, 2003, following extensive interagency coordination with the 
Department of Justice and the EPA, the Army and the EPA jointly 
signed post-SWANCC clarifying guidance. This guidance provides 
that jurisdictional decisions will be based upon, first of all, 
Supreme Court decisions, including Riverside Bayview, which 
affirmed that adjacent wetlands are jurisdictional under 
Federal law, and SWANCC of course, as well as other relevant 
regulations and, of course, on case law where applicable in 
each jurisdiction.
    So with the basis of those guidances, we established four 
key points. First, as the Supreme Court held, field staff 
should not assert jurisdiction based on the Migratory Bird 
Rule. Second, field staff should seek formal project-specific 
headquarters approval prior to asserting jurisdiction over 
isolated non-navigable intra-State waters when such 
jurisdiction would be based on inter-State commerce factors 
listed in the Corps' regulations. Third, the field staff should 
continue to assert jurisdiction over traditional navigable 
waters, including adjacent wetlands and generally speaking, 
their tributary systems.
    This guidance describes ``traditional navigable waters'' as 
waters that are subject to the ebb and flow of the tide or 
waters that are presently used or have been used or may in the 
future be susceptible to use for transport of inter-State or 
foreign commerce. And then fourth, the guidance made clear that 
it supersedes the previous EPA legal memorandum concerning 
SWANCC issued on January 19, 2001.
    The Supreme Court's invalidation of the use of the 
Migratory Bird Rule as a basis for Federal jurisdiction over 
certain isolated waters has focused greater attention on 
jurisdiction generally. Specifically, it has focused attention 
on Federal jurisdiction over tributaries to jurisdictional 
waters and over wetlands that are adjacent wetlands for Clean 
Water Act purposes. The joint guidance does provide useful 
information on Clean Water Act jurisdiction to the public and 
to the regulatory staff. However, further information is needed 
to provide the degree of certainty that Agency personnel and 
the regulated public deserve, and to ensure fair, effective and 
predictable administration of the Clean Water Act.
    Any ongoing consistencies in jurisdictional determinations 
made by a Corps official serve to highlight our executive 
branch responsibility to provide clarity that will arise from 
the ANPRM process. The ultimate direction of any proposed 
rulemaking has not been predetermined, and will be influenced 
significantly by the public comment to the advance notice. Our 
general goals will be to provide clarity to the public and to 
improve consistency in Clean Water Act jurisdictional 
determinations nationwide.
    In conclusion, I would like to emphasize that we remain 
fully committed to the protection of all Clean Water Act 
jurisdictional waters, including adjacent wetlands. 
Safeguarding these waters is a crucial function because it 
ensures that the chemical, physical and biological integrity of 
these waters is maintained and preserved for future 
generations, as was intended by Congress.
    Thank you for providing me this opportunity, and I am 
prepared to answer any questions you may present to me.
    Senator Crapo. Thank you, Mr. Dunlop.
    Mr. Sansonetti?

 STATEMENT OF THOMAS L. SANSONETTI, ASSISTANT ATTORNEY GENERAL 
  FOR ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF JUSTICE

    Mr. Sansonetti. Chairman Crapo and members of the 
subcommittee, I am pleased to be here today to discuss the 
Department of Justice's response to the Supreme Court's 
decision in SWANCC. In my testimony today, I will describe our 
work in connection with the Clean Water Act, the interpretation 
of which was at issue in SWANCC, and the efforts we have made 
to ensure that the positions that we have taken in litigation 
are consistent with SWANCC.
    I will also briefly touch upon our efforts to improve 
Federal-State coordination and cooperation in wetlands 
protection and enforcement. In my written testimony, which I 
hope you will be able to put into the record in its entirety, I 
have provided the subcommittee with a perspective on the 
breadth of our work. My Division has a docket of well over 
10,000 pending cases and matters, with cases in each and every 
judicial district in the Nation. The majority of these cases 
are defensive. Although some of these defensive cases involve 
the Clean Water Act, many more do not. In fact, we litigate 
cases arising from over 70 environmental and natural resource 
laws. Even if one were to focus only on our enforcement docket, 
wetlands cases form over a very small subset of our work.
    With that background, I will now discuss in more detail our 
role with regard to implementation of the Clean Water Act. Our 
primary role with regard to the Clean Water Act is to represent 
the Environmental Protection Agency and the Army Corps and any 
other Federal agency that might be involved in Clean Water Act 
litigation. Again, this litigation can either be defensive or 
affirmative. In regard to defensive litigation, it takes a 
variety of forms. For example, affected parties will sometimes 
bring an action against the Corps of Engineers when it grants 
or denies a permit. Affected parties may also seek judicial 
review of any regulations. Finally, Federal agencies can 
themselves be sued for discharging pollutants into the waters 
of the United States if they have not complied with the 
applicable requirements of the Clean Water Act.
    We also bring affirmative litigation under the Clean Water 
Act. CWA civil judicial enforcement actions generally begin 
with a referral or investigation from EPA or the Corps 
regarding an alleged violation. We then conduct our own 
internal independent inquiry to determine whether we have 
sufficient evidence to bring the case, and whether it is 
appropriate for judicial action. If we determine that judicial 
enforcement is warranted, we also explore possibilities for 
achieving settlement for the alleged violations as appropriate.
    As I have noted in my written testimony, the vast majority 
of environmental violations are addressed and resolved by State 
and local governments. In the wetlands area, most Federal 
enforcement of the Clean Water Act that is carried out by the 
EPA and the Corps at the administrative level does not involve 
us. Thus, our work is only a small, albeit important, part of 
Clean Water Act implementation.
    In regard to SWANCC, just as with any other Supreme Court 
case, we try to ensure that the legal positions taken on behalf 
of the Federal Government are consistent, in this case 
obviously we are dealing with SWANCC. So after the SWANCC 
decision came out in January, 2001, my Division undertook a 
comprehensive review of our Clean Water Act docket. We 
scrutinized any case that involved isolated waters, the 
Migrator Bird Rule, or analogous theories to determine whether 
SWANCC had undermined geographic jurisdiction in the case. We 
took action as appropriate. For example, in the Borden Ranch 
case, we decided not to pursue an enforcement claim in light of 
SWANCC, even though we had won on that claim at trial.
    In addition to reviewing our existing cases for consistency 
with SWANCC, we have established a process for ensuring that 
our litigation positions going forward are internally 
consistent and appropriately coordinated with the Federal 
Government. Thus, in addition to the review of all of our 
prospective enforcement cases that I described earlier, we also 
focused on whether there is a sound factual and legal basis 
consistent with SWANCC for proceeding in our Clean Water Act 
cases. We apply a similar process in our defensive CWA-related 
litigation.
    Our careful examination of our cases has paid off with 
success in the courts. Of the 27 cases in which we have filed 
SWANCC-related briefs in the Federal courts, 22 of those 27 
have resulted in court decisions thus far. Seventeen of those 
decisions have been in favor of the United States. I would be 
pleased to make available to the subcommittee, of course, any 
of our briefs that it may request.
    We have also made great strides in improving Federal-State 
cooperation and coordination in environmental protection 
generally, and we are redoubling these efforts in connection 
with SWANCC. Six months ago, we hosted a national wetlands 
conference designed in cooperation with several State 
associations, the EPA and the Corps. The conference took place 
at our South Carolina training facility and attracted 
government officials from many States, including 
representatives of the environment and natural resource 
agencies, attorneys general offices, and even some State 
legislatures. As the conference's keynote speaker, I stressed 
the importance of Federal-State collaboration and cooperation 
in wetlands protection and enforcement, and we look forward to 
continuing this dialog with our State colleagues.
    In closing, I would like to assure the subcommittee that we 
are working hard to ensure that the positions we take in 
litigation are consistent and well-coordinated with our client 
agencies, and I would be happy to answer any questions that you 
may have about my testimony.
    Thank you, sir.
    Senator Crapo. Thank you very much, Mr. Sansonetti.
    I am going to use my question time, Mr. Dunlop, just to get 
a little data from you. First of all, the Federal Government 
does periodic surveys on the status and trends of wetlands. I 
would like to have you tell me what these surveys say about the 
total number of wetlands that are being lost and the total 
number that are being gained in the United States. Do you have 
that data with you?
    Mr. Dunlop. No, sir. I would not have that data because the 
Corps of Engineers does not have authority under law to deal 
with all the wetlands of the United States. The 404 Program of 
the Clean Water Act, which is our regulatory jurisdiction, our 
authority, pertains only to those aquatic resources that might 
be impacted by dredge and fill material. So the type of data 
and information that the Corps would collect and I would be 
party about knowing, would pertain to those types of waters.
    As I indicated, we have about 80,000 permit actions a year 
and jurisdictional decisions. One of the things, the general 
guidance that pertains that might be useful to the point you 
are making is that in so far as the Army jurisdiction, the 
Corps' jurisdiction goes, whenever any person seeks to impact 
the waters of the United States with dredge and fill material, 
the law and our regulations provide that first of all, they can 
only get a permit if there is no other practicable way to avoid 
adverse impact. Second of all, if it is proven that there is no 
other practicable way for them to use their property, then they 
have to come up with options and a plan that would minimize 
that impact. Then finally, once those impacts meet those tests, 
if there are unavoidable impacts, then they must be mitigated.
    The general rule that operates, it is not a rule, but the 
rule of thumb that is used because of the effort that they make 
to have no net loss of wetlands, is that this mitigation 
usually requires more acreage than is filled or impacted 
adversely.
    Senator Crapo. Could you tell me how many permits a year 
the Corps issues?
    Mr. Dunlop. Well, we call them permit actions; 
approximately 80,000; some years it is more. I have some data 
that I could submit for the record, of course.
    Senator Crapo. That would be appreciated. And do you have 
any idea, just ballpark, of how many acres of wetlands that 
would cover?
    Mr. Dunlop. I don't think I have that data off my the top 
of my head, but I sure would be pleased to provide it.
    Senator Crapo. If you would, I would appreciate that. What 
I am getting at is to see what kind of regulatory activity 
underway at the Corps and what level of wetlands impact that 
Corps is having through its regulatory process just in terms of 
numbers of acres.
    Mr. Dunlop. Yes, sir. I have a chart here that I can submit 
for the record, maybe in the context of the total slide show we 
have here. The wetland acreage impact indicates that there were 
approximately last year in fiscal year 2002, 57,821 acres were 
mitigated; 24,651 were impacted. So we have got in this case 
better than two-to-one acres mitigated for every one impacted, 
but this goes back decades, so I will present this data for the 
committee.
    Senator Crapo. Alright, thank you very much. I would 
appreciate that.
    I think, Mr. Sansonetti, I will direct this question to you 
first; any one of you may answer it, probably. Could you 
describe the legal and practical implications of striking the 
word ``navigable'' from the Clean Water Act as Senator 
Feingold's bill would do?
    Mr. Sansonetti. The Department of Justice has frankly not 
been asked yet to see Senator Feingold's proposed legislation, 
and frankly, I have not seen it, so I am not sure if I should 
be commenting on it before going through our usual review. But 
just to say that there is a lot of litigation cropping up all 
over the United States right now because of the SWANCC 
situation.
    At the present time, we have legislation in five different 
Circuit Courts of Appeal right now, with arguments already 
having been completed or notices of appeal filed on that very 
issue. So we are going to be getting a variety of opinions over 
the next year as to the importance of the word ``navigable.''
    However, it is an adjective that describes the waters of 
the United States, so I suspect that until either the Congress 
gets back into the field of better clarifying what was in the 
1972 law, then either the decision is going to be made by the 
courts one by one until another case goes back up to the 
Supreme Court; the Congress passes additional clarifying 
legislation; or the executive branch tries to deal with it in 
the form of a new rulemaking.
    Senator Crapo. Thank you very much.
    Mr. Dunlop or Mr. Mehan, do you have any comment on that 
question--what the elimination of the word ``navigable'' would 
do? I mean, obviously it is going to expand the jurisdiction of 
the Act. Any observations other than that?
    Mr. Mehan. No, nothing to add to Mr. Sansonetti's words.
    Mr. Dunlop. No, sir.
    Mr. Crapo. All right, thank you very much.
    I will hold back my further questions at this point, and 
will turn to Senator Jeffords.
    Senator Jeffords. Mr. Mehan, I am deeply concerned about 
the information in the report recently compiled by the EPA that 
documents extensive noncompliance and a decline in EPA's 
enforcement program. When 59 percent of those who violate toxic 
permit limits do so by more than 100 percent, and 85 percent of 
major facilities with significant violations do not receive 
formal enforcement action, there is clearly a problem.
    Can you describe the Administration's plans to respond to 
this report and your level of commitment to the Clean Water Act 
enforcement?
    Mr. Mehan. I will try, Senator.
    As you know, enforcement is handled in a separate office in 
the Office of Water, the Office of Enforcement and Compliance 
Assistance. I have had numerous conversations with my colleague 
J. P. Suarez on his efforts to shore up that program at his 
end. Looking at it from the Office of Water perspective and to 
the extent that I am involved with that, enforcement begins 
with a permit, the NPDES permit. That is sort of your 
fundamental charter, if you will, from which inspection and 
enforcement responsibilities are derived. We are undertaking a 
permit integrity program right now where we are trying to look 
at this whole issue of our delegated programs in a very 
stressful financial environment.
    As you know, the National Association of Public 
Administrators says there is something like a $700 million, 
approaching $1 billion shortfall in terms of managing our clean 
water programs at the State level, 45 of whom have delegated 
authority. My own Corps programs, including permits, are down 
32 percent over the last five or 6 years. So we are trying to 
come to grips with how to deal with all these pressing 
responsibilities. Meanwhile, we have TMDLs coming on line and 
more responsibilities.
    I think information is key; having it there where managers 
can monitor the facts, say, if you end up with more than 20 
percent or 25 percent of your major permits in significant 
noncompliance; whether the data is good or bad or needs to be 
ground truth, that ought to set off some alarms and you need to 
manage the issue. I think some effort at prioritization; if you 
have an operation that has not really changed its production 
processes at all, that permit may not be as significant as one 
where you have had dynamic technological developments in that 
industry.
    If you on a water body that is impaired, i.e. not meeting 
water quality standards, that is probably a higher priority 
than one that is unimpaired; if you are near a drinking water 
source; and on and on.
    So we are trying to basically optimize the resources we 
have to deal with a number of serious issues. Again from our 
end, it starts with the NPDES permit, and we are trying to pull 
together the data systems and the guidelines and do a 
collaborative effort with our State partners to shore that up.
    There is also the enforcement component, and I know Mr. 
Suarez has talked about a watch list. He is engaging his 
regional staff in a lively dialog on this very matter.
    Senator Jeffords. Thank you.
    Mr. Mehan, you and I exchanged letters earlier this year on 
the status of Lake Champlain under this rulemaking. I ask 
unanimous consent that these letters be included in the record.
    Senator Crapo. Without objection.
    [The referenced documents follow:]
    
    
    
    Senator Jeffords. In my letter to you, I asked for and 
received clarification that the protection status of Lake 
Champlain and its tributaries will not be affected by the 
Agency's rulemaking. Is that correct?
    Mr. Mehan. That is correct.
    Senator Jeffords. I also asked you, and did not receive 
clarification, that all similar waters will not be affected by 
the Agency's rulemaking.
    Mr. Mehan. As the guidance that was put out in January 
says, if you have tributaries to navigable waters, that is not 
an area of dispute, and that remains jurisdictional. So just by 
extension of the principle, that is the case with Lake 
Champlain and it would be the case with watersheds involving 
navigable waters also.
    Senator Jeffords. I am puzzled why all waters in this 
category are not affected by the rulemaking in the same way. 
Can you explain that?
    Mr. Mehan. I am sorry. Could you repeat the question, 
Senator?
    Senator Jeffords. Why all waters in the same category are 
not affected by the rulemaking in the same way.
    Mr. Mehan. It is sort of a definitional issue. If you have 
navigable water and you have a body water that is tributary to 
the navigable water, we do not see a jurisdictional issue 
there. I think the guidance in January said that.
    I guess where you get into disputes is not over the 
principles of law or regulation; it is the application of the 
principles of law to factual circumstances. Is something really 
tributary? Is it in the watershed? What is the hydrology? et 
cetera, et cetera. But at least as a matter of legal 
definition, I do not think there is much dispute in the case of 
a tributary to a navigable waterway.
    Senator Jeffords. Mr. Sansonetti, the Department of 
Justice's interpretation of the SWANCC decision is considerably 
narrower than construed by the EPA and the Army Corps as a 
justification for changing Clean Water Act rules. Rather than 
finding that the definition of ``waters of the U.S.'' needs to 
be changed by a new rulemaking, the DOJ has steadfastly argued 
in two dozen briefs filed in the Federal courts that Agencies' 
existing definition of the ``waters of the United States'' is 
valid, and indeed required to achieve the purposes of the Clean 
Water Act. Are these arguments consistent with the advance 
notice of proposed rulemaking issued by EPA and the Corps?
    Mr. Sansonetti. Certainly they are, because you have to 
remember the difference in our roles here. The Department of 
Justice's responsibility is to defend the law as it exists and 
the rules and regulations supporting that legislation. So the 
purpose of the ANPRM was to put out an opportunity for people 
to comment as to what they thought the impacts of the SWANCC 
decision were, and then to allow the policymakers to decide 
whether or not the rule or regulation needs to be changed. Now, 
that responsibility of course falls on the EPA and the Army 
Corps, but until that rule or regulation changes, the 
Department of Justice has to deal with the law and the rules 
and regulations as they are written. That is why you have 
commented on the consistency with which the Department of 
Justice has filed briefs in the cases we have litigated at both 
the District and the Circuit Court levels.
    That is also why I think you will find that we are very 
proud of our enforcement to date because it is almost $7.95 
billion that have been brought in through injunctive relief in 
the last 2 years, including the largest Clean Water Act fine 
ever--$8.2 million in the Allegheny Ludlum case in 
Pennsylvania.
    Senator Jeffords. OK, that is all.
    Senator Crapo. Thank you very much.
    Senator Inhofe?
    Senator Inhofe. Senator Jeffords mentioned the Washington 
Post article twice, and I just want to make a couple of 
comments. First of all, that was supposed to be sensitive 
information that was leaked internally by the EPA and it should 
not have been leaked. Unfortunately as is often the case when 
they leak a little bit of information, they do not give the 
whole story. In my case of Oklahoma, for example, once an 
institution is under the administrative orders, we can include 
those statistically which some other States do not do. So it is 
really not all that accurate. That always bothers me when 
something is leaked and it should not have been leaked. To me, 
the most significant thing about the Washington Post story was 
that it showed that we did the right thing in our Wastewater 
Security bill by keeping sensitive information out of the hands 
of the EPA.
    In the opening statement, I talked about in the last day of 
the Clinton Administration, then again in January, the 
information really coming down. The guidance was not very 
accurate. In fact, in reading out of the report, it says, 
``This memorandum does not discuss the exact factual predicates 
that are necessary to establish jurisdiction in individual 
cases. We recognize that the field staff and the public could 
benefit from additional guidance on how to apply the applicable 
legal principles to individual cases.''
    In your testimony, you state that further information is 
needed to provide the degree of certainty that Agency personnel 
and the regulated public deserve, and to ensure the fair and 
effective administration of the Clean Water Act.
    So Mr. Mehan, do you anticipate that this additional 
information will be supplied to the Agency personnel and the 
regulated public in the form of additional guidance? If so, 
when?
    Mr. Mehan. As I said in my testimony, Senator, we are not 
pre-judging or pre-ordaining the outcome of our review of the 
public comments. After we get through the public comments, that 
is just the beginning of what will be no doubt a very extensive 
interagency consultation, not just with the Corps of Engineers, 
not just with the Department of Justice, but with OMB, CEQ, 
Department of Interior and USDA. So to make any predictions as 
to outcomes or timelines, I could do that, but I would be 
lying.
    Senator Inhofe. All right.
    Mr. Dunlop, last year the Department of Interior published 
a study of isolated wetlands and included at least one 
definition of ``isolated,'' and I will read that to you: 
``Wetlands surrounded by upland may be considered isolated 
since they are separated from other wetlands by dry land.'' 
This is the isolation from a geographic landscape or a 
geomorphic perspective. Now, if a wetland is separated from 
another jurisdictional water by dry land, does the Agency 
consider the wetland to be isolated? Do you consider that to be 
isolated?
    Mr. Dunlop. Sir, in each of the cases that people have to 
consider out in the field, they consider a number of criteria. 
The guidance that we have given, that the Corps Director of 
Civil Works has given to the field, is, as I outlined in my 
testimony, those four factors, those four broad guidelines. In 
the absence of clarity about what ``isolated'' is, as defined 
in regulation and law, that of necessity leaves circumstances 
where there might be what is called ``case-specific'' judgment. 
There are issues that have to do with do you use the geographic 
proximity, as was suggested in your question? Other folks might 
maintain that you have to use a hydrological connection. These 
regulations and the guidances and everything that are out there 
in the field for these 1,200 people----
    Senator Inhofe. I think what you are saying, Mr. Dunlop, 
and I am running out of time here, is that there is no accurate 
definition of ``isolated.''
    Mr. Dunlop. Correct.
    Senator Inhofe. Let me ask the question of Mr. Sansonetti. 
From a legal perspective, this is one of the biggest problems 
we have right now. Can you legally define ``isolated''?
    Mr. Sansonetti. That is the subject matter of about nine of 
these cases, and it is very unclear.
    Senator Inhofe. How about ``adjacent''?
    Mr. Sansonetti. Same problem.
    Senator Inhofe. How about ``tributaries''?
    Mr. Sansonetti. Same problem.
    Senator Inhofe. That is the problem.
    Mr. Sansonetti. It is going to be litigated through all the 
courts at the present time.
    Senator Inhofe. I appreciate that.
    You were asked by the Chairman about some legal problems 
that could come up. Do you think that the broad definition of 
``water'' like that found in the Feinstein bill could lead to 
or raise some constitutional questions in the future?
    Mr. Sansonetti. Again, I do not want to comment on a bill I 
have not read, or that the Administration has not taken a 
position on as a whole, so I am going to answer it in a more 
general term. I feel that at the present time, there will be 
continued litigation over the term ``waters of the United 
States,'' as you have just proposed it, until there is a 
brighter line drawn.
    Senator Inhofe. Yes, I think that is right. The last 
question, Mr. Chairman, I would have for Mr. Sansonetti, when 
you had at the bottom of page seven, you said, ``One of the 
basic teachings of the SWANCC decision is not every wetland or 
other aquatic area in the country is an appropriate subject of 
Federal regulations under the Clean Water Act. Since the 
decision of SWANCC, some states such as,'' and so forth.
    Just what areas, can you define what should be and should 
not be when you made that statement, when it is not appropriate 
for the Federal Government, and what would be more appropriate 
for the States?
    Mr. Sansonetti. I feel that the States always have the 
right under the principle of federalism to pass their own 
legislation to protect the waters within their borders. I 
encourage them to do so. To the degree that there are portions 
of the waters not included in the legislation and the rules and 
regulations that protect waters, the States always have that 
right to go ahead and pass their own. I believe 15 to 18 States 
already have.
    Senator Inhofe. I appreciate that very much and I agree 
with you.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you.
    Senator Thomas?
    Senator Thomas. Thank you, Mr. Chairman.
    Mr. Dunlop, you just walked in here and had not spent a lot 
of time on this. It doesn't sound like you think there is any 
problem at all for the Corps.
    Mr. Dunlop. No, sir. I think in my testimony I tried to 
convey that as related to the issues of jurisdiction, there are 
a lot of problems because of the line of questioning we just 
went through. The people who are out there in the field, those 
1,200 people we talked about who are the day-to-day regulators, 
have general guidance, but they don't have specific guidance 
and information about the definitions of some of these terms. 
What is a ``tributary'' really? Does it extend to such things 
as pipes and ditches? What is the meaning of ``adjacency''?
    These types of questions and issues that these folks have 
to deal with every day does create an enormous set of problems 
for them when it comes to having consistency of approach and 
predictability. So I hope I have not conveyed that there is no 
problem whatsoever.
    Senator Thomas. There has been apparently, and particularly 
in a California water quality board, where the suggestion has 
been that municipal storm sewers are considered waters of the 
United States.
    So my reaction to both of you is you do not seem to have 
any solution. What do you want to do? Do you want to be able to 
expand jurisdiction? Do you want to be able to simply define? I 
think clearly it could be defined. It could be defined. Or do 
you want to let the States have more authority, as some of us 
suggest? I cannot sense that you have any notion where you want 
to go.
    Mr. Dunlop. Yes, sir. There are three options really that 
we have from the Federal perspective. Of course, the one about 
the State perspective is another. But from the Federal 
perspective, we can continue with the guidances as they now 
are, which would result with this lack of clarity in the 
court's playing an increasing role. Option two is to, as is 
informed by this advance notice of proposed rulemaking, perhaps 
move to a rule, a proposed rule, and then all of that process 
that Mr. Mehan has described. The third option is perhaps again 
through the ANPRM to come up with additional guidance. But one 
of those three factors or options is going to further inform 
public policy.
    Senator Thomas. That is true. We have been 3 years getting 
there, however, and have not done that.
    Mr. Mehan, you indicate that you put out in January a 
proposed rule. The reaction I get is that that rule has not 
helped to clarify the situation at all.
    Mr. Mehan. Senator, it was not a rule. It was an advance 
notice of proposed rulemaking.
    Senator Thomas. I understand, but it would be a rule--that 
is what you put out is a trial rule, exactly, wasn't it?
    Mr. Mehan. It was not.
    Senator Thomas. What did you put out?
    Mr. Mehan. As I said in my testimony, it was basically an 
invitation for more information, more data, more considered 
opinion whether it is legal, scientific, policy or economic 
that would be relevant to the two questions that were framed 
into it.
    Senator Thomas. You don't have any point of view on that, 
then? You just asked for everyone else's point of view and then 
wonder why you don't have a decision?
    Mr. Mehan. I have never been accused of lacking a point of 
view on anything, but I don't speak for myself as I sit here. I 
speak for an Agency.
    Senator Thomas. I am not talking about that. Here is an 
Agency that has a law to work under and they ought to be able 
to interpret that and put out something that would help clarify 
it. You put out something that did not help clarify it.
    Mr. Mehan. Let me with great temerity go this far. From an 
EPA perspective, our inclination would be to follow ecology and 
hydrology as far as the law will allow us. In other words, look 
at things on a watershed basis. However, it is entirely 
possible that Congress intended to not go that far. So I think 
part of the dialog we are having is, to what extent legislative 
intent trumps ecology and hydrology.
    Senator Thomas. That is kind of what the court is supposed 
to do, isn't it?
    Mr. Mehan. Well, there has been a lot of talk about 
uncertainty in our regulations. I think there is uncertainty in 
the law; there is uncertainty in the legal decisions by the 
Court. It was a five-four decision. We are seeing a whole raft 
of different opinions by the Circuit Courts and the District 
Courts.
    Senator Thomas. Do you work with court decisions based on 
what the number of judges were and how they voted?
    Mr. Mehan. No, but as one who practiced law for 15 years, 
as a practical matter you do wonder whether five-four decisions 
are going to have staying power.
    Senator Thomas. I understand, but here we are trying to 
solve a problem. Here we are, you are indicating that there is 
$1 billion worth of undone work. Instead of finding a solution, 
why you just kind of keep asking people what they want to do. 
It seems to me you have to come to the snubbing post and do 
something here pretty soon. That is what I hoped you maybe 
would have some suggestions here as to how we roll along.
    Thank you.
    Senator Crapo. Thank you.
    Senator Murkowski?

OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM THE 
                        STATE OF ALASKA

    Senator Murkowski. Thank you. I appreciate the testimony 
this morning.
    We have more than our share of wetlands in Alaska, although 
we are happy to have them and are taking good care of them. But 
according to the U.S. Fish and Wildlife Service, Alaska has 
more wetlands than the remainder of the U.S. combined; over 174 
million acres of lands designated as wetlands which is more 
than 40 percent of the State of Alaska. So in other words, we 
have more wetlands in Alaska than the entire State of Texas.
    It is huge. And we have some pretty interesting wetlands. 
As you probably know, up in the North Slope we have ice lenses, 
which is permafrost where the water has melted. These are 
basically potholes all over; 80 percent of the 20 million acres 
in Alaska's North Slope are classified as wetlands. They are 
certainly not navigable; you can't put a boat in them.
    In the southern part of the State we have another issue. We 
have mountaintops where we have areas of muskeg where there are 
little lakes all over; absolutely impossible to get to; 
absolutely impossible to, if you are talking about 
navigability, having an implied potential to be used in 
interstate commerce, it does not exist up there. So our 
wetlands I think are very distinct and unique.
    Mr. Dunlop. I cannot address that specifically. I would 
have to inquire of the Alaska Division and to the Corps 
regulatory people to get a precise answer for you, Senator.
    Senator Murkowski. How would the Corps view the example of 
up in the North Slope where you have these potholes, or the 
muskeggy lakes up in the tops of the mountains in Southeastern 
Alaska? How would the Corps view these, when we are talking 
about isolated or non-isolated waters?
    Mr. Dunlop. Well, of course the direction that we have now 
from the Supreme Court is to follow the guidance that they have 
given us, that lands that we cannot use the Migratory Bird 
Rule; lands that don't involve interstate commerce or foreign 
commerce would not be involved. That is the first of the four 
elements that we have that the Corps uses in determining 
jurisdiction.
    Senator Murkowski. So what you are saying, then, is that 
the State would have jurisdiction?
    Mr. Dunlop. Well, I am not informed of that, Senator. I 
would have to inquire further and find out. I do not know the 
specifics of how the guidance is being carried out in each of 
the Divisions of the Corps.
    Senator Murkowski. Wouldn't the guidance be the same within 
the Divisions of the Corps? I would think that the Corps would 
treat the States in the same way.
    Mr. Dunlop. Yes, the guidance is general. That is right. 
What we are trying to achieve is indeed this consistency of 
approach throughout the United States where it is appropriate. 
Given the fact, of course, as you are indicating in your 
question, that in the natural system there are always siting 
situations in specific circumstances. There never will be a 
complete set of consistency that one cookie cutter size fits 
all for everywhere in America. There just cannot be because the 
resources are too dynamic.
    Senator Murkowski. We appreciate that there can't be a 
perfect standard, but we have to get some legal definition to 
identify the non-navigable waters. Recognizing that we don't 
have that set definition, is there some guidance that is coming 
out of the Department of Justice that you are providing to 
either EPA or to the Corps?
    Mr. Sansonetti. No. What we supply them with is advice on 
what they come out with as to what should be guidance. So we 
were involved primarily in an advisory role leading up to the 
ANPRM that they issued, which also included an addendum that 
was dated January 19 or something like that of this year, that 
is the latest guidance. So there is a relatively new guidance 
issued by the Corps and the EPA as of January of this year. As 
I understand it, the Corps is trying to implement that guidance 
in each of the regions of the country.
    Senator Murkowski. So we are no more specific than just 
advisory at this point in time?
    Mr. Sansonetti. That is correct.
    Senator Murkowski. Mr. Mehan, as far as jurisdiction over 
the isolated non-navigable waters, in the view of EPA do you 
feel that the States are capable of exercising the authority 
over these waters in a manner that protects the environment?
    Mr. Mehan. Certainly, my adopted State of Michigan is, 
because it is one of the two States that assumed that 404 
Program, as well as having its own State program. Other States 
are, because of whatever reasons--economic, policy, political 
judgments--are not inclined to do that, but all States have the 
inherent authority to do it if they are so disposed and their 
political process warrants that undertaking.
    Senator Murkowski. Mr. Dunlop, I will go back to you, then, 
for a second. As I have indicated, the State of Alaska has more 
than its share of wetlands. What percentage of the Corps budget 
for wetland permitting supports the activities in Alaska? Is it 
proportionate to the amount of wetlands that we have?
    Mr. Dunlop. Gosh, Senator, that is a good question. Maybe I 
will ask my Corps regulatory people if they would have any idea 
about that.
    [Confers with staff.]
    The budget that the Corps has is by workload, rather than 
particular acreage of wetlands.
    Senator Murkowski. Thank you, Mr. Chairman.
    Senator Crapo. Thank you.
    Senator Clinton?

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR 
                   FROM THE STATE OF NEW YORK

    Senator Clinton. Thank you for calling this important 
hearing. I wanted to follow-up on some of the lines of 
questioning from both Senator Inhofe and Senator Murkowski 
because I think that there is, in addition to the general 
concern about not having adequate guidance, questions being 
raised about the appropriate role of State regulation and 
Federal regulation going forward.
    In its comments on the ANPRM, the New York State Department 
of Environmental Conservation makes the point that strong 
nationwide protection ensures that upstream States cannot 
export pollutants to downstream communities. That is a very big 
issue for us in New York because the water quality of several 
of our essential water resources depends on the actions of 
other neighboring States. We border Lakes Erie and Ontario, 
Champlain, which I am proud to share with my colleague Senator 
Jeffords, the Niagara and Allegheny Rivers, Long Island Sound, 
the New York-New Jersey harbor.
    Therefore, it is not just a question of what we can do on 
our own; what kind of regulations we can pass and enforce in 
New York. I appreciate Mr. Mehan's comment that EPA would 
prefer to follow ecology and hydrology as far as possible 
because, of course, we know that that affects the entire water 
quality across our country.
    So let me ask both Assistant Administrator Mehan and Deputy 
Assistant Secretary Dunlop, as you go forward in trying to 
provide clarification, how do you expect to create 
circumstances in which there will be protection for ecology and 
hydrology across State lines? And what ability or recourse 
would downstream States have to ensure that they are not left 
cleaning up the pollution of their upstream neighbors? Because 
although obviously we know States have a right to protect 
waters under federalism, even non-navigable waters, isolated 
waters, intermittent streams affect the entire hydrology, which 
in turn affects those beyond the borders of the States in which 
the waters are located.
    So how do you see going forward we are going to provide 
that kind of protection for systems that go across State lines?
    Mr. Mehan. Senator, I take your question to really 
encompass the broader aspects of the Clean Water Act, not just 
the 404 Program. I can tell you that we very much already do 
everything we can with the authority we have to think broader, 
think interstate, think ecologically on watersheds. I think of 
the Great Lakes Initiative which was a major regulatory effort 
that I was involved in as a State official, now implementing as 
a Federal official, to regulate persistent biotoxics for the 
whole Great Lakes system because these persistent toxics will 
affect the whole system.
    In the new CAFO rule that we recently promulgated, 
concentrated animal feeding operation, we allow provision there 
to allow a regional office on an interstate water where the 
water quality standards are impaired to address the question of 
whether an AFO should be designated a CAFO and therefore come 
within the permitting system. When we set water quality 
standards, we generally look at, and this is a controversial 
area, what the downstream State is and how protected that is 
relative to the upstream State. Sometimes we try to do that 
through a collaborative consensual process. We are trying to 
work through that on the Arkansas-Oklahoma dispute right now.
    So we have many authorities in many areas where we try to 
carry out, imperfect although it be, a broader watershed 
approach. That is why I said in my opening remarks that the 
issue of SWANCC goes beyond 404 for us; that it is a broader 
issue and we need to look at it in the context of water quality 
standards, of permitting, of oil spill protection, et cetera.
    Senator Clinton. I very much appreciate that, Mr. Mehan, 
because I think that all authorities will be impacted. We are 
acting as though the SWANCC decision and 404 are themselves 
isolated provisions that have no larger impact. Of course, we 
know that not to be the case. So I very much am pleased to hear 
what you said about ecology and hydrology, and the impact 
across State lines of a lot of these decisions.
    Let me just go on to a related question, because it is one 
that I am also very concerned about. It is more intra-State, 
but it has the same kind of long-lasting impact. We currently, 
as you know, in New York City have nine million residents in 
the city and the surrounding suburbs, about half the population 
of the entire State, who rely on the New York City watershed as 
the source of their drinking water. The Cat-Del system which 
supplies about 90 percent of New York City's water supply meets 
the filtration avoidance criteria of EPA's surface water 
treatment rule, and therefore the city was able to demonstrate 
the source water was adequately protected, would remain so, and 
as a result EPA has issued a filtration avoidance determination 
for the watershed.
    Now, the New York City Department of Environmental 
Protection estimates that over 3,700 acres of vegetated 
wetlands and ponds, 15 percent of those in the New York City 
watershed, could be affected by the proposals suggested by the 
Administration's ANPRM. Obviously, that is a very serious 
issues, as are the fact that we have over 60 wastewater 
treatment plants that discharge into the intermittent streams 
in the watershed. Those treatment plants might no longer be 
required to operate under a Clean Water Act discharge permit if 
the Administration makes the contemplated changes to the Clean 
Water Act that are at least suggested in the proposed rule.
    So I am looking for assurance from both EPA and the Corps 
that the residents of New York City and our surrounding 
communities that now could drink this relatively pure water 
from our watershed will not be in danger by removing these 
waters from the Clean Water Act's jurisdiction or adversely 
affected under any rulemaking put forward by the 
Administration.
    Mr. Mehan and then Mr. Dunlop.
    Mr. Mehan. Senator, if I might just demur a bit from your 
characterization of the ANPRM, there was not a signal there to 
do any particular substantive rulemaking. I think it was an 
invitation for a dialog so we could try to explore collectively 
with the broader community what did SWANCC mean and what were 
its impacts. So again, as I said in my opening remarks, we have 
no pre-judged or pre-ordained an outcome here.
    I can tell you that again we want to look at the comments, 
and look at the State of New York's in particular, along with 
our other State partners. Again, there may be some legitimate 
confusion here that we can clarify through guidance. It may be 
that if there is a hydrologic connection that people do not 
realize through groundwater that you really, again, we have to 
come to some understanding on this. Some of these things we 
might be able to come to an agreement without a rulemaking; 
some things may be presenting more daunting prospects.
    It is hard for me to give you a definitive answer, partly 
as a midwesterner my New York geography is somewhat deficient, 
much less understanding the hydrology there, but we intend to 
look at it to the extent that the law allows us to assure the 
fullest protection under the Clean Water Act and the Safe 
Drinking Water Act for what is literally a wonderful program in 
New York with that filtration avoidance effort.
    Senator Clinton. We would be glad to have you come visit. I 
would love to show you.
    Mr. Mehan. I look forward to that.
    Senator Clinton. Thank you, Mr. Mehan.
    Mr. Dunlop. Yes, ma'am, from the perspective of the Army 
and the Corps of Engineers, of course our jurisdiction does not 
go broadly, as Mr. Mehan was discussing and as you have been 
elaborating about your concerns and interests there. It goes 
more specifically to the dredge and fill issues that result. 
And of course, as I have described earlier, our whole program, 
the whole 404 regulatory program is designed to fulfill the 
aspirations of the Clean Water Act to make sure that if any 
impact is made, that there is mitigation so that the 
functionalities that exist are not impaired and all the rest.
    So we would certainly be in that same perspective about the 
watershed concerns that you have expressed, to make sure that 
if there is any impact from any development or any persons or 
government's use of their property, that it would be adequately 
mitigated.
    Senator Clinton. Thank you.
    Senator Crapo. Senator Jeffords, did you have a comment?
    Senator Jeffords. In the interests of clarifying my 
comments relating to the recent EPA reports on Clean Water Act 
enforcement, I ask unanimous consent that the full reports be 
submitted and be made a part of the record.
    Senator Crapo. Without objection, so ordered.
    [The referenced documents follows:]

    
    
    Senator Crapo. I should announce to the folks here that we 
have been informed that we are going to have a vote at 11:30 
a.m., which means in about 5 or 6 minutes, if it occurs as they 
have projected it. So what I am going to do is continue the 
questioning of this panel for that five or 6 minutes, and then 
we will come back after the vote and begin the third panel. If 
there are no senators here to switch off, then what we will 
probably do is just recess for a short time. I think it is only 
one vote, and go over and vote and come back, and then resume 
the panel.
    In the few minutes that I have to go back into questioning, 
I would like to talk for a moment about some of the difficulty 
we are facing with regard to getting a handle on what is coming 
out from the Agencies as to how we are administering the 
wetlands program. Mr. Dunlop, I have a copy of a Powerpoint 
presentation that the Jacksonville District of the Corps is 
giving on the SWANCC decision and the advance notice of 
proposed rulemaking. Are you familiar with that document?
    Mr. Dunlop. No, sir, I am not.
    Senator Crapo. Basically what it does is go through a 
number of the issues to try to explain to folks. I assume it is 
a presentation to try to help people who are dealing with the 
issue to understand where we are today.
    Mr. Dunlop. Yes, sir.
    Senator Crapo. Just to give you a couple of examples, on 
the section entitled ``adjacent waters,'' it has a little duck 
talking to explain the circumstances. It is talking about the 
fact that the Supreme Court has not defined the term 
``adjacent'' or whether the basis for adjacency is geographic 
proximity or hydrology. Then it goes on to talk about the fact 
that wetlands are jurisdictional only if they are adjacent to 
navigable waters, and describes the fact that the Corps defines 
``adjacent'' as bordering, contiguous or neighboring, and has a 
little map showing that this could be many different things. In 
fact, it says that there is no fixed distance that may be 
required.
    The ultimate conclusion of the section on adjacency is that 
there isn't even a definition of where the measuring point 
starts, so we don't know where the measuring point starts for 
what is adjacent; we don't know what distance we are talking 
about in terms of bordering, contiguous or neighboring. And the 
little duck says, ``Adjacent is what I say it is.'' It seems to 
me that that is about the kind of clarity that we have in the 
advance notice of rulemaking and the status of where we are 
right now. I just wanted to ask you if you feel that this is 
the way that we should be approaching the definition of what it 
is that we are getting at under Section 404 of the Clean Water 
Act?
    Mr. Dunlop. Well, sir, I think that the process that we 
have is the appropriate process. As we discussed earlier, 
another option would be just to not do anything and let the 
courts litigate these matters and come up with all these 
disparate decisions, and maybe that would provide enough 
guidance. That could take years and be totally unsatisfactory.
    The other approach could be that maybe a bunch of smart 
guys like us could sit around in our various agencies and we 
could think up very specific definitions for all these matters 
and send them forth top-down from Washington and decree all 
these things under the authorities we have. The third option is 
to go out to the public and say, gosh, there are a lot of 
things to think about here, just as you have described. Can 
you, Mr. and Mrs. America and people who have a demonstrated 
interest in these things, inform the policy process?
    That is what the ANPRM asked them to do, Would you inform 
this process? Then ultimately, the obligation does reside, if 
we go through a rulemaking, for those people in the executive 
branch in effect to legislate through rulemaking, or there may 
be other ways that legislation entails through the legislative 
branch. The point is that this process of collecting 
information and data and comments from a broad range of the 
American people seems to us to be the most prudent and best way 
to bring all these matters to conclusion.
    Senator Crapo. So you are telling me that as the matter 
does come to conclusion, we should seek to get some clarity on 
matters as to the definition, for example, of what ``adjacent 
waters'' means?
    Mr. Dunlop. Yes, sir.
    Senator Crapo. And that when we are at that point of the 
conclusion, we should have clarity in these definitions?
    Mr. Dunlop. Yes, sir. I think that is fundamental to the 
rule of law.
    Senator Crapo. I would certainly agree. One of the reasons 
that we are having this hearing is to try to figure out whether 
and if so and in what way Congress needs to weigh in on this 
issue. Obviously, there already has been a piece of legislation 
introduced to deal with it in one context. I am sure there are 
a lot of ideas about how that should be done.
    Do you have any idea, or can you give me a projection as to 
when the rule would be proposed and be made available?
    Mr. Dunlop. The reason that it is very complicated to give 
a reasonable projection is because of the enormous number of 
comments that have arrived, as Mr. Mehan was describing, and 
our sincere interest in parsing these comments in a way that 
will have legitimacy in terms of fully considering all these 
matters. I think we tend to be biased to action at the Army, 
and we would like to move sooner than later.
    Senator Crapo. So maybe next week?
    Mr. Dunlop. No.
    [Laughter.]
    Mr. Dunlop. But I don't know that we have even done more 
than open all those 133,000 envelopes yet. But as we delve into 
these matters, we will move with dispatch. It is certainly our 
intent to move with dispatch.
    Senator Crapo. You do not have a projected time line?
    Mr. Dunlop. No.
    Senator Crapo. I just want to conclude with one further 
observation, and if any of you would like to comment on what I 
am going to go through here, you are certainly welcome to. Just 
to show an example of the breadth of what we seem to be dealing 
with here in terms of the previous interpretation of the Clean 
Water Act, I have a copy of a water discharge permit for the 
San Diego area. In this document, it defines what are the 
waters of the United States. This as previously, and I realize 
we are in kind of a confused state right now as to what we are 
talking about. But in here, it says, as has been stated 
previously in some of the testimony and some of the questions, 
that a municipal separate storm sewer system is considered to 
be a part of the waters of the United States.
    Then when you look at the definition of what that storm 
system is, I mean, a municipal separate storm sewer system 
includes a whole bunch of things. It is a lot of small print 
here. But one of the things it includes is everything, 
including roads with drainage systems, municipal streets, catch 
basins, curbs, gutters, ditches, natural drainage features or 
channels, modified natural channels, manmade channels, or storm 
drains. We are talking about regulating under Section 404, if 
it were done the previous way we were approaching it, 
regulating gutters in streets.
    The question I have as I approach all of this is, as we try 
to make sense out of the SWANCC decision and where we go from 
here, is whether we intended that under the Clean Water Act in 
the first place, and regardless of whether we intended it then 
or not, what the sensible approach to regulating the wetlands 
of the United States should be.
    It seems to me that we are getting pretty far out there as 
we start talking about regulating gutters in streets, as 
opposed to truly focusing on the wetlands with a regulatory 
regime. I go back to my earlier comments about the number of 
other Federal statutes that are at play here.
    I realize that I am just making a statement, but if any of 
you would like to comment on that before we wrap up, I assume 
those bells were the votes. Before I toss it to the panel, 
maybe I should see if the Chairman or anyone else does.
    I will tell you what. Let's do this. The Chairman wants to 
ask one question of one of the panelists on the next panel.
    Senator Inhofe. They can go ahead and respond to this, 
because we have 10 more minutes; 15 probably.
    Senator Crapo. OK. If any of the members of this panel 
would like to respond to my comments, very briefly, you may.
    Mr. Mehan. Just again, I think your question is evidence of 
the difficulty of sorting out the 404 issues from the whole 
Clean Water Act, since stormwater is regulated in fact in many 
circumstances as a point source under the Clean Water Act. We 
have hundreds of thousands of general permits regulating those, 
and CSOs.
    Senator Crapo. So it is not as though it is not already 
regulated.
    Mr. Mehan. Yes, and it is, and then the watersheds. So in 
other words, there may be cases where 404 jurisdiction has been 
extended beyond what the science or the law allows. I don't 
think that the stormwater example is a posit, because you are 
essentially talking about things all within the same watershed 
and that have a hydrological connection.
    Senator Crapo. Good point.
    We would like to thank this panel for your attention to 
this issue and for coming here today. You are excused.
    Mr. Dunlop. Thank you for all your courtesy, Senator.
    Senator Crapo. Thank you.
    We would like to invite the next panel to come up. What we 
are going to do is get you seated. We are not even going to let 
you make your opening statements yet. Senator Inhofe is going 
to ask a question or two of one witness, and then we will 
recess.
    Senator Inhofe. Thank you. I appreciate that.
    Senator Crapo. While the next panel is coming up, I will 
introduce them. First is Michael Bogert, who is Counsel for the 
Governor of Idaho, a good friend of mine. Michael, welcome 
here. Next is Richard Hamann, Associate in Law at the 
University of Florida; Robert J. Pierce, President of Wetlands 
Science Application, Inc.; and Scott Yaich, who is the Director 
of Conservation Programs at Ducks Unlimited.
    Scott, you are the lucky guy that the Chairman wants to ask 
a question or two of before we break and run to the vote.
    Senator Inhofe. Mr. Chairman, I appreciate that. That is 
very accommodating. As you know, we have some commitments where 
I won't be able to come back.
    Mr. Yaich, I just want to get this thing on the record and 
get clarified in my own mind the position Ducks Unlimited. I 
was in shock when I saw you were going to be here testifying in 
the testimony that you had. Apparently, Ducks Unlimited has 
changed considerably in the last few years since my son has 
been president of a local chapter and all my kids are very 
active members. I have also been. I did not realize you are 
taking the positions that you are taking.
    Now, in the case of let's just say my neighboring State of 
Arkansas, where a lot of us go over there and hunt. We have 
very cooperative farmers over there. They are rice farmers and 
they flood their fields, which they have to do. But in order to 
accommodate the hunters, they leave the fields flooded so they 
can come in and hunt on their fields.
    Now, I would have to ask the question, and maybe the 
question should go to Mr. Hamann, if the drainage ditches on 
rice farms were considered jurisdictional, would the farmer 
need a permit before discharging any water containing 
pollutants? Let's see, let's do that for Mr. Hamann. Would you 
have any thoughts on that?
    Mr. Hamann. If they were jurisdictional, yes, it would 
require permits. But there is an exclusion for prior converted 
cropland, and there is an interpretation of wetlands that 
excludes areas that are allowed to go fallow for some period of 
time, or that are used in the production process. I think rice 
fields fall within that exclusion.
    Senator Inhofe. Of course, when they have to come and drain 
them after this period of time, whatever that is, after the 
season is over, and there are pollutants at that point that go 
in, which could come from waste from ducks or from any number 
of things, could that put at risk a farmer in terms of what he 
might have of any types of remedies?
    Mr. Hamann. Well, actually Congress has created an 
exclusion from the discharge definition for irrigation return 
flows and drainage from agricultural lands, which has actually 
caused quite a few problems, for example, in Florida, where 
drainage from sugar cane fields is polluting the Everglades and 
it is not regulated under the Clean Water Act. So the rice 
farmers are basically exempt.
    Senator Inhofe. Except that that regulation is for the 
purpose of irrigation. If they leave it irrigated for the other 
purposes, are you certain that that would not be considered a 
problem or exposure for that farmer?
    Mr. Hamann. The 11th Circuit recently held that there was 
no jurisdiction over those discharges in the case of drainage 
from sugar cane areas, which is not irrigation water either. 
The case is Fisherman Against Destruction of the Environment v. 
Closter Farms, 300 F. 3d 1294 (11th Cir. 2002).
    Senator Inhofe. Mr. Yaich, then you don't think there would 
be any reluctance on behalf of some of the farmers with this 
interpretation to allow people to come in and use that 
property? Is that your feeling?
    Mr. Yaich. Yes, there has not been that reluctance.
    Senator Inhofe. I am sorry?
    Mr. Yaich. There has not been that reluctance.
    Senator Inhofe. Well, but this is all fairly new. I mean, 
we are talking about now with the changes that we are 
contemplating and that are contemplated under some pending 
legislation. But you have answered my question and I appreciate 
it very much. Thank you.
    And Mr. Chairman, thank you for allowing me to ask those 
questions before the next vote.
    Senator Crapo. Thank you.
    Now that you have gotten seated and we have had a little 
bit of questioning, we will go vote and go into recess. We will 
be back as soon as we can. Thank you.
    [Recess.]
    Senator Crapo. The hearing will come to order. I appreciate 
everybody's patience. I have been informed that they are going 
to call another vote at 12:15 p.m., which is 20 minutes from 
now. So if you guys all stick to your 5 minutes, we might make 
it at least through your testimony.
    Let's start out. Mr. Bogert?

   STATEMENT OF L. MICHAEL BOGERT, COUNSEL, GOVERNOR OF IDAHO

    Mr. Bogert. Mr. Chairman, thank you for the invitation to 
speak to the committee today. My name is Michael Bogert. I am 
Counsel to Governor Kempthorne. Unfortunately, the Governor 
could not join the committee today, but he asked me to extend 
his warmest regards to yourself and the other members of the 
committee.
    Mr. Chairman and members, I appreciate the opportunity to 
give you and the distinguished Senators Governor Kempthorne's 
perspective on the SWANCC decision and what it means to our 
great State of Idaho.
    As an initial matter, Idaho is mindful that Section 101 of 
the Clean Water Act declares that it is the policy of Congress 
to recognize, preserve and protect the primary responsibilities 
and rights of States to prevent, reduce and eliminate pollution 
and to plan the development and use of land and water 
resources.
    Mr. Chairman, we are very comforted that Congress has 
enacted a statute that has the words ``rights of States'' in 
them, and that is the context by which we view the discussion 
this morning. This statutory declaration for Idaho is the 
ideological lens by which we will view any attention by 
Congress to the Clean Water Act in the aftermath of SWANCC.
    However, we would be remiss if we did not acknowledge how 
much we appreciate the chance to even offer the State's 
perspective on this important decision by the Supreme Court to 
the committee today, as well as to the Federal executive branch 
agencies wrestling with this complex issue.
    Through the advance notice of proposed rulemaking, or the 
ANPRM, which has been of much discussion this morning, we 
believe the President has signaled he is approaching this 
problem from a decidedly different direction. Through the 
ANPRM, the Bush Administration has stated that it does not have 
all the answers up front, but it wants to be sure to ask all 
the right questions early. Mr. Chairman, a little bit of 
humility from the Federal Government in this regard is greatly 
appreciated by our State.
    The Administration is also saying that it is keenly aware 
that the SWANCC decision will have an impact on key partners 
such as the States in Clean Water Act implementation, and that 
even before a proposed rule is in order, the Federal agencies 
want an idea of what looms on the horizons for its 
administrative decisionmaking. Governor Kempthorne appreciates 
this approach taken by the President. I have submitted the 
Governor's very brief comments on the ANPRM for purposes of 
today's record.
    To provide the committee with some very brief background, 
and as noted in our comments, Idaho does not presently 
administer a delegated Clean Water Act program under Section 
402 for NPDES permits. We are presently exploring whether an 
NPDES program makes sense for our State and if so, as of this 
moment, Idaho is not a participant in this familiar model of 
cooperative federalism. But that does not mean that we are not 
accomplished practitioners in Idaho of both cooperation and 
federalism.
    Addressing cooperation, just last week the Governor forged 
a second agreement in 3 years with the region's Governors on 
salmon recovery, and in this past legislative session in Boise, 
we paved the way under our law for Federal-State wolf 
management. So Mr. Chairman, as you are well aware, Governor 
Kempthorne's model very much is cooperation with the Federal 
Government.
    We are also pleased to hear today from the Assistant 
Attorney General that the Justice Department shares the values 
of partnering with the States to advance our mutual interests 
on environmental protection. Of course, on the federalism side, 
you will have no greater champion for States' rights than 
Governor Kempthorne.
    Indeed, one of the core values we bring to this debate is 
that the best achievable results in environmental regulation 
occur where the Federal Government not just joins, but partners 
with State and local decisionmakers to avoid the consequences 
of top-down regulation.
    Mr. Chairman, as the committee and Congress deliberate over 
its response to the SWANCC decision, we think that it is 
important to have a better understanding of the backdrop of the 
case, and I will briefly describe why the Supreme Court ended 
up granting certiorari in the first place.
    As has been discussed, the petitioner was a coalition of 
municipalities and they had been trying to secure a permit for 
a hazardous landfill during a time period beginning from the 
mid-1980's. They purchased a 533-acre site which once 
accommodated gravel and strip mining. They worked on this 
process, and they had received all the State and local zoning 
permits, in addition to a landfill development permit from the 
Illinois EPA, as well as passing review by the appropriate 
State Department of Conservation.
    Mr. Chairman, in the brief that the petitioners filed in 
the Supreme Court, they describe at length the mitigation 
process and the negotiations that they entered into. I commend 
this brief to the members of the committee and the Chair as an 
important component of this statement.
    Senator Crapo. Mr. Bogert, could you make a copy of that 
brief available for the record?
    Mr. Bogert. I would be pleased to do so, Mr. Chairman.xxx
    Senator Crapo. Thank you.
    Mr. Bogert. The petitioners asked the Army Corps of 
Engineers not once but on two separate occasions within a 
year's period whether the court had jurisdiction over this 
site. Each time, in successive occasions, the court responded 
it did not have jurisdiction over the landfill.
    But after being alerted by an environmental organization 
that the site may have been briefly home to some migratory 
birds, the Corps changed its mind, and as we all know, it 
invoked the Migratory Bird Rule, which by the way is neither a 
rule and barely deals with migratory birds, but that is for 
another moment, Mr. Chairman.
    Along the way, in addition to making its 404 permit 
applications, SWANCC obtains two separate water quality permits 
under Section 401 of the Clean Water Act, and then submitted 
their permit twice on two separate occasions, and both times 
the court ended up denying the permit. Probably believing that 
this was too much government, SWANCC decided to take their case 
all the way to the Supreme Court. There is no question that 
that fact circumstance was probably influential in the Court 
hearing the case in the first instance.
    Mr. Chairman and distinguished Senators, as you consider 
this issue it is vitally important that the past sins of the 
Federal Government in this context that I have just described 
not be borne on your progeny. The Governor would advise that 
the Congress exercise its Commerce Clause authority carefully, 
and ask if the answer really is extending the jurisdiction of 
the Federal Government to the curbs and gutters of our streets, 
as we have just described in the city of San Diego. We in Idaho 
do not think that is necessarily the best path forward.
    The other question also that lingers in our mind is if the 
Army Corps has the appropriate resources to deal with streets 
and gutters and ponds with birds in them. But it is vitally 
important that Congress consider what the Supreme Court 
actually said in SWANCC.
    One argument that we have heard today is that SWANCC was 
merely a regulatory interpretation case and that it is holding 
should be narrowly construed by the Agencies and Congress. But 
Mr. Chairman, the Supreme Court went out of its way in SWANCC 
to dust off its two major Commerce Clause cases, Lopez and 
Morrison, and indicated that by a hair's breadth, this decision 
could have very well gone in that direction as well.
    As Congress looks at how to deal with SWANCC, we would ask 
that the members be mindful of the Court's current Commerce 
Clause jurisprudence that lurks just closely nearby. From our 
vantage point in the Governor's office in Boise, the lessons of 
Lopez, Morrison and SWANCC are not that Congress necessarily 
cares more than the States do about guns in school, violence 
against women, or water pollution in general.
    Rather, Governor Kempthorne would submit to his former 
colleagues that real achievement in addressing these noble 
policy goals should include those in the framework of our 
Federal system of government who bring the most promise to 
achieving results. In our view, Mr. Chairman as you well know, 
those achievers are States such as Idaho.
    Thank you, Mr. Chairman, for my time this morning. I 
appreciate being here.
    Senator Crapo. Thank you very much, Mr. Bogert. As I 
mentioned briefly before, but I should have introduced you a 
little better. Mr. Bogert is a good friend of mine, a good 
friend and supporter of Idaho and our great Governor, Governor 
Kempthorne, and we thank you for being here.
    Mr. Hamann?

 STATEMENT OF RICHARD HAMANN, ASSOCIATE IN LAW, UNIVERSITY OF 
                            FLORIDA

    Mr. Hamann. Thank you, Chairman Crapo. I thank you for the 
opportunity to speak with you today about the decision in 
SWANCC and how it can be reconciled with the goals of the Clean 
Water Act. I have submitted written testimony and would ask 
that that be accepted into the record.
    Senator Crapo. The testimony of all witnesses will be 
accepted in the record.
    Mr. Hamann. SWANCC was a significant setback to the 
progress we have made as a Nation in protecting and restoring 
our water. It affects not only the protection of wetlands from 
dredging and filling, but the discharge of oil, toxics and 
conventional pollutants. It is critically important in a State 
like Florida where many of our most important wetlands and 
surface waters are not directly connected to navigable waters. 
Although Florida does regulate these so-called isolated waters, 
Federal regulation is an important backstop and supplement. I 
think that has been the opinion of most of the other States 
that apparently have commented on this issue. Furthermore, the 
rivers in North Florida come from Georgia and Alabama, where 
there are no protections for isolated waters, and much of our 
wildlife travels across State lines.
    The value of wetlands and the vulnerability of our waters 
are not defined by the traditional concepts of navigability. I 
believe that is why, although Congress used the term 
``navigable waters,'' it defined it as ``waters of the United 
States''. I believe the majority opinion in SWANCC gave 
inadequate weight to that definition, to the intent of the 
Clean Water Act, to its legislative history and its structure. 
I think it failed to give deference to the views of the expert 
Federal agencies, their ecological judgment, and it suggests 
the possibility at least of extreme new limits on Federal 
authority to regulate our Nation's waters based on concepts of 
limitations of the Commerce Clause and federalism. But it 
didn't do it. The actual holding of the case is much more 
limited. It held that the rule, as clarified and applied to the 
site, pursuant to the Migratory Bird Rule, exceeds the 
authority granted to respondents under the Clean Water Act.
    So the issue before the agencies and Congress is how to 
respond. The initial response of the agencies was to confine 
the case to its specific holding. Most of the lower courts have 
been doing that also, and the Department of Justice has been 
consistently arguing that position in litigation. This has 
significant advantages. There is at least the possibility that 
the Supreme Court will not extend this case beyond its specific 
holding.
    In that case, the regulatory definition of ``waters'' will 
have been weakened, but not critically. It will have been 
reduced, but not as significantly as it could be. I think it is 
important to retain that definition and related definitions 
such as ``adjacent'' because they have been tested and 
sustained and applied and used by people in the field for many 
years. On that basis, for those reasons I think it is premature 
to substantially revise it administratively.
    Congress could settle the issue relatively easily by simply 
removing this term ``navigable'' from the statute, and 
clarifying what the intent was. I think that would probably be 
the ideal solution. The constitutional issues would remain, of 
course, but it seems clear to me that the record would support 
the conclusion that the discharge of pollutants is an economic 
activity, and that interstate commerce depends on clean water, 
controlling floodwaters, the existence of wildlife, and other 
resource values that can be affected by the discharge of 
pollutants.
    There is at least the possibility of the agencies modifying 
the definitions to strengthen Clean Water Act jurisdiction. 
They could eliminate, for example, the need to show that the 
degradation of a particular water affects interstate commerce, 
and base their jurisdiction on the fact that dredging and 
filling is an economic activity that in the aggregate 
substantially affects interstate commerce. The current 
definition draws this need into the definition of those other 
waters which are subject to regulation.
    The agencies could clarify that tributaries include any 
system of artificial or natural streams, ditches, drains, 
swales, arroyos, aquifers, or other drainage features that are 
reasonably likely to convey water to navigable waters. Senator 
Crapo, you raised the issue earlier of the storm drains. There 
is a case from Florida that I cited in my written testimony, 
Eidsen, where a gentleman was dumping toxic sludge into storm 
drains that were then flowing into other waters. There was no 
jurisdiction under the Clean Water Act except for the fact that 
he was discharging to ``navigable waters''. They were able to 
bring an enforcement action against him based upon those 
definitions.
    The agencies could expand or clarify the definition of 
``navigable waters.'' It should include waters that are used or 
susceptible of being used for recreational purposes. Perhaps 
there is an opportunity to defer to States, many of which 
utilize a broader definition of what ``navigable waters'' means 
than you see in the Federal definition. They could define the 
concept of ``adjacency'' to ensure that any waters that bear a 
significant ecological relationship to navigable waters are 
regulated. The case law and the developing jurisprudence 
supports these definitions, and it may be better to let that 
play out a little bit further, and then go into a regulatory 
mode.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you, Mr. Hamann.
    Dr. Yaich?

 STATEMENT OF SCOTT YAICH, DIRECTOR OF CONSERVATION PROGRAMS, 
                        DUCKS UNLIMITED

    Mr. Yaich. Thank you, Mr. Chairman.
    My name is Scott Yaich and I am the Director of 
Conservation Programs at Ducks Unlimited's national 
headquarters in Memphis.
    I appreciate the opportunity to speak with you today on 
behalf of DU and our more than one million supporters. Our 
mission is to conserve, restore and manage wetland and 
associated habitats for North America's waterfowl and for the 
benefit they provide other wildlife and the people who enjoy 
and value them. We are a science-based conservation 
organization, so our perspectives on the issue of this hearing 
are grounded in the water-related sciences that we believe 
provide useful insights.
    Of the original 221 million acres of wetlands in the U.S., 
53 percent were lost by 1997. DU has long worked with voluntary 
incentive-based conservation programs such as those provided 
through the farm bill's conservation titles, and the North 
American Wetlands Conservation Act. With our many private and 
public partners, we have conserved almost 11 million acres.
    Despite our successes and those of many others, the Nation 
still loses over 100,000 acres of wetlands annually, which has 
a cumulative negative impact on waterfowl and on the Nation's 
water quality and related Federal interests.
    I can use the wetlands of the Prairie Pothole Region, which 
you see in this photograph here, the prototypical 
geographically isolated wetland, to illustrate our concerns. Of 
the 20 million potholes that once existed in the northern U.S., 
only about 7 million remain. Almost all of these wetlands are 
small, but the region is the most important duck breeding area 
in North America. One analysis suggested that duck production 
would decline by over 70 percent if all wetlands less than one 
acre were lost. Waterfowl are a valuable interstate resource 
and wetland losses far less than this would greatly impact 
waterfowl numbers and could result in closed waterfowl seasons 
with related impacts on the almost 3 million duck and migratory 
bird hunters who in 2001 spent $1.4 billion for hunting-related 
goods and services. Thus, DU and other sportsmen's 
organizations are very concerned about the potential impacts of 
any change that would lessen jurisdictional coverage of 
wetlands such as these.
    The Supreme Court's SWANCC decision invalidated one facet 
of the so-called Migratory Bird Rule as the sole basis for 
determining jurisdictional wetlands. This has led to 
uncertainty regarding Clean Water Act jurisdiction. However, in 
their SWANCC decision, the Court explicitly reaffirmed 
jurisdiction over navigable waters, their tributaries, and 
adjacent wetlands, and re-stated their observation in the U.S. 
v. Riverside Bayview Homes decision that, quote, ``Congress' 
concern for the protection of water quality and aquatic 
ecosystems indicated its intent to regulate wetlands 
inseparably bound up with the waters of the U.S.,'' further 
clarifying that, ``It was the significant nexus between the 
wetlands and navigable waters that informed our reading of the 
Clean Water Act in Riverside Bayview Homes.'' With these 
statements, the Court clearly viewed connection between 
wetlands and navigable waters as a critical determinant for 
Federal jurisdiction.
    In light of SWANCC, focus must be placed on the definitions 
of ``adjacent'' and ``significant nexus'' for assessing the 
relationship between geographically isolated wetlands and 
navigable waters. The Court implicitly recognized wetland 
function as an essential element of proximity in Federal 
jurisdiction, and accepted that adjacency presumes functional 
connections between wetlands and navigable waters.
    In light of the Court's use of these terms, it could be so 
to integrate them into the single concept of functional 
adjacency. Adjacency from a scientific standpoint cannot be 
viewed as being limited to physical proximity. To fulfill the 
Clean Water Act, there should be recognition of the direct 
functional connections of water and wetlands, groundwater, and 
flowing navigable waters.
    Well-known wetland functions such as surface water storage 
and flood abatement, groundwater recharge, and water quality 
maintenance have significant values. For example, New York City 
initiated a $250 million program to protect up to 350,000 acres 
of wetlands in the Catskills to protect the quality of its 
water supply as an alternative to spending $6 billion to $8 
billion constructing water treatment plants. Boston is 
acquiring 5,000 acres of wetlands in the Charles River 
watershed, rather than constructing a $100 million flood 
control dam. The Corps of Engineers determined that flood 
damages there would increase by $17 million per year if the 
8,400 acres of wetlands in the Charles River basin were 
drained, a wetland functional relationship was vividly 
illustrated in the Midwest floods of the 1990's.
    If functional linkages between wetlands and navigable 
waters are recognized when defining ``adjacency'' and 
``significant nexus,'' the Clean Water Act could contribute to 
achieving President Bush's goal of no net loss. However, if 
these terms are not defined in the hydrologic context, there 
will be significant negative impacts to wetlands and waterfowl 
populations. While DU strongly supports the use of incentive-
based programs for wetland conservation, they are unlikely to 
be funded at levels sufficient to offset potential wetland 
losses.
    We agree that clarification of jurisdictional wetlands and 
waters is important and overdue, and we believe that it should 
be rooted in science that can be expeditiously provided through 
administrative guidance processes. This could at least restore 
the level of wetlands protection that existed prior to SWANCC. 
In any case, any changes to the Act or its administration 
should only be undertaken if they strengthen protection of the 
Nation's wetlands.
    We appreciate this opportunity to present our views on an 
issue that is so central to our mission.
    Senator Crapo. Thank you, Dr. Yaich.
    Mr. Pierce?

  STATEMENT OF ROBERT J. PIERCE, PRESIDENT, WETLANDS SCIENCE 
                       APPLICATIONS INC.

    Mr. Pierce. Thank you, Mr. Chairman.
    With the concept that a picture is worth 1,000 words, what 
I would like to do, and I believe you have a set of color 
copies of these up there, is run through a quick slide 
presentation.
    For 30 years now, the Federal Government has been educating 
the public on what are wetlands and waters of the U.S., why 
they should be protected, and their value to society. Normally, 
they depict areas with standing water on them, lush vegetation, 
waterfowl, and wading birds. From the time of our earliest 
youth, in fact, people are indoctrinated that they should view 
wetlands as being in many cases exotic vegetation such as bald 
cypress, beavers, ducks, and plenty of standing water.
    If we go to the Corps' web sites today, we will find 
pictures like this of what the Corps considers to be wetlands. 
If we go to the regulated public, though, what we see is a 
vastly different thing. This is a shot from Maryland of a 
regulated wetland. This is a shot from New Mexico of a 
regulated wetland. This is a shot from California that the 
Department of Justice says is a regulated wetland. It is loaded 
with non-wetland plants; does not have hydric soils. It is 
loaded with ground squirrel burrows and, if you are wondering, 
ground squirrels do not have webbed feet.
    This is what the Corps shows on its Web site as being the 
waters of the U.S. that need to be regulated, the navigable 
waters. Here is another shot from a Corps web site. These are 
the things that are actually being regulated today. This is 
right over in Potomac, Maryland. On the left you can see the 
headwaters of this navigable water. It is Glenn Road, about 60 
feet up above that culvert. If we look downstream toward the 
natural stream, there is a ditch that flows on through.
    This was about 2 weeks after a 24-inch snowfall, and you 
can see that there is no water, even with snow melt occurring 
in this picture. But that is a navigable water regulated by the 
Corps of Engineers.
    These, too, are regulated ponds. They are actually 
constructed animal waste ponds that have been abandoned. They 
are in California. The one on the top has no vegetation. It is 
still considered a wetland by the Corps. The reason they are 
regulated is because they are approximately 100 feet from, not 
connected to, but 100 feet from this navigable water, which is 
a ditch. That navigable water in fact has been terminated down-
slope of the property because the Corps in another case said it 
was not regulated, and it was filled. So there is no actual 
connection, and yet those two ponds are jurisdictional today 
under the Clean Water Act.
    Here is the Estrella Fan in Maricopa County, Arizona. This 
is a regulated navigable water. In the last 9 years, there has 
only been a total of 9.5 hours of flow in Estrella Fan. That is 
.4 events per year. In fact, there has only been four times 
that it has flowed in the last 4 years; 99.9 percent of the 
time it is dry. The four events that did occur never reached 
the Gila River, let alone the Colorado River which is a 
navigable water, which gets to the point of water crossing 
States. There are many systems where the water will never reach 
another State. There are systems where it will, but that is 
something that needs to be taken into account and is not.
    Here is a regulated navigable water in Hemet, California. 
No gutters on this road, but we have roadside ditches. The 
ditches are considered navigable because the Corps says that 
they will intercept water that would otherwise be regulated. So 
the ditches become regulated.
    Here is a regulated navigable water in Washington, DC. It 
was 70-feet long. The headwaters of that is a parking lot, and 
it was composed of rubble. It was the drainage from that 
parking lot. It took the Corps of Engineers' headquarters to 
come out and convince the Baltimore District that that it 
should not be regulated as a navigable water.
    Here is a navigable water in Nogales, Arizona. The 
difference between this and many of the roads that occur in the 
desert part of the U.S. is infinitesimal.
    Now, one of the issues that needs to be addressed is the 
concept of ordinary high water mark. Here are three shots, one 
from Maryland, California and Idaho. The definition that the 
Corps now uses for ``ordinary high water mark,'' part of it 
says, ``a clear natural line impressed on the bank.'' If you 
notice in each of these, there are multiple lines clearly 
impressed by water on the bank. Which is the natural one? The 
Corps would regulated to the maximum extent out at the bank in 
each of those cases. The courts have said, however, that the 
ordinary high water mark is defined by something less than a 1-
year flow.
    Another statement in the Corps' regulations, ``in the 
absence of wetlands, the upstream limit of Corps jurisdiction 
also stops when the ordinary high water mark is no longer 
perceptible.'' In California, the South Pacific Division ruled 
that, ``I conclude that a District's policy position that a 
tributary connection can exist in the absence of a continuous 
ordinary high water mark is reasonable.''
    This is a navigable water in Eastern California, another 
shot of a regulated water in Eastern California. The deposition 
of the mud is what makes it constitute an ordinary high-water 
mark--no bed and bank--simply a little bit of mud from a 10-
year flood event.
    The question then, is, how far does adjacency go? Here is a 
shot of vernal pools in Northern California. We see a stream 
going down through the center of this. The question is, is it 
connected? By groundwater, probably not; there is not enough 
rainfall to flood these things and have it connected by 
groundwater.
    Here is a situation in Galveston, Texas. In the south-
central part of the United States, many Corps' districts 
regulate everything within the 100-year flood plain. The two 
areas marked in ``A'' are 100-year flood plains, so any 
isolated water body would be regulated there.
    This is sheet flow in Maryland. The Migratory Bird Rule has 
may have been vacated by SWANCC, but it has been replaced by 
the ``Migratory Molecule Rule.'' The Corps is now regulating 
when they say, ``follow the drop of water.'' If it is 
theoretically possible for a drop of water to reach an area, a 
navigable water, then it should be regulated.
    Why only stop at something that has certain plants? This is 
a wheat field. The water is going to get there and potentially 
pollute.
    This slide is from that same set that you referred to 
earlier. I think it sums it all up. That is a Corps of 
Engineers slide, and they have as many questions as the public 
does on what is jurisdictional.
    In conclusion, inconsistencies abound within the Corps 
Districts themselves and between different Corps Districts. 
Many definitions are not codified. They are simply put into the 
nationwide permit program. Ditches, ephemeral drains, waste 
ponds, ephemeral wet spots are not navigable waters. The Corps 
determined that in 1974 and issued a legal opinion on that. 
Chief Justice Rehnquist reiterated that in his opinion, and 
rulemaking is essential to clarify this for both the Corps 
regulators and the public.
    Senator Crapo. Thank you very much, Mr. Pierce.
    As you may have heard, a vote has been called. It is 
beginning to look like this may not be just a single vote, but 
we may be in a series of this kind of thing. So what I am going 
to do is to wrap up with a couple of conclusions. I am not even 
going to ask any of you any questions because I just don't have 
time.
    I apologize for that, because anybody who listened to the 
testimony here could tell there are a lot of interesting and 
important things we need to get into. I am going to submit and 
give other members of the committee opportunities to submit to 
you written questions which we would have asked had we had 
time. And I do want to invite you respond fully to those 
questions, and encourage you to give us further submissions in 
this context.
    It seems to me from the evidence and the testimony that we 
have taken today that we are very clearly at a point when we 
need to make a policy decision here in Congress. That policy 
decision I don't believe is whether we will seek to protect the 
wetlands of the United States. At least for myself, I am fully 
committed to that, and I think that every member of the 
Congress is fully committed to that, as are the American 
people.
    I happen to serve as the Chairman of the Forestry, 
Conservation and Rural Development Committee in the Agriculture 
Committee, where we put together a lot of the incentive 
programs that we have, like the Wetlands Reserve Program, the 
CRP Program and the like. As a result of that, I am very 
committed and aware of the different approaches that we have to 
protecting our wetlands. I can't remember if it was Mr. Hamann 
or Dr. Yaich who said that the incentive approach was great, 
but maybe not necessarily sufficient to accomplish the 
protection of our wetlands, which I agree with.
    The point I am getting at here is that we need to determine 
how we are going to approach the broad policy decision of how 
we will protect wetlands in the United States, both in terms of 
what types of and what correlations of Federal statutes are 
needed, and what relationship we have with the States in terms 
of the partnership that we need, in terms of protecting and 
managing the waters of the United States.
    To me, any further comments that you might be interested in 
making in that context in your written submissions would be 
deeply appreciated. As I said, we will be issuing you written 
questions, which I encourage you to respond to fully as well.
    I again want to apologize to you for the fact that because 
of the voting schedule, we are not going to be get into the 
usual give and take of the question and answer period. But I do 
want to assure you that your written testimony is going to be 
very carefully evaluated, as will be your answers to these 
questions. This committee is going to very carefully focus on 
these issues.
    Senator Jeffords, I have not voted yet, so I am going to 
have to wrap this up pretty fast. Did you want to make any 
final comments before we proceed?
    Senator Jeffords. I would like a few. I think we can make 
the vote.
    Senator Crapo. You haven't voted either?
    Senator Jeffords. No.
    Senator Crapo. Oh, good. We are in the same boat.
    Senator Jeffords. Don't worry about it. I will be very 
fast.
    On behalf of Senator Graham, who was necessarily absent 
today, I would like to extend my special welcome to Dr. Richard 
Hamann, who is here today from the University of Florida in 
Gainesville. I am pleased to have you here.
    Mr. Hamann, I would like to ask you a question I asked the 
earlier panel regarding the Migratory Bird Rule. Is there any 
mention in the SWANCC decision of the other prongs of the 
Migratory Bird Rule, or any statement that supports the legal 
interpretation made by EPA and the Corps in their guidance?
    Mr. Hamann. In terms of the application of the Migratory 
Bird Rule in the sense that it would allow jurisdiction over 
isolated wetlands simply because they are used as habitat by 
migratory birds, I think the SWANCC court ruled that out on 
that basis. But beyond that, they did not address the other 
issues. They did raise questions, but I believe that they could 
not get a majority to answer those questions as perhaps the 
Chief Justice would have desired in his opinion. So they only 
ruled that the Migratory Bird Rule for that site, as it 
involved the use by migratory birds, was invalid.
    Senator Jeffords. Mr. Yaich, so much of the focus of the 
discussion has been on the term ``isolated wetland.'' However, 
aren't some of these wetlands connected to groundwater? And 
could you please elaborate on how isolated wetlands interact 
with groundwater?
    Mr. Yaich. Yes, that is the gist of the issue in many ways. 
``Isolated'' in the SWANCC decision was usually preceded by 
``geographically isolated.'' But as I indicate in my full 
testimony and the comments to the ANPRM, there is abundant 
evidence that shows linkages between geographically isolated 
wetlands such as those that were illustrated in that 
photograph, and groundwater. And then there is a connection 
also documented between many of those connections, between 
groundwater and clearly navigable flowing waters. So for 
purposes of the Clean Water Act and dealing with water quality, 
there is a direct connection between many of the geographically 
isolated wetland, groundwater, and then the flowing navigable 
waters.
    Senator Jeffords. Isn't it true that impacts on most 
isolated wetlands can have impacts downstream on navigable 
waters, like rivers and lakes?
    Mr. Yaich. Yes, absolutely, because of the connections I 
just indicated, any pollutants that are in that water can be 
carried through there. A good local example might be the 
category of wetland called Delmarva Bays here on the peninsula 
shared by three States. Those isolated wetlands are connected 
to groundwater and there have been studies that show Delmarva 
Bay serves to reduce nitrogen that goes into Chesapeake Bay, 
which of course is one of the major issues with regard to 
Chesapeake Bay water quality.
    Senator Jeffords. I would like to defer my other questions.
    Senator Crapo. Before you came in, I indicated that we 
would submit written questions to the panel. So anything that 
you do not have time to ask now, we can submit.
    Senator Jeffords. I think our time is up. We have 4 
minutes.
    Senator Crapo. Four minutes to get over and vote. So again, 
I apologize to the panel. I wanted to get into some really 
lively discussion here, but we will continue this discussion in 
writing. I encourage you to continue to give us information as 
we proceed with this, because I do believe it is time for 
Congress to give a serious look to the overall paradigm within 
which we approach these issues.
    This hearing is adjourned.
    [Whereupon, at 12:30 p.m. the committee was adjourned, to 
reconvene at the call of the Chair.]
    [Additional statements submitted for the record follow:]

 Statement of Hon. Joseph I. Lieberman, U.S. Senator from the State of 
                              Connecticut

    Mr. Chairman and Senator Graham, thank you for holding this 
hearing. To me and to the overwhelming majority of Americans, 
protecting the nation's waters is of critical importance. That's the 
case for a very simple reason. Fresh, clean water is a basic need for 
people and for the planet. Without it, ecosystems are threatened. Those 
who use our waters for recreation or business purposes are put in 
harm's way. And ultimately, the public health of all Americans is 
endangered.
    The importance of clean water is what forged a bipartisan consensus 
for more than three decades in support of vigorous enforcement of the 
Federal Clean Water Act. And in my view, President Bush's plan to 
eliminate Federal Clean Water Act protections for the nation's isolated 
waters is just the latest in a series of assaults on this country's 
environment, including its water.
    It is certainly no secret that I am a vocal critic of this 
Administration's poisonous policies toward the environment. Over the 
last 2 years, we have seen President Bush launch an unprecedented 
effort to eliminate numerous environmental, health, and safety 
protections. We've been at the mercy of a rising tide of anti-
environmental policy: to allow drilling in the Arctic Refuge; weaken 
Clean Air Act new source review requirements for old, dirty power 
plants; weakly manage waste from large-scale concentrated animal 
feeding operations; exempt the Defense Department from complying with 
environmental rules and regulations; resist higher fuel economy 
standards and readily available technology that would reduce America's 
dependence on oil; thwart efforts to curb global warming; cut the 
budgets of Agencies responsible for administering the nation's 
environmental and natural resource protection laws; and throw out the 
core American tenet of ``polluter pays"--to name just a few.
    Just last week, we learned of an internal report, prepared by the 
Environmental Protection Agency (EPA) in February 2003, that provides 
irrefutable evidence of the Agency's abject failure to enforce the 
Clean Water Act. The report details extensive, repeated noncompliance 
by large industrial facilities, publicly owned treatment works, and 
Federal facilities--noncompliance that puts our nation's waters and 
public health at risk--and next to no Federal action to curb those 
rampant violations. According to the report, in fiscal year 2001, these 
large industrial, municipal, and Federal facilities discharged more 
than double their allowed amounts of toxic pollutants about half of the 
time. Rather than taking action, in the face of these abuses, 
government sat on its hands. The Federal Government took formal 
enforcement action in fiscal years 1999-2001 against fewer than a 
quarter of those deemed to be in serious violation on various grounds 
(the term of art is ``significant noncompliance''). And when the 
Federal Government did get around to enforcing the law, it was 
toothlessly fewer than half of its enforcement actions even resulted in 
a fine, and the fines that were levied averaged less than $6,000.00. 
Shockingly, EPA formal enforcement actions declined by 45 percent 
between fiscal years 1999 and 2001.
    Mr. Chairman, that is a murky record indeed--one that shows 
Washington relaxing in a polluted riverbed rather than fighting the 
current and trying to clean our waterways. If the Bush Administration 
continues at this rate, I fear that before long we will be back to 
where we started at the beginning of the environmental movement, with 
our rivers and streams catching fire from pollution, as they did in the 
1960's, before the Federal Government wakes up to the danger caused by 
its neglect.
    When we look closely at the subject of today's hearing, we see more 
disturbing tactics and tendencies on the part of the Bush 
Administration. In the case of Solid Waste Agency of Northern Cook 
County (SWANCC) v. U.S. Army Corps of Engineers, the United States 
Supreme Court ruled that the Federal Clean Water Act does not protect 
isolated waters that are intrastate and non-navigable, where the only 
basis asserted for such jurisdiction is the actual or potential use of 
the waters as habitat for migratory birds that cross State lines. This 
is the specific holding in the case--that the EPA and the Army Corps of 
Engineers could no longer protect such waterways under the Clean Water 
Act solely because they are used as a habitat for migratory birds. The 
court held that the agencies' reliance on migratory bird usage was 
contrary to congressional intent in the Clean Water Act. At the same 
time, it's important to note that the court's legal decision does not 
invalidate any longstanding regulatory or Constitutional basis for 
Federal protection of non-navigable, isolated, intrastate waters 
(isolated waters).
    An Administration committed to vigorously protecting our 
environment would read the ruling narrowly and continue to aggressively 
enforce our environmental laws. But this Administration, predictably, 
has used the ruling as an excuse. On January 15, 2003, EPA and the Army 
Corps of Engineers published guidance to their field staff and an 
advanced notice of proposed rulemaking in response to the SWANCC 
decision. And not surprisingly, the Bush Administration is considering 
using the decision as a rationale to push through a much more radical 
anti-environment agenda than the court decision required.
    The guidance, which was effective immediately, directed EPA and 
Corps staff to stop asserting Federal jurisdiction over any isolated 
waters on any basis without first obtaining EPA Headquarters' approval 
to do so. Likewise, the rulemaking sought public comment on what 
factors should provide a basis for asserting jurisdiction over any 
isolated waters. In other words, EPA decided to read the court's ruling 
in the broadest possible terms--which, conveniently, would require the 
EPA and the Corps to take as passive a role as possible toward these 
bodies of water.
    Mr. Chairman, I am not a pessimist for looking at this set of facts 
and thinking that the glass is half empty. With the environmental 
record of this Administration--with its penchant for bending over 
backward to protect industry but lifting little more than a finger to 
protect the environment and public health--that is simply a realistic 
response.
    Fortunately, the American people are wise to this backhanded and, 
shall we say, backwater attempt to open our waterways to pollution. The 
Federal Government has received more than 130,000 comments in response 
to the rulemaking notice--many, many of which, we understand, object to 
the Agency's plans to cutoff Federal Clean Water Act protections for 
these waterways. Opposition to the expansive rulemaking comes from 
citizens, public interest groups, environmental organizations, and such 
key State organizations as the Environmental Council of the States 
(Resolution Number 03-6 April 10, 2003) and the Association of State 
and Interstate Water Pollution Control Administrators (Letter Comment 
in EPA's Docket for the Rulemaking).
    What is at stake if the Clean Water Act does not protect these 
waters? A lapse in Federal authority could create a void in 
environmental protection that many States would find difficult to fill 
in these historically tight budgetary times. This could leave thousands 
of acres of isolated waters-including what has been estimated to 
include 30 percent to 60 percent of this nation's remaining wetlands--
at risk. Wetlands perform crucial functions for watershed and ecosystem 
health across the country, including flood risk reduction, water 
quality improvement, and filtration and recharge of surface and 
subsurface drinking water supplies.
    Also, as I believe we will hear more about in today's hearing, it 
is clear that so-called ``isolated'' waters, including wetlands, are 
rarely truly isolated because water moves in hydrologic cycles. This 
means that failure to protect isolated waters may have a significant 
adverse impact on the overall health of the watershed and ecosystem.
    In short, if these waters are left unprotected, the floodgates of 
pollution could, so to speak, open wide, and that could threaten public 
health in communities throughout America.
    I am keenly interested in the Bush Administration's rulemaking 
plans and response to the many public comments urging it to abandon 
these efforts to narrow the protections of the Clean Water Act. I urge 
the Administration to withdraw the current guidance and drop these 
rulemaking plans. Given its shameful record on environmental 
protection, however, I don't anticipate that this will happen.
    Congress therefore must reestablish the common and commonsense 
understanding of the Clean Water Act's scope to protect all the 
nation's waters. Earlier this year, I was pleased to join Senator 
Feingold, along with Senators Jeffords and Boxer, as an original 
cosponsor of S. 473, the Clean Water Authority Restoration Act. I look 
forward to working with members of the Senate on a bipartisan basis to 
enact this bill to restore the integrity of the Clean Water Act if and 
when it is necessary.
    Thank you, Mr. Chairman and Senator Graham.

                               __________
  Statement of Hon. Bob Graham, U.S. Senator from the State of Florida

    Mr. Chairman, today this subcommittee is holding a hearing of 
special significance. First, it is the first wetlands hearing in our 
subcommittee since we have unified Clean Water Act issues under our 
jurisdiction. Second, the issue of wetlands under the Clean Water Act 
is one of national importance.
    Wetlands, come in many forms, including swamps, fens, marshes, 
bogs, sandflats, sloughs, prairie potholes, playa lakes, to name a few. 
These areas are priceless resources because each of them performs 
irreplaceable services for the environment, and they do it for free. 
All we have to do is leave them alone and they do their job flawlessly, 
24-7. They nearer ask for a vacation or call in sick. They just work. 
Mankind, with all of our advanced science, cannot build workable 
substitutes for most wetlands, not at any cost.
    Today's hearing focuses on a particular type of wetland known as 
isolated, intrastate, nonnavigable waters, sometimes referred to as 
``isolated waters.'' Although they can look insignificant, isolated 
wetlands perform numerous functions. They provide habitat for aquatic 
species of plants and animals and drinking water for many others, they 
help recharge aquifers, and they provide stopover points for migratory 
birds in transit.
    The question before us is whether Federal authority under the Clean 
Water Act, as interpreted by Corps of Engineers in the Migratory Bird 
Rule, protects these isolated waters from destruction. The Supreme 
Court has said it does not. Therefore, it is up to us to either help 
the Environmental Protection Agency and the Corps of Engineers 
interpret their authority correctly, or to provide them with the 
authority they need.
    The Supreme Court does not deny that isolated waters perform a 
variety of important functions--that migratory birds travel interstate, 
that the loss of isolated waters could imperil the survival of certain 
species of migratory birds, or that significant economic factors rely 
on migratory birds. The only thing the Supreme Court has said is that 
the Migratory Bird Rule goes beyond the authority created by the Clean 
Water Act.
    I would suggest the reason the Clean Water Act was limited to 
``navigable waters'' is a function of earlier statutes, and the early 
Supreme Court rulings on the limitation of the commerce clause of the 
constitution. As legal historians will tell you, the first Federal 
statute dealing with water pollution was the Rivers and Harbors Act. 
The principal goal of that statute was ensure that commerce was not 
hindered by floating debris in the nation's rivers and harbors. In the 
years since the Rivers and Harbors Act, many new laws have been 
enacted.
    The original Clean Water Act was enacted in 1948 and became the 
basis for broad new efforts to address water pollution. That Act has 
been broadened repeatedly as additional needs and problems have been 
identified.
    Over the years the Supreme Court's interpretation of the commerce 
clause has also evolved. Of particular importance to this hearing is 
the concept of ``aggregation''--the idea that acts which are 
individually immune to Federal authority may become susceptible to such 
authority when considered ``in the aggregate.'' And I would suggest 
that the destruction of isolated waters is just such an issue. 
Individual isolated waters are typically intra-state, and destroying 
any one of them is unlikely to have a noticeable impact on interstate 
trade. So, when viewed individually, isolated waters do not seem to 
fall under Federal authority under the Commerce Clause. However, if 
enough of them are destroyed it is indisputable migratory birds will be 
devastated, and that would damage interstate commerce. For this reason, 
when viewed ``in the aggregate'', isolated waters do seem to be subject 
to Federal authority.
    I think that we are presented with a significant problem related 
wetlands protection in the Clean Water Act--one that this hearing 
should investigate fully and seek to remedy. During his election 
campaign, President Bush promised that there would be no net loss of 
wetlands under his administration. A majority of the States are in 
favor of restoring the previous or abiding by the narrower definition 
enunciated by the Supreme Court. Very few States are looking for 
further erosion of wetlands protection. I look forward to working with 
the subcommittee to help keep the President's promise.

                               __________
 Statement of Hon. Russell D. Feingold, U.S. Senator from the State of 
                               Wisconsin

    Mr. Chairman, I thank you for the opportunity to appear before you 
today, and I want to acknowledge the very generous and forthright 
assistance provided to me as I sought an opportunity to testify before 
the subcommittee on this matter by both the Chairman of the full 
committee, Senator Inhofe and the ranking member, Senator Jeffords, who 
is a cosponsor of legislation I have introduced to reaffirm Federal 
Clean Water Act jurisdiction, S. 473.
    I am pleased to be testifying on the topic of Federal jurisdiction 
over water under the Clean Water Act, Mr. Chairman, because, this is 
one of the most fundamental, most successful, and most popular 
environmental protection laws in our nation's history. In my experience 
as the lead sponsor of legislation on this issue in both the 107th and 
the current Congress, I can say that the debate over whether our 
Federal law should continue to recognize the interconnected nature of 
our water systems is a growing national discussion. I can also say that 
I believe it is a debate that is unnecessary, and it is one that 
Congress should end. We need to be clear that Congress intends to erase 
any lingering ambiguity; we intend to reconfirm the original intent of 
the Clean Water Act and protect our waters, rather than lose them. This 
hearing goes a long way to achieving that goal, and I commend you, Mr. 
Chairman, for being willing to seek confirmation of the state of 
Federal law on this matter.
    In the U.S. Supreme Court's January 2001 decision, Solid Waste 
Agency of Northern Cook County versus the Army Corps of Engineers, a 5 
to 4 majority limited the authority of Federal agencies to use what was 
called the migratory bird rule as the basis for asserting Clean Water 
Act jurisdiction over non-navigable, intrastate, isolated wetlands, 
streams, ponds, and other bodies of water.
    This decision, which the committee knows as the SWANCC decision, 
means that the Environmental Protection Agency and Army Corps of 
Engineers can no longer enforce Federal Clean Water Act protection 
mechanisms to protect wetlands solely on the basis that they are used 
as habitat for migratory birds.
    In its discussion of the case, as you will hear from other 
witnesses, the Court went beyond the issue of the migratory bird rule 
and questioned whether Congress intended the Clean Water Act to provide 
protection for isolated ponds, streams, wetlands and other waters, as 
it had been interpreted to provide for most of the last 30 years. While 
not the legal holding of the case, the Court's discussion has resulted 
in a wide variety of interpretations by Federal, State and local 
officials that jeopardize protection for wetlands, streams, and other 
waters. Wisconsin is fortunate in that, for regulatory matters, it 
falls entirely within the jurisdiction of the St. Paul District Corps 
of Engineers though we have three Corps districts: St. Paul, Detroit, 
and Rock Island, Il, that service our State. Other States aren't as 
lucky, and I have heard anecdotally that different Districts are giving 
different answers to questions about Clean Water Act jurisdiction after 
SWANNC. I hope the subcommittee will pursue that issue with the Corps 
today.
    Confusion about the proper scope of the Clean Water Act also exists 
within EPA. I noted with interest that, in March of this year, Senator 
Jeffords received a letter from EPA in response to a letter he had 
written asking whether Lake Champlain and its tributaries are still 
considered jurisdictional or not under the Clean Water Act. While EPA 
replied that Lake Champlain and all of its tributaries would continue 
to fall under the Clean Water Act's jurisdiction, the Agency's letter 
raises questions about whether EPA would assert jurisdiction over 
streams and other tributaries of major water bodies as well as over so-
called isolated, intrastate, non-navigable wetlands. The letter 
suggests that EPA's determination of Clean Water Act jurisdiction in 
those cases might not be uniform nationwide, but instead would be 
dependent upon the holdings of individual courts within a particular 
region.
    The regulated community is also concerned, Mr. Chairman. As you 
know, when a developer gets a permit from the Federal Government to 
destroy wetlands, they are required to mitigate them elsewhere. 
National Association of Mitigation Bankers is an association of 
businesses that constructs wetlands to meet the mitigation requirements 
of Corps of Engineers and EPA 404 wetlands permits. Many of the 
wetlands mitigation bankers create, though not all, are isolated, non-
navigable wetlands. Ironically, the Federal agency response to the 
SWANNC decision no longer provides Federal protection for some of the 
wetlands that Federal Government mandates required developers to 
construct.
    Within days of the SWANCC decision, constituents came to my town 
hall meetings asking for Congress to respond this decision immediately. 
Wisconsin became the first State to pass legislation to assume 
regulatory jurisdiction over wetlands left unprotected by the Supreme 
Court's decision. Wisconsin has 15,000 named lakes and ponds, 5.3 
million acres of wetlands and approximately 44,000 miles of streams. 
Wisconsin estimated that if SWANCC's holding limits jurisdiction over 
so-called isolated wetlands, more than 1.1 million acres of wetlands in 
Wisconsin would no longer have Federal protection. Our State's 
legislation has become the model for several States.
    The confusion over the interpretation of the SWANCC decision is 
growing, but not, I believe, because of the holding SWANNC case itself, 
but because of the manner in which Federal agencies are implementing 
the decision. On January 15, 2003, the EPA and Army Corps of Engineers 
published in the Federal Register an Advanced Notice of Proposed 
Rulemaking raising questions about the jurisdiction of the Clean Water 
Act. Simultaneously, they released a guidance memo to their field staff 
regarding Clean Water Act jurisdiction.
    The agencies claim these actions are necessary because of the 
SWANCC case. But both the guidance memo and the proposed rulemaking go 
far beyond the holding in SWANCC. The guidance took effect right away 
and has had an immediate impact. It tells the Corps and EPA staff to 
stop asserting jurisdiction over isolated waters without first 
obtaining permission from headquarters. Based on this guidance 
memorandum, waters that the EPA and Corps staff judge to be outside the 
Clean Water Act can be filled, dredged, and polluted without a permit 
or any other long-standing Clean Water Act safeguard.
    The rulemaking announces the Administration's intention to consider 
even broader changes to Clean Water Act coverage for our waters. 
Specifically, the agencies are questioning whether there is any basis 
for asserting Clean Water Act jurisdiction over additional waters, like 
intermittent streams. The possibility for a redefinition of our waters 
is troubling because there is only one definition of the term ``water'' 
in the Clean Water Act, so any change in the regulatory definition of 
``water'' will effect the entire law. The wetlands program, the point 
source program which stops the dumping of pollution, and the non-point 
program governing polluted runoff all depend on the same definition.
    If certain wetlands or other categories of water are treated as no 
longer protected under Section 404, then the law will fail to protect 
those same waters from having toxic waste, trash or raw sewage dumped 
in them under Section 402, or be protected against oil spills under 
Section 311, or be cleaned up under Section 303, or be protected from 
other activities that violate the Clean Water Act conducted in them as 
well.
    Using administrative action to eliminate a category of waters from 
Clean Water Act jurisdiction is contrary to the law and the purpose of 
the Act. The Clean Water Act was adopted over thirty years ago to 
address widespread and severe water pollution problems across the 
country. Congress determined that it could not be left solely to the 
States to ensure that every community in the nations had access to 
clean, safe waters. While the Act prohibited discharges of pollutants 
into ``navigable'' waters. Congress defined this term broadly as 
``waters of the United States.'' This broad definition was referred to 
repeatedly on the floor and in the relevant committees and on the floor 
of the House and Senate. The U.S. Senate reconfirmed the broad scope of 
the law again in 1977 when it rejected, by a strong bipartisan vote, a 
proposal to remove Federal protections over a smaller category of 
wetlands and waters than are included in the Administration's Advanced 
Notice of Proposed Rulemaking.
    Even while EPA and the Corps consider whether to conduct a 
rulemaking to rewrite the definition of waters, the U.S. Department of 
Justice is in Federal court defending the legal validity of the 
existing regulatory definition. Indeed, in recent briefs filed by the 
Justice Department, the Administration has argued forcefully that the 
broad definition of ``waters'' in the current rules is not only valid, 
it is necessary in order for the goal of the Clean Water Act to be met 
to make all of the nation's waters safe for fishing, swimming and other 
uses.
    In my view, Congress decided this debate over the scope of the 
Clean Water Act in 1972, and the renewed debate should end now. 
Congress needs to re-affirm the longstanding understanding of the Clean 
Water Act's jurisdiction to protect all waters of the U.S.--the 
understanding that Congress held when the Act was adopted in 1972--as 
reflected in the law, legislative history, and the regulations, 
practice, and judicial interpretations that existed for many years 
prior to the SWANCC decision.
    My proposed legislation does that, and it is a very simple bill. It 
adopts a statutory definition of ``waters of the United States'' based 
on the longstanding definition of waters in the EPA and Corps of 
Engineers' regulations. Second, it deletes the term navigable from the 
Act to clarify that Congress's primary concern in 1972 was to protect 
the nation's waters from pollution, rather than just sustain the 
navigability of waterways, and to reinforce that original intent. 
Finally, it includes a set of findings that explain the factual basis 
for Congress to assert its constitutional authority over streams, 
wetlands, ponds and other waters on all relevant Constitutional 
grounds, including the Commerce Clause, the Property Clause, the Treaty 
Clause, and Necessary and Proper Clause.
    As the committee knows, I feel that Congress needs to re-confirm 
the Clean Water Act's jurisdiction to protect all waters of the United 
States. I believe the legislation I have introduced does no more and no 
less than that, and I hope this hearing will provide the committee with 
justification for moving that measure forward. I thank you for the 
opportunity to share my views and those of my State.

                               __________
 Statement of Hon. G. Tracy Mehan, Assistant Administrator for Water, 
   Environmental Protection Agency and Hon. George S. Dunlop, Deputy 
Assistant Secretary of the Army for Policy and Legislation, Department 
                              of the Army

    Good morning, Mr. Chairman and members of the subcommittee. We 
welcome the opportunity to present joint testimony to you today on 
issues concerning Clean Water Act (CWA) jurisdiction over navigable 
waters. In keeping with your May 29, 2003, letter of invitation, our 
testimony will address the current regulatory and legal status of 
Federal jurisdiction in light of the issues raised by the Supreme Court 
ruling in Solid Waste Agency of Northern Cook County v. the U.S. Army 
Corps of Engineers, 531 U.S. 159 (2001) (``SWANCC''). In particular, 
our testimony will provide background information on our agencies' 
roles and responsibilities under the CWA, summarize the SWANCC 
decision, discuss our recently issued joint guidance in response to the 
SWANCC decision as well as our Advance Notice of Proposed Rulemaking 
(ANPRM), and then address some of the jurisdictional issues relating to 
the ' 404 regulatory program.

Overview of EPA and Corps of Engineers Clean Water Act Responsibilities
    The Environmental Protection Agency (EPA) and the U.S. Army Corps 
of Engineers (``Corps'') share responsibility for the Sec. 404 program 
under the CWA, which regulates discharges of dredged or fill material, 
helping to protect wetlands and other aquatic resources and maintain 
the environmental and economic benefits provided by these valuable 
natural resources. In addition, EPA administers or oversees 
implementation of numerous other provisions of the CWA. For example, 
EPA and approved Tribes or States issue permits under Sec. 402 for 
discharges of pollutants other than dredged and fill material, and EPA 
reviews and approves water quality standards developed by approved 
Tribes or States under Sec. 303.
    The Sec. 404 responsibilities are extensive. Fulfillment of the 
Corps day to day responsibilities in its regulatory program requires a 
staff of greater than 1200 and a budget in fiscal year 2003 of $137 
million. These resources are required each year to process more than 
80,000 individual and general permit authorizations, including any 
associated jurisdictional determinations.
    Under Sec. 404 of the CWA, any person planning to discharge dredged 
or fill material to ``navigable waters'' must first obtain 
authorization from the Corps (or a Tribe or State approved to 
administer the Sec. 404 program), through issuance of an individual 
permit, or must be authorized to undertake that activity under a 
general permit. Although the Corps is responsible for the day-to-day 
administration of the Sec. 404 program, including reviewing permit 
applications and deciding whether to issue or deny permits, EPA has a 
number of important Sec. 404 responsibilities. In consultation with the 
Corps, EPA develops the Sec. 404(b)(1) Guidelines, which are the 
environmental criteria that the Corps must apply when deciding whether 
to issue permits. Under those Guidelines, a discharge is allowable only 
when there is no practicable alternative with less adverse effect on 
the aquatic ecosystem, and appropriate steps must be taken to minimize 
potential adverse effects to the aquatic ecosystem and mitigate for 
unavoidable impacts.
    EPA and the Corps have a long history of working together closely 
and cooperatively in order to fulfill our important statutory duties on 
behalf of the public. In this regard, the Army and EPA have concluded a 
number of written agreements to further these cooperative efforts in a 
manner that promotes efficiency, consistency, and environmental 
protection. For example, in 1989 the agencies entered into a Memorandum 
of Agreement (MOA) setting forth an appropriate allocation of 
responsibilities between the EPA and the Corps for determining the 
geographic jurisdiction of the Sec. 404 program. That MOA was entered 
into in light of a 1979 U.S. Attorney General opinion (43 Op. Att'y 
Gen. 197) determining that EPA has the ultimate authority under the CWA 
to determine the geographic jurisdictional scope of the Act. The MOA 
provides that the Corps will perform the majority of the geographic 
jurisdictional determinations in the Sec. 404 program using guidance 
developed by EPA with input from the Corps. Typically such guidance at 
the national level has been jointly issued by our agencies.

SWANCC Decision
    SWANCC involved a challenge to CWA jurisdiction over certain 
isolated, intrastate, non-navigable ponds in Illinois that formerly had 
been gravel mine pits, but which, over time, attracted migratory birds. 
Although these ponds served as migratory bird habitat, they were non-
navigable and isolated from other waters regulated under the CWA.
    In SWANCC, the Supreme Court held that the Army Corps of Engineers 
had exceeded its authority in asserting CWA jurisdiction pursuant to 
Sec. 404(a) over isolated, intrastate, non-navigable waters under 33 
C.F.R. Sec. 328.3(a)(3), based on their use as habitat for migratory 
birds pursuant to preamble language commonly referred to as the 
``Migratory Bird Rule,'' 51 Fed. Reg. 41217 (1986). At the same time, 
the Court in SWANCC did not disturb its earlier holding in United 
States v. Riverside Bayview Homes, 474 U.S. 121 (1985) which found that 
``Congress' concern for the protection of water quality and aquatic 
ecosystems indicated its intent to regulate wetlands 'inseparably bound 
up with' `` jurisdictional waters. 474 U.S. at 134.
    ``Navigable waters'' are defined in Sec. 502 of the CWA to mean 
``waters of the United States, including the territorial seas.'' In 
SWANCC, the Court determined that the term ``navigable'' had 
significance in indicating the authority Congress intended to exercise 
in asserting CWA jurisdiction. After reviewing the jurisdictional scope 
of the statutory definition of ``navigable waters'' in Sec. 502, the 
Court concluded that neither the text of the statute nor its 
legislative history supported the Corps' assertion of jurisdiction over 
the waters involved in SWANCC.
    In SWANCC, the Supreme Court recognized that ``Congress passed the 
CWA for the stated purpose of 'restoring and maintaining the chemical, 
physical, and biological integrity of the Nation's waters' `` and noted 
that ``Congress chose to 'recognize, preserve, and protect the primary 
responsibilities and rights of States to prevent, reduce, and eliminate 
pollution, to plan the development and use (including restoration, 
preservation, and enhancement) of land and water resources.''' 
Expressing ``serious constitutional and federalism questions'' raised 
by the Corps' interpretation of the CWA, the Court stated that ``where 
an administrative interpretation of a statute invokes the outer limits 
of Congress' power, we expect a clear indication that Congress intended 
that result.'' Finding ``nothing approaching a clear statement from 
Congress that it intended Sec. 404(a) to reach an abandoned sand and 
gravel pit,'' the Court held that the ``Migratory Bird Rule'', as 
applied to petitioners' property, exceeded the agencies' authority 
under Sec. 404(a).
    Apart from Sec. 404, the jurisdiction of many other CWA programs 
also is dependent upon the meaning of ``navigable waters'' as defined 
in CWA Sec. 502. Thus, although the SWANCC case itself specifically 
involves Sec. 404 of the CWA, the Court's decision may also affect the 
scope of regulatory jurisdiction under other provisions of the CWA, 
including programs under 'Sec. 303 (water quality standards program), 
311 (spill program, as well as the Oil Pollution Act), 401 (State 
water-quality certification program), and 402 (National Pollutant 
Discharge Elimination System (NPDES) permitting program). For example, 
two significant U.S. Circuit Court of Appeals opinions interpreting 
SWANCC involved such other programs. Headwaters v. Talent Irrigation 
Dist., 243 F.3d 526, 534 (9th Cir. 2001) (Sec. 402); Rice v. Harken, 
250 F.3d 264 (5th Cir. 2001) (rehearing denied) (Oil Pollution Act).

Joint Guidance and Advance Notice of Proposed Rulemaking
    On January 10, 2003, following coordination with the Department of 
Justice, General Counsel from EPA and Army jointly signed clarifying 
guidance regarding the Supreme Court's decision in SWANCC. The guidance 
states that jurisdictional decisions will be based on Supreme Court 
cases, including Riverside Bayview Homes and SWANCC, relevant 
regulations, and applicable case law in each jurisdiction. Because it 
is guidance, it does not impose legally binding requirements on EPA, 
the Corps, or the regulated community, and its applicability depends on 
the circumstances. The guidance was provided to our field offices and 
also published as Appendix A to the Agencies' ANPRM in order to ensure 
its availability to interested persons and to help better inform public 
comment on the ANPRM.
    The guidance makes a number of key points with regard to assertion 
of CWA jurisdiction, providing that:
      Field staff should not assert jurisdiction over isolated 
wetlands and other isolated waters that are both intrastate and non-
navigable where the sole basis for asserting jurisdiction is based on 
the factors in the preamble language known as the ``Migratory Bird 
Rule``:
      Use as habitat by birds subject to Migratory Bird 
Treaties or which cross State lines;
      Use as habitat for endangered species; or
      Use to irrigate crops sold in commerce.
      Field staff should seek formal project-specific 
headquarters approval prior to asserting jurisdiction over isolated 
non-navigable intrastate waters based on factors listed in 33 C.F.R. 
Sec. 328.3(a)(3):
      Use by interstate or foreign travelers for recreational 
or other purposes;
      Production of fish or shellfish sold in interstate or 
foreign commerce; or
      Use for industrial purposes by industries in interstate 
commerce.
      Field staff should continue to assert jurisdiction over 
traditional navigable waters (and adjacent wetlands) and, generally 
speaking, their tributary systems (and adjacent wetlands).
      The guidance describes traditional navigable waters as 
waters that are subject to the ebb and flow of the tide, or waters that 
are presently used, or have been used in the past, or may be 
susceptible for use to transport interstate or foreign commerce.
    Finally, because case law interpreting SWANCC is still developing, 
the guidance supersedes the previous EPA/Corps (January 19, 2001) legal 
memorandum concerning SWANCC..
    In addition to the guidance, we published a joint ANPRM soliciting 
public comment, information and data on issues associated with the 
definition of ``waters of the U.S.'' in light of SWANCC. 68 Fed. Reg. 
1991 (January 15, 2003). Issuance of the ANRPM was an extra measure, 
not required by the Administrative Procedure Act, to provide an early 
opportunity for public comment on this important issue before the 
agencies decide how to proceed. It does not pre-suppose any particular 
substantive or procedural outcome.
    The ANPRM comment period ran for 90 days, closing on April 16th. It 
sought public input on the following regulatory issues:

      Whether factors listed in Sec. 328.3(a)(3)(i)-(iii) of 
the regulations (i.e., use of the water by interstate or foreign 
travelers for recreational or other purposes, the presence of fish or 
shellfish that could be taken and sold in interstate commerce, the use 
of the water for industrial purposes by industries in interstate 
commerce) or any other factors, provide a basis for CWA jurisdiction 
over isolated, non-navigable, intrastate waters;
      Whether the agencies should define ``isolated waters,'' 
and if so, what factors should be taken into account in the definition.

    The ANPRM also sought information on the effectiveness of other 
Federal or non-Federal programs for the protection of aquatic 
resources, as well as on the functions and values of wetlands and other 
waters that may be affected by SWANCC. In addition, it sought data and 
comments on the effect of no longer asserting jurisdiction over some of 
the waters (and discharges to those waters) in a watershed on the 
implementation of Total Maximum Daily Loads (TMDLs) and attainment of 
water quality standards. Finally, as is often the case with ANPRMs, we 
did not seek to limit comment only to the specific questions raised, 
but also solicited views as to whether any other revisions are needed 
to the existing regulations regarding which waters are jurisdictional 
under the CWA.

Public Response to Advance Notice of Proposed Rulemaking
    We received over 133,000 comments on the ANPRM by the close of the 
April 16th comment period. As we are still early in the process of 
reviewing and analyzing the comments received, the information that 
follows is at this point of a preliminary nature. Approximately 128,000 
of the comments appear to be the result of e-mail or write-in campaigns 
producing identical or substantially similar letters. Of the apparent 
5,000 unique or individual letters received, approximately 500 letters 
raise or discuss specific issues in some detail. The commenters 
included a number of different types of stakeholder groupings, 
including Tribes/States and related associations, local governments, 
academic, research and scientific associations, industry and the 
regulated public, non-profit organizations, and private citizens.
    The comments reflect a wide breadth of opinion, ranging from 
assertions that SWANCC affects only jurisdiction based solely on use by 
migratory birds that cross State lines to assertions that SWANCC limits 
CWA jurisdiction to navigable-in-fact waters and those tributaries and 
wetlands shown to have an actual effect on navigable capacity. Some 
commenters supported further rulemaking to clarify CWA jurisdiction, 
some favored clarification through use of guidance instead, while 
others supported no action at all or withdrawal of the current 
guidance. Some commenters expressed the view that the nature and extent 
of aquatic resource impacts was irrelevant to determining CWA 
jurisdiction, while others expressed concern for such impacts and the 
need to consider this when determining how to proceed. We also received 
comments from 4 Tribes and 42 different States on the ANPRM. A large 
number of these commenters provided information and data regarding the 
ecological value of various aquatic resources, including wetlands and 
ephemeral and intermittent streams.

Regulatory Status of Federal Jurisdiction Under Sec. 404 of the CWA
    Although the SWANCC decision did not invalidate any part of the CWA 
or of the regulations (the so-called ``Migratory Bird Rule'' as 
previously indicated is actually an excerpt from the preamble to the 
Corps 1986 regulations), it did have important implications for the 
Corps administration of the Sec. 404 CWA regulatory program, as well as 
implications for other CWA programs whose jurisdiction depends upon the 
meaning of ``navigable waters.'' This is because the Agencies have 
applied the ``Migratory Bird Rule'' criteria since 1986 as a basis of 
jurisdiction over aquatic area that were not readily identifiable as 
jurisdictional on some other basis.
    The Supreme Court's invalidation of the use of the Migratory Bird 
Rule as a basis for CWA jurisdiction over certain isolated waters has 
focused greater attention on CWA jurisdiction generally, and 
specifically over tributaries to jurisdictional waters and over 
wetlands that are ``adjacent wetlands'' for CWA purposes as we 
explained in testimony before the Subcommittee on Energy Policy, 
Natural Resources and Regulatory Affairs of the U.S. House Committee on 
Government Reform on September 19, 2002. The ANPRM , which solicited 
input from the public on the nature of, and necessity for, any change 
in the existing regulations, is the first step in the process of 
addressing the jurisdictional issues arising from the SWANCC decision.
    The Joint Guidance that was published as Appendix A of the ANPRM 
provided useful information on CWA jurisdiction to the public and 
regulatory staff, but further information is needed to provide the 
degree of certainty that Agency personnel and the regulated public 
deserve, and to ensure the fair and effective administration of the 
CWA. Any inconsistencies in Sec. 404 jurisdictional determinations 
highlight our executive branch responsibility to provide this clarity. 
Responsible stewardship requires that we ensure that Federal resources 
are applied effectively and consistently to maximize environmental 
protection in a manner consistent with the CWA.
    As was previously indicated, the ultimate direction of any proposed 
rulemaking has not been predetermined, and will be influenced 
significantly by the public comment on the ANPRM. Our general goals 
will be to provide clarity for the public and to ensure consistency 
among CWA jurisdictional determinations nationwide.

Conclusion
    We wish to emphasize that the agencies remain fully committed to 
protecting all CWA jurisdictional waters, including adjacent wetlands, 
as was intended by Congress. Safeguarding these waters is a critical 
Federal function because it ensures that the chemical, physical, and 
biological integrity of these waters is maintained and preserved for 
future generations. We will carefully consider all the comments and 
information received in response to the ANPRM. Our goal in moving 
forward is to clarify what waters are properly subject to CWA 
jurisdiction in light of SWANCC and afford them full protection through 
an appropriate focus of Federal and State resources in a manner 
consistent with the Act.
    We also wish to emphasize that although the SWANCC decision and our 
testimony today focus on Federal jurisdiction pursuant to the CWA, 
other Federal or State laws and programs may still protect a water and 
related ecosystem even if that water is no longer jurisdictional under 
the CWA following SWANCC. SWANCC did not affect the Federal 
Government's commitment to wetlands protection through the Food 
Security Act's Swampbuster requirements and Federal agricultural 
program benefits and restoration through such Federal programs as the 
Wetlands Reserve Program (administered by the U.S. Department of 
Agriculture) grant making programs such as Partners in Wildlife 
(administered by the Fish and Wildlife Service), the Coastal Wetlands 
Restoration Program (administered by the National Marine Fisheries 
Service), the Five Star Restoration and National Estuary Program 
(administered by EPA), and the Migratory Bird Conservation Commission 
(composed of the Secretaries of Interior and Agriculture, the 
Administrator of EPA and Members of Congress). In addition, some States 
have authority under State law to regulate activities in waters that 
are beyond the jurisdiction of the CWA. About 15 States have had for a 
number of years programs to protect at least some of these waters, and 
Wisconsin and Ohio have expanded their programs since the SWANCC 
decision. The President has requested an increase in funding for 
Wetlands Programs Grants in the Fiscal Year 2004 budget, which will 
provide a financial incentive for other Tribes and States to provide 
broader and more effective protection for their waters.
    Thank you for providing us with this opportunity to present this 
testimony to you. We appreciate your interest in these important 
national issues that are of mutual concern.

                               __________
  Statement of Hon. Thomas L. Sansonetti, Assistant Attorney General, 
                       U.S. Department of Justice

                              INTRODUCTION

    Chairman Inhofe, Senator Jeffords, and members of the subcommittee, 
I am pleased to be here today to discuss the Department of Justice's 
response to the Supreme Court's decision in Solid Waste Agency of 
Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 
(2001), colloquially known as ``SWANCC.'' In my testimony today, I will 
describe our work in connection with the Clean Water Act (``CWA''), the 
interpretation of which was at issue in SWANCC, and the efforts that we 
have made to ensure that the positions that we have taken in litigation 
are consistent with SWANCC. I will also highlight some of the work that 
we are doing with the States to improve State-Federal coordination and 
cooperation in wetlands protection and enforcement.
    At the outset, I would like to provide the subcommittee with a 
perspective on the breadth of our work. The Environment and Natural 
Resources Division has a docket of well over 10,000 pending cases and 
matters, with cases in every judicial district in the Nation. The 
majority of our cases are defensive, i.e., where we are defending the 
United States or particular Federal agencies when they have been sued. 
Although some of these defensive cases involve the CWA, many more do 
not. In fact, we litigate cases arising from well over 70 different 
environmental and natural resource statutes, including the 
Comprehensive Environmental Response, Compensation and Liability Act 
(``CERCLA''), the National Environmental Policy Act, the National 
Forest Management Act, the Coastal Zone Management Act, and the 
National Historic Preservation Act.
    Even if one were to focus only on the affirmative enforcement part 
of our docket, wetlands cases form only a very small subset of those 
cases. We have many other enforcement actions focusing on violations of 
other provisions of the CWA, not to mention of the Clean Air Act, the 
Safe Drinking Water Act, the hazardous waste laws and a variety of 
other environmental laws. This enforcement work has resulted in 
significant gains for public health and the environment across the 
United States.
    However, I will focus my testimony today on our CWA cases, in 
particular those involving wetlands.

               AN OVERVIEW OF OUR CLEAN WATER ACT DOCKET

    The Department of Justice's primary role with regard to the CWA is 
to represent the Environmental Protection Agency (``EPA''), the Army 
Corps of Engineers (``Corps''), and any other Federal agency that might 
be involved in litigation that arises pursuant to the CWA. This 
litigation can be either defensive or affirmative.
    As the word suggests, in defensive litigation we defend Federal 
agencies that are being sued in connection with the CWA. Such actions 
can take a variety of forms. For example, affected parties will 
sometimes bring an action against the Corps when it makes a case-
specific decision, such as the grant or denial of a CWA permit. 
Regulated entities, environmental interests, and public entities such 
as municipalities will also seek judicial review when the Corps and EPA 
make broader policy decisions such as those embodied in a rulemaking. 
Parties may also sue EPA for failure to perform a non-discretionary 
duty under the CWA. Finally, Federal agencies can also be sued for 
discharging pollutants into waters of the United States if they have 
not complied with the applicable requirements of the CWA. In my 
Division, which is the Environment and Natural Resources Division, we 
have an Environmental Defense Section that specializes in defending the 
actions of Federal agencies, including EPA and the Corps, when they are 
challenged in court in connection with the CWA.
    We also bring affirmative litigation under the CWA. By 
``affirmative litigation,'' I am referring to enforcement cases, which 
can be either civil or criminal. Three sections in the Division handle 
CWA enforcement actions. Civil enforcement cases are generally handled 
by our Environmental Enforcement Section, with the exception of cases 
brought pursuant to CWA section 404, which are handled by our 
Environmental Defense Section or by U.S. Attorney's Offices. Criminal 
enforcement of the CWA is handled by our Environmental Crimes Section, 
usually in conjunction with local U.S. Attorney's Offices.
    CWA civil judicial enforcement actions generally begin with a 
referral or investigation from another Federal agency, whether it is 
EPA or the Corps, regarding alleged violations of the CWA. Often by the 
time we receive a referral, the agency in question has exhausted all 
avenues for resolving the dispute administratively, and has carefully 
considered whether judicial enforcement is the appropriate course of 
action. Upon receiving the agency's recommendation, we conduct our own 
internal, independent inquiry and analysis to determine whether there 
is sufficient evidence to support the elements of the offense and 
whether the case is otherwise appropriate for judicial action. If we 
determine that judicial enforcement is warranted, we also explore 
possibilities for achieving settlement of the alleged violations 
without litigation as appropriate.
    I refer to ``judicial enforcement'' for a reason. The vast majority 
of environmental violations, including CWA-type violations, are 
addressed and resolved by State and local governments. In the wetlands 
area, most Federal enforcement of the CWA occurs at the administrative 
level and is carried out by the EPA and the Corps, and does not involve 
the Department of Justice. In this regard, I commend the Corps for 
implementing an administrative appeals process that allows landowners 
to seek further review of jurisdictional determinations. This process 
helps to ensure nationwide consistency in the implementation of the CWA 
and is yet another means by which disputes over CWA jurisdiction may be 
resolved before a matter gets to the point of potential litigation, 
which is when the Department of Justice would get involved.
    In sum, the Division's work is only a small, albeit important, part 
of CWA implementation and enforcement more generally. For instance, in 
the last 5 years, the United States has filed on average 14 new wetland 
civil enforcement cases each year, with half of those cases being 
settled at the time of filing.

                         OUR RESPONSE TO SWANCC

    SWANCC was an example of defensive litigation. In that case, the 
Corps of Engineers had asserted jurisdiction over a series of small 
ponds in Illinois, which the record indicated were isolated, 
intrastate, and non-navigable, and determined that the CWA required 
that the petitioner in that case, the Solid Waste Agency of Northern 
Cook County, needed to obtain a permit for construction of a solid 
waste landfill. The basis for the Corps' assertion of jurisdiction over 
the isolated ponds was evidence that the ponds provided habitat for a 
large number of migratory bird species that cross interstate lines. 
However, the Supreme Court ruled that the Corps had exceeded its 
statutory authority by requiring a permit for the filling of those 
ponds. In particular, the Court held that the Corps' practice of 
relying on the so-called ``Migratory Bird Rule'' (which is really not a 
rule but a preamble) to assert jurisdiction over such non-navigable, 
intrastate, isolated waters was contrary to Congress' intent in the 
Clean Water Act.
    Just as with any other Supreme Court case, we have sought to ensure 
that the legal positions taken on behalf of the Federal Government in 
litigation are consistent with SWANCC, regardless of where a case 
arises or which agency is involved in a particular case. Accordingly, 
after SWANCC was decided, the Division conducted a comprehensive review 
of its entire docket of Clean Water Act litigation. We carefully 
scrutinized any case that involved isolated waters, the Migratory Bird 
Rule, or any theory analogous to the Migratory Bird Rule, to determine 
whether SWANCC had undermined the basis for asserting Clean Water Act 
jurisdiction in that case. If we determined that the basis for 
jurisdiction in a particular case was undermined by SWANCC, we took 
appropriate action. For example, in Borden Ranch Partnership v. U.S. 
Army Corps of Engineers, in conjunction with EPA and the Corps, we re-
examined the basis for jurisdiction over the one isolated vernal pool 
which had been destroyed and over which the court had determined that 
there was jurisdiction, and notified the Ninth Circuit that we were 
withdrawing our enforcement claim regarding that particular vernal 
pool.
    In addition to taking the necessary steps to ensure that our 
existing cases were consistent with SWANCC, we established a process 
for ensuring that the positions we take in all SWANCC-related 
litigation going forward are internally consistent and appropriately 
coordinated within the Federal Government. Thus, in addition to the 
probing review of all of our prospective enforcement cases that I 
described earlier, we devote particular attention in our Clean Water 
Act enforcement cases to whether there is a factually and legally sound 
basis, consistent with SWANCC, for asserting jurisdiction over the 
aquatic resources in question before deciding to proceed. We carefully 
review such referrals or investigations to determine whether to proceed 
with judicial enforcement. We have similarly applied careful scrutiny 
to SWANCC-related arguments that we make in our defensive litigation.
    Since SWANCC was decided in January 2001, the United States has 
filed briefs in at least 27 cases in which the scope of geographic 
jurisdiction under the Clean Water Act was a significant issue. These 
cases involve issues arising under the Section 402 pollution discharge 
permit program, the Section 311 program addressing oil discharges and 
the Oil Pollution Act, as well as the Section 404 program. We have made 
considerable efforts to review and coordinate each and every one of the 
briefs filed in those cases. In particular, we have assigned a team of 
attorneys with expertise in wetlands issues and the Clean Water Act to 
review all briefs addressing important SWANCC-related issues that are 
filed by the various trial and appellate sections within the Division. 
In addition to ensuring that the basic positions taken in the those 
briefs are internally consistent, our attorneys have also made great 
efforts to coordinate our positions with the appropriate agencies, 
primarily EPA and the Army Corps of Engineers. Moreover, our attorneys 
have worked proactively and cooperatively with U.S. Attorney's Offices, 
to share our experiences and expertise, and to ensure that the United 
States is speaking with one voice in the Federal courts around the 
country.
    As I mentioned before, the SWANCC decision clearly precludes 
reliance on use by migratory birds as the sole basis for CWA 
jurisdiction over isolated, non-navigable, intrastate waters and calls 
into question whether any of the other factors in the Migratory Bird 
Rule is a valid basis for asserting jurisdiction. In addition, the 
reasoning of that decision raised uncertainty as to whether there 
remains any basis for jurisdiction under the other rationales in the 
``(a)(3)'' provision in the agencies' regulation defining ``waters of 
the United States,'' particularly the extent to which the agencies may 
rely upon the ``(a)(3)'' factors for purposes of regulating non-
navigable, intrastate, isolated waters. Indeed, the effect of SWANCC on 
this aspect of the regulations is one of the subjects of the Advance 
Notice of Proposed Rulemaking and associated guidance issued by the 
Department of the Army and EPA on January 15, 2003. My colleagues from 
the Army and EPA will be addressing their work on this rulemaking in 
their testimony. But I can tell you that in none of our post-SWANCC 
cases have we relied upon the Migratory Bird Rule or any analogous 
theory under the ``(a)(3)'' provision as a basis for defending CWA 
jurisdiction over a particular site. To the extent that SWANCC raised 
serious doubts about any claims that we were making in litigation that 
was pending at the time SWANCC was decided, we withdrew or modified 
those claims accordingly, as I noted above.
    Our careful examination of our cases has paid off with success in 
the courts. Of the 27 cases referred to earlier in my testimony in 
which we have filed SWANCC-related briefs, 22 have resulted in judicial 
decisions, and 17 of those decisions have been in favor of the United 
States. However, the post-SWANCC case law remains unsettled as we are 
involved in at least nine SWANCC-related cases in the Courts of Appeals 
for the Fourth, Fifth, Sixth, Seventh, and Ninth Circuits. With regard 
to these cases, I would be pleased to make available to the 
subcommittee any brief of the United States that it requests.
    I would like to mention another facet of our post-SWANCC 
activities: working cooperatively with the States. One of the basic 
teachings of SWANCC is that not every wetland or other aquatic area in 
the country is an appropriate subject of Federal regulation under the 
Clean Water Act. Since the decision in SWANCC, some States, such as 
Wisconsin and Ohio, have enacted legislation providing authority to 
address aquatic resources not subject to Federal regulatory 
jurisdiction under the CWA. Other States are considering such 
legislation or are exploring ways to use existing regulatory and non-
regulatory authorities and programs to address these aquatic resources. 
We have made great strides to improve Federal-State cooperation and 
coordination in environmental protection generally, and in connection 
with SWANCC, we are redoubling our efforts in this regard.
    In particular, in December 2002, we hosted a national conference 
and training course on wetlands protection and enforcement, designed in 
cooperation with several State associations, EPA and the Corps, to 
facilitate Federal-State partnerships in this important area. The 
conference, which took place in the Department of Justice training 
facility, attracted government officials from approximately two-thirds 
of the States, including representatives of State environment and 
natural resources agencies, State attorneys general offices, and even 
some State legislatures. As the conference's keynote speaker, I 
stressed the importance of Federal-State collaboration and cooperation 
in wetlands protection and enforcement in a time of dwindling 
government resources at both the Federal and State levels. One of the 
primary purposes of the conference was to encourage States to take a 
hard look at their existing State-law authorities that may be used to 
protect wetlands not subject to Federal jurisdiction following SWANCC 
and other Federal court decisions, and to facilitate the exchange of 
information regarding new and innovative methods of addressing wetlands 
protection at the State level. We look forward to continuing this 
dialog with our State colleagues, and to continue to explore ways that 
we can work together to protect this Nation's wetlands.

                               CONCLUSION

    In closing, I would like to assure the subcommittee that the 
Department of Justice takes seriously its obligation to protect public 
health and the environment and to enforce and defend the existing laws. 
As I have described in greater detail above, we work hard to ensure 
that the positions we take in litigation with respect to SWANCC are 
consistent and coordinated with our client agencies, which is our 
practice with all our litigation. I would be happy to answer any 
questions that you may have about my testimony.

                                 ______
                                 
Responses of Attorney General Thomas Sansonetti to Additional Questions 
                          from Senator Inhofe

    Question 1. In the SWANCC decision the Supreme Court stated, ``It 
was the significant nexus between the wetlands and ``navigable waters'' 
that informed our reading of the CWA in Riverside Bayview Homes. 
Indeed, we did not ``express any opinion'' on the ``question of the 
authority of the Corps to regulate discharges of fill material into 
wetlands that are not adjacent to bodies of open water. . . . `` Id., 
at 131-132, n. 8. In order to rule for respondents here, we would have 
to hold that the jurisdiction of the Corps extends to ponds that are 
not adjacent to open water. But we conclude that the text of the 
statute will not allow this.''
    In your testimony you state, ``Just as with any other Supreme Court 
case, we have sought to ensure that the legal positions taken on behalf 
of the Federal Government in litigation are consistent with SWANCC, 
regardless of where a case arises or which agency is involved in a 
particular case.''
    Since the Supreme Court's decision in SWANCC, has the Justice 
Department in any enforcement or defensive litigation asserted that a 
Federal agency has jurisdiction over waters or wetlands which are not 
adjacent to open water?
    Response. The relevant regulations of the Environmental Protection 
Agency (EPA) and the Army Corps of Engineers (ACE) define ``waters of 
the United States'' for purposes of the Clean Water Act (CWA) to mean 
(1) navigable-in-fact waters; (2) interstate waters; (3) all other 
waters, the use, degradation, or destruction of which could affect 
interstate or foreign commerce; (4) impoundments of waters of the 
United States; (5) tributaries of any of the above; (6) the territorial 
seas; and (7) wetlands adjacent to any of the above. See, e.g., 33 
C.F.R. 328.3(a). Only subpart (3) of this regulatory definition was 
involved in SWANCC. None of the affirmative or defensive cases that the 
Department of Justice has litigated since SWANCC, with the exception of 
the matters listed below in response to the last question, have 
involved subpart (3) waters. Rather, the cases have involved navigable-
in-fact waters, tributaries of navigable-in-fact waters, and wetlands 
adjacent to each.

    Question 2. Traditionally, open waters have meant waters that are 
free from physical obstruction and hence open to navigation by the 
public. In addition to the use of the term open waters, the Court also 
emphasized the original interpretation by the Corps that ``[i]t is the 
water body's capability of use by the public for purposes of 
transportation or commerce which is the determinative factor.'' 
Moreover, the Court explicitly stated, ``The term ``navigable'' has at 
least the import of showing us what Congress had in mind as its 
authority for enacting the CWA: its traditional jurisdiction over 
waters that were or had been navigable in fact or which could 
reasonably be so made.'' Such statements appear to limit Federal 
regulatory jurisdiction to the same waters which are subject to Federal 
navigational servitude.
    Does the Justice Department believe that the SWANCC decision limits 
Federal jurisdiction under Section 404 to waters subject to Federal 
navigational servitude?
    Response. The question before the Court in SWANCC was whether the 
Corps of Engineers had exceeded its statutory authority under the Clean 
Water Act by asserting jurisdiction over isolated, non-navigable, 
intrastate waters based on the use of those waters as habitat by 
migratory birds. As discussed above, the Supreme Court addressed only 
the ``other waters'' subpart of the regulatory definition of ``waters 
of the United States.'' See 33 C.F.R. 328.3(a)(3). Moreover, the Court 
did not overrule its prior decision in Riverside Bayview Homes, in 
which the Court held that Clean Water jurisdiction extends to wetlands 
adjacent to other waters. Non-tidal wetlands, of course, are not 
typically subject to the navigational servitude.

    Question 3. In your testimony you stated that, ``in none of our 
post-SWANCC cases have we relied upon the Migratory Bird Rule or any 
analogous theory under the ``(a)(3)'' provision as a basis for 
defending CWA jurisdiction over a particular site.'' This statement 
coupled with your previous statement regarding the Justice Department's 
role in ensuring that the Federal Governments legal positions are 
consistent with SWANCC would suggest that the regulations found in 33 
CFR ' 328.1(a)(3) [sic] are inconsistent with the SWANCC decision.
    Does the Justice Department believe that in order to be fully 
consistent with the SWANCC decision that Corps regulations defining 
waters for purposes of jurisdiction under Section 404 must be revised?
    Response. What, if any, revisions to the regulations are necessary 
or appropriate is a determination for EPA and the Army Corps of 
Engineers to make in the first instance. Those agencies issued an 
advance notice of a proposed rulemaking on that issue on January 15, 
2003, and a decision not to proceed with rulemaking on December 16, 
2003.
                                 ______
                                 
Responses of Attorney General Thomas Sansonetti to Additional Questions 
                         from Senator Jeffords

    Question 1. In the SWANCC Guidance, the Corps and the EPA direct 
field staff not to assert jurisdiction over ``isolated, intrastate, 
non-navigable waters'' based upon any of the factors of the migratory 
bird rule. Your testimony indicates that the Department of Justice, 
since the SWANCC case, has not relied upon the Migratory Bird Rule or 
any analogous theory under the ``(a)(3)'' provision as a basis for 
defending CWA jurisdiction over a particular site. The SWANCC decision 
only rejected one part of the migratory bird rule, and did not discuss 
the other elements, including the use of a water by endangered or 
threatened species or the use of a water for irrigation of crops to be 
sold in interstate commerce. On which elements of the SWANCC decision 
is the Department of Justice basing its rejection of all elements of 
the Migratory Bird Rule and the ``(a)(3)'' prevision? Where in the 
SWANCC decision is there is any mention of the other prongs of the 
migratory bird rule, or any statement that supports that legal 
interpretation?
    Response. In none of our post-SWANCC cases have we relied upon the 
Migratory Bird Rule, or any analogous theory under the ``(a)(3)'' 
provision, as a basis for defending CWA jurisdiction over a particular 
site. The continued viability of the other prongs of the Migratory Bird 
Rule and the elements of (a)(3) following SWANCC are issues that are 
appropriately considered by EPA and the Corps of Engineers in the first 
instance.

    Question 2. In your testimony, you indicate that the Department of 
Justice conducted a comprehensive review of the entire docket of Clean 
Water Act litigation in response to SWANCC. If you determined that the 
basis for jurisdiction in a particular case was undermined by SWANCC, 
you ``took appropriate action.'' In your testimony, you provided the 
Borden Ranch Partnership v. U.S. Army Corps of Engineers example in 
which you withdrew an enforcement claim regarding a particular vernal 
pool. Please provide the committee with a complete list of all other 
actions the Department took regarding your docket of Clean Water Act 
litigation after conducting the comprehensive review described in your 
testimony.
    Response. SWANCC v. Corps of Engineers (7th Cir. and Northern 
District of Illinois)--On remand to the 7th Circuit, the United States 
filed a statement that because the only asserted basis for regulatory 
jurisdiction was the Migratory Bird Rule, the Court of Appeals should 
remand the matter to the District Court for the entry of judgment in 
favor of plaintiff. Instead, however, the Court of Appeals accepted 
intervenor's request that the District Court be ordered to consider 
whether alternative bases for regulating plaintiff s landfill under the 
CWA exist. We then took the position in District Court that the Corps 
did not intend to assert jurisdiction over the SWANCC landfill and that 
judgment should be entered in favor of plaintiff. However, the District 
Court instead ordered the parties to file briefs regarding any 
remaining bases for CWA jurisdiction. The parties subsequently agreed 
to a stipulated dismissal of the lawsuit, and no such briefs were 
filed.
    United States v. Angelo Tsakopoulos (also known as Borden Ranch v. 
Corps of Engineers) (9th Circuit)--This CWA 404 civil enforcement 
action involved the ``deep-ripping'' of wetlands. After trial, the 
District Court imposed a $500,000 civil penalty and required mitigation 
with respect to a number of CWA violations. One set of violations 
identified by the District Court involved an isolated vernal pool that 
served as habitat for the vernal pool fairy shrimp, a threatened 
species. Upon appeal, after SWANCC was decided, we withdrew the portion 
of our enforcement action involving that vernal pool. Subsequently, 
upon remand, the District Court revised the civil penalty down to 
$486,040 to account for the withdrawal of that vernal pool claim.
    United States v. Portrait Homes Construction Co. (District of South 
Carolina)--Prior to SWANCC, the parties in this CWA 404 civil 
enforcement action had lodged a consent decree requiring the defendant 
to pay a $10,000 civil penalty, and to conduct restoration with respect 
to the filling of 0.63 acres of isolated wetlands. After SWANCC, the 
United States withdrew the consent decree and voluntarily dismissed the 
complaint.
    Forest Guardians v. United States Army (District of New Mexico)--
This CWA citizen suit alleged that the Army violated section 402 by not 
having an NPDES permit for discharges of treated sewage into an 
isolated playa on the White Sands Missile Range. After SWANCC, the 
parties stipulated to the dismissal of the complaint with prejudice.
    United States v. Cargill, Inc. (Northern District of California)--
This CWA 402 civil enforcement action involved the disposal of salt-
processing wastes in a bermed non-wetland area located near Mowry 
Slough and the San Francisco Bay. After SWANCC, the United States 
voluntarily dismissed its enforcement action.

                               __________
     Statement of L. Michael Bogert, Counsel to Idaho Goveror Dirk 
                               Kempthorne

    Mr. Chairman and distinguished members of the of the committee: My 
name is Michael Bogert, and I am Counsel to Idaho Governor Dirk 
Kempthorne.
    Unfortunately, the Governor could not join the committee today, but 
he asked me to extend his warmest regards to his good friends in the 
Senate.
    Mr. Chairman and members, I appreciate the opportunity to give you 
and the distinguished Senators on the committee Governor Kempthorne's 
perspective on the SWANCC decision and what it means to the State of 
Idaho.
    As an initial matter, Idaho is generally comforted by that section 
101 of the Clean Water Act declares that ``it is the policy of Congress 
to recognize, preserve, and protect the primary responsibilities and 
rights of States to prevent, reduce, and eliminate pollution [and] to 
plan the development and use of land and water resources.''
    This statutory declaration, for Idaho, is the ideological lens by 
which we will view any attention by Congress to the Clean Water Act in 
the aftermath of the SWANCC decision.
    However, we would be remiss if we did not acknowledge how much we 
appreciate the chance to even offer our perspective on this important 
decision by the Supreme Court to the committee today, as well as to the 
Federal executive branch agencies wrestling with this complex issue.
    Through the advance notice of proposed rulemaking--or ANPR--the 
President has signaled he is approaching this problem from a decidedly 
different direction.
    Through the ANPR, the Bush Administration has stated that it does 
not have all the answers up front, but it wants to sure to ask all of 
the right questions. And Mr. Chairman, a little humility by the Federal 
Government on this is a good thing.
    The Administration is also saying that it is keenly aware that the 
SWANCC decision will have an impact on key partners such as the States 
in Clean Water Act implementation, and that even before a proposed rule 
is in order, the Federal agencies want an idea of what looms on the 
horizon for its administrative decisionmaking.
    Governor Kempthorne appreciates this approach taken by the 
President.
    I have submitted the Governor's very brief comments on the ANPR for 
purposes of today's record.
    To provide the committee with some very brief background, Idaho 
does not presently administer a delegated Clean Water Act program under 
section 402 for National Pollutant Discharge Elimination System (NPDES) 
permits.
    We are presently exploring whether an NPDES program makes sense for 
our State, so, as of this moment, Idaho is not a participant in this 
familiar model of ``cooperative federalism.''
    But that doesn't mean we are not accomplished practitioners of both 
cooperation and federalism.
    Addressing cooperation, just last week we forged a second agreement 
in 3 years with the region's Governors on salmon recovery, and this 
past legislative session we paved the way under our law for Federal/
State wolf management.
    We are pleased to hear today from the Assistant Attorney General 
that the Justice Department shares the value of partnering with the 
States to advance our mutual interest on environmental protection.
    On the federalism side, you will hear no greater champion for 
State's rights than Governor Kempthorne.
    Indeed, one of the core values we bring to this debate is that the 
best achievable results in environmental regulation occur where the 
Federal Government not just joins, but partners with State and local 
decisionmakers to avoid the consequences of top-down regulation.
    Our experience in Idaho is that the best results are achieved from 
the ground up.
    Accordingly, our first inclination is to reject the notion that in 
Idaho, there is suddenly a regulatory ``void'' that must be filled by 
the Federal Government in light of the SWANCC decision.
    We have often found in discussions with some constituencies that 
when the topic of State control over environmental programs is 
mentioned, there is a fundamental distrust of putting States in the 
driver's seat.
    Governor Kempthorne categorically rejects that premise, and if 
there is any doubt about the commitment of the Great State of Idaho to 
controlling water pollution, let me provide the committee with the 
following legislative prose from our State water quality control 
statute:
    ``The legislature, recognizing that surface water is one of the 
State's most valuable natural resources, has approved the adoption of 
water quality standards and authorized the director of the department 
of environmental quality to implement these standards. [I]t is the 
purpose of this chapter to enhance and preserve the quality and value 
of the surface water resources of the State of Idaho .
    In consequence of the benefits to the public health, welfare, and 
economy, it is hereby declared to be the policy of the State of Idaho 
to protect this natural resource by monitoring and controlling water 
pollution.''
    Governor Kempthorne signed this legislation in 2001, and I doubt a 
stronger commitment to preventing water pollution can be found in any 
State statute.
    But as the committee and Congress deliberate over its response to 
the SWANCC decision, it is important to have a better understanding of 
the backdrop of the case and why the Supreme Court ended up taking the 
case in the first place.
    The petitioner, a coalition of municipalities, had been trying to 
secure a non-hazardous landfill site during the mid-1980's. They 
purchased a 533-acre site which once accommodated gravel and strip 
mining.
    In the decade plus long process of working on the project, the 
coalition, known as SWANCC, received all the necessary State and local 
zoning permits, in addition to a land fill development permit from the 
Illinois EPA, as well as passing a review by the Illinois Department of 
Conservation, who approved their mitigation plan for certain bird 
species.
    The petitioners asked the Army Corps of Engineers not once, but on 
two separate occasions within a year's period whether they needed 
permits under section 404 of the Clean Water Act. Each time the Corps 
responded that they had no jurisdiction over the landfill site.
    Then, when alerted by an environmental organization that the site 
may have briefly been home to some migratory birds, the Corps changed 
its mind and asserted that under the ``migratory bird rule,'' the 
landfill site included ``waters of the United States'' and that a 
section 404 permit was necessary.
    SWANCC then applied for the section 404 permit and was denied on 
two separate occasions. Along the way, the coalition obtained two 
separate water quality permits under section 401 of the Clean Water Act 
from the State agencies with responsibility over those programs.
    Nonetheless, the Corps twice denied the section 404 permit even 
though several years earlier they believed they had no jurisdiction 
whatsoever over the land fill.
    Those were the facts the Supreme Court had before them when they 
considered the migratory bird rule, and the rest is now history in the 
Supreme Court Reporter.
    Mr. Chairman and Distinguished Senators, as you consider this 
issue, it is vitally important that the past sins of the Federal 
Government I have just described not be born on your progeny.
    Exercise your Commerce Clause authority carefully, and ask if the 
answer is really extending the jurisdiction of the Federal Government 
to the curbs and gutters of our streets, as is apparently occurring in 
San Diego? We don't think this is necessarily the part forward.
    Also, does the Corps have the resources necessary to implement such 
a program?
    However, it is vitally important that Congress consider what the 
Supreme Court said in SWANCC.
    One argument is that SWANCC was merely a regulatory interpretation 
case and that its holding should be narrowly construed by the agencies 
and Congress.
    However, the Supreme Court went out of its way to dust off its two 
major Commerce Clause cases, Lopez and Morrison, and indicated that 
this decision also could have gone in that direction.
    As you formulate a response to the SWANCC decision, you should be 
mindful that the Court's current Commerce Clause jurisprudence lurks 
nearby.
    From our vantage point in the Governor's Office in Boise, Idaho, 
the lessons of Lopez, Morrison and SWANCC are not that Congress cares 
more than States about guns in school, violence against women, or water 
pollution.
    Rather, Governor Kempthorne would submit to his former colleagues 
that real achievement in addressing those noble policy goals should 
include those in the framework of our Federal system of government who 
bring the most promise to achieving results.
    In our view, those achievers are States such as Idaho.
    Thank you Mr. Chairman and members.

                                 ______
                                 
                               Attachment

                       DIRK KEMPTHORNE, GOVERNOR
                                                     April 16, 2003
The Honorable Christine Todd Whitman, Administrator
Environmental Protection Agency
c/o Water Docket
Mailcode 4101T
1200 Pennsylvania Ave., NW
Washington, DC 20460

Re: Docket ID No. OW-2002-0050--Advance Notice of Proposed Rule Making 
on the Clean Water Act Definition of ``Waters of the United States''
    68 Fed. Reg. 1991 (Jan. 15, 2003) and 68 Fed. Reg. 9613 (Feb. 28, 
2003)

Dear Administrator Whitman: The State of Idaho\1\ herby submits the 
following comments on the Advance Notice of Proposed Rule Making 
(ANPRM), 68 Fed. Reg. 1991 (Jan 15, 2003), and 68 Fed. Reg. 9613 (Feb. 
28, 2003)(extension of comment deadline to April 16, 2003), on the 
following issues as posed by the United States Environmental Protection 
Agency and the United States Army Corps of Engineers:
---------------------------------------------------------------------------
     \1\ For purposes of these comments, the ``State of Idaho'' 
consists of Governor Dirk Kempthorne, the Governor's Office of Species 
Conservation (OSC), the Idaho Department of Fish and Game (IDFG), the 
Idaho Department of Water Resources (IDWR), and the Idaho Department of 
Environmental Quality (IDEQ).
---------------------------------------------------------------------------
    1. Whether, and, if so, under what circumstances, the factors 
listed in 33 CFR [Sec. Sec. ]328.3(a)(3)(i)-(iii) (i.e., use of the 
water by interstate or foreign travelers for recreational or other 
purposes, the presence of fish or shellfish that could be taken and 
sold in interstate commerce, the use of the water for industrial 
purposes by industries in interstate commerce) or any other factors 
provide a basis for determining CWA jurisdiction over isolated, 
intrastate, non-navigable waters?
    2. Whether the regulations should define ``isolated waters,'' and 
if so, what factors should be considered in determining whether a water 
is or is not isolated for jurisdictional purposes?
I. Introduction
            A. Overview of Regulatory Infrastructure
    1. Brief Overview of the Clean Water Act
    The Clean Water Act (CWA or Act), was intended to ``restore and 
maintain the chemical, physical and biological integrity of the 
Nation's waters.'' 33 U.S.C. Sec. 1251(a). Federal authority to 
regulate waters of the United States under the CWA stems from the 
Commerce Clause of the Constitution and extends to ``all waters which 
are currently used, or were used in the past, or may be susceptible to 
use in interstate or foreign commerce `` See 33 C.F.R. 
Sec. 328.3(a)(1).
    Section 404 of the CWA defines ``waters of the United States'' in 
detail, based primarily on interstate or foreign commerce connections 
(which can include use by interstate or foreign travelers for 
recreation, among other things). Existing section 404 regulations 
include as waters of the United States ``all other waters such as 
intrastate lakes, rivers, streams (including intermittent streams), 
mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, 
playa lakes, or natural ponds, the use, degradation or destruction of 
which could affect interstate or foreign commerce .'' 33 C.F.R. 
Sec. 328.3(a)(3).
            B. Overview of the SWANCC Decision
    1. Facts
    In Solid Waste Agency of Northern Cook County v. United States Army 
Corps of Engineers, 531 U.S. 159 (2001), (SWANCC), a consortium of 23 
suburban Chicago cities and villages developed plans for a disposal 
site for baled nonhazardous solid waste. The location for the site was 
an abandoned sand and gravel pit operation between Cook and Kane 
counties in Illinois.
    Before operations could begin, the consortium, SWANCC, had to 
secure numerous county and State permits. During this process, SWANCC 
contacted the Corps to determine whether a Federal landfill permit was 
necessary since the operation included filling some permanent and 
seasonal ponds. The Corps initially determined that it lacked 
jurisdiction under Sec. 404(a) of the Clean Water Act, which grants the 
Corps ``the authority to issue permits 'for the discharge of dredge or 
fill material into navigable waters at specified disposal sites.''' 33 
U.S.C. Sec. 1344(a).
    The Northern Illinois Nature Preserves Commission informed the 
Corps that a number of migratory birds frequently occupied the site. 
The Corps reversed its previous jurisdiction decision and asserted 
jurisdiction under the ``Migratory Bird Rule'' (MBR)\2\ an attempt by 
the Corps to clarify the actual reach of 404(a) jurisdiction to include 
waters that ``are or would be used as habitat by other migratory birds 
which cross State lines.'' The formal decision by the Corps determined 
that the seasonally ponded, abandoned gravel mining depressions located 
on the project site, while not wetlands, did qualify as ``waters of the 
United States.''
---------------------------------------------------------------------------
     \2\See 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986). The MBR states 
that Sec. 404(a) jurisdiction extends to intrastate waters: ``a. 
[w]hich are or would be used as habitat by birds protected by Migratory 
Bird Treaties; or b. [w]hich are or would be used as habitat by other 
migratory birds which cross state lines . . . .''
---------------------------------------------------------------------------
    The Corps refused to issue a section 404(a) permit, after 
determining jurisdiction, despite the fact that SWANCC secured the 
required water quality certification from the Illinois Environmental 
Protection Agency. The Corps maintained that SWANCC had not established 
its proposal as the least environmentally damaging, most practicable 
alternative for disposal of nonhazardous solid waste; that SWANCC's 
failure to set aside sufficient funds to remediate leaks posed an 
unacceptable risk to the public's drinking water supply; and that the 
impact of the project upon area-sensitive species was unmitigatable 
since a landfill surface cannot be redeveloped into a forested habitat.
    On appeal, the Seventh Circuit Court of Appeals analyzed the 
constitutional question, holding that Congress has the authority to 
regulate such waters based upon ``the cumulative impact doctrine, under 
which a single activity that itself has no discernible effect on 
interstate commerce may still be regulated if the aggregate effect of 
that class of activity has a substantial impact on interstate 
commerce.'' 191 F.3d 845, 850 (7th Cir. 1999).
    The Court of Appeals then turned to the regulatory question and 
held that the CWA reaches as many waters as the Commerce Clause allows 
and, relying on an earlier Commerce Clause ruling, it therefore 
followed that respondents' ``Migratory Bird Rule'' was a reasonable 
interpretation of the Act. See id. at 851-52.
            2. The Decision in SWANCC
    The Supreme Court, in granting certiorari, discussed the contours 
of the CWA, including the Corps' expansive jurisdictional view that 
section 404(a) extends to waters that ``are or would be used as habitat 
by other migratory birds which cross State lines'' under the MBR. The 
Court concluded that the Migratory Bird Rule was not fairly supported 
by the CWA.
    The Supreme Court refused to follow the Corps expansive 
interpretation of its jurisdiction under section 404(a) the Clean Water 
Act. The articulated issue before the Court was ``whether the 
provisions of section 404(a) may be fairly extended to [an abandoned 
sand and gravel pit in Northern Illinois which provided habitat for 
migratory birds], and, if so, whether Congress could exercise such 
authority consistent with the Commerce Clause.'' Id. at 162. The 
Supreme Court answered that the Clean Water Act could not be so 
expanded.
    The SWANCC decision thus eliminates CWA jurisdiction over isolated 
waters that are intrastate and non-navigable where the sole basis for 
asserting CWA jurisdiction is the actual or potential use of the waters 
as habitat for migratory birds that cross state lines in their 
migration patterns.

II. Comments
            A. The Importance of Isolated Waters
    1. Why Are Isolated Waters Important?
    In arid and semi-arid regions, isolated waters provide fresh water 
oases for wildlife and function as stepping stones for migrating 
waterfowl, shorebirds and song birds. Isolated waters are found 
throughout Idaho from small desert pools and springs to forest ponds 
and wet meadows to subalpine lakes.
    Isolated waters are important for the same reasons that other 
wetlands are important--because they provide crucial habitat for many 
fishes, wildlife and plant species. Wetlands are important for water 
quality renovation, flood water storage, shoreline stabilization, 
sediment retention, and as vital habitat for numerous fish, wildlife 
and plant species. Some isolated waters are especially important 
breeding habitats for amphibians and continental waterfowl populations.
    2. What is a ``Jurisdictional Wetland?''
    Currently, for purposes of jurisdiction under section 404 of the 
CWA, an area must meet all three parameters used to define a wetland to 
be considered a wetland. These include (1) presence of wetland 
vegetation, (2) presence of wetland soils, and (3) wetland hydrology. 
33 C.F.R. Sec. 328.3(b). There is no official lower size threshold for 
jurisdiction (i.e., all wetlands that meet the three parameters may be 
considered). For practical purposes, the Corps in Idaho uses 20 feet in 
diameter as a minimum size if the wetland is surrounded by upland or 
agricultural lands.
    If a number of smaller wetlands were found in a mosaic with other 
types of land (upland or agricultural land, for example) then the 
mosaic could be considered for jurisdictional purposes even if the 
individual wetlands were smaller than 20 feet in diameter. Under 
current guidelines (post-SWANCC), recommendations from the Corps field 
offices go to the District office for review before the Corps asserts 
jurisdiction over isolated wetlands.
            B. The Idaho Perspective on the SWANCC Issues
    1. The Idaho Department of Environmental Quality
    The Idaho Legislature has provided to the Idaho Department of 
Environmental Quality (IDEQ) broad authority to develop a system to 
safeguard the quality of the waters of the State, including authority 
to adopt and enforce rules relating to the discharge of effluent into 
the waters of the State, and to adopt and enforce State water quality 
standards that designate uses and provide criteria to protect those 
uses. Idaho Code Sec. 39-105(e); Sec. Sec. 39-3601--39-3624.
    In providing this authority to the IDEQ, the State legislature very 
broadly defined ``waters or water body'' to mean ``all accumulations of 
surface water, natural and artificial, public and private, or parts 
thereof which are wholly or partially within, flow through or border 
upon this State.'' Idaho Code Sec. 39-3602(28). See also Idaho Code 
Sec. 39-103(16) (defining ``water'' almost identically).
    While providing IDEQ authority to regulate water quality with 
respect to a very broad definition of waters of the State, the 
Legislature also expressed the intent for DEQ to fully meet the goals 
and requirements of the Federal Clean Water Act, but through rules not 
impose requirements beyond those of the Federal Clean Water Act. It is 
unclear, in light of the legislative definition of ``waters,'' whether 
this provision in State law limits IDEQ to regulating only those waters 
that are regulated under the CWA.
    If this provision does limit IDEQ to regulating only within the 
limits of Federal jurisdiction under the CWA, the SWANCC decision and 
its progeny, as well as any Federal rulemaking that defines CWA 
jurisdiction, will control the scope of Idaho's water quality 
authority.
    2. The Idaho Department of Fish and Game
    The Idaho Department of Fish and Game (IDFG) has no statutory 
authority to regulate wetlands or the CWA.
    However, IDFG personnel review stream alteration permits and 
section 404 permit applications, including field inspections, and 
provide recommendations to the regulatory agency on permit terms and 
conditions. Although IDFG's recommendations are not binding, they often 
result in reduced impacts to wetlands and water quality. The SWANCC 
decision will not directly impact IDFG programs other than reducing the 
number of permit applications reviewed and may reduce some benefits to 
wildlife in Idaho.
    3. The Idaho Department of Water Resources
    Any resulting modifications to the Clean Water Act jurisdiction 
resulting from the U.S. Supreme Court's decision in SWANCC will not 
directly impact any of IDWR's programs.
    Under Idaho's Stream Channel Alteration Act, Idaho Code 
Sec. Sec. 42-3801--42-3813, IDWR's jurisdiction is limited by the 
definition of ``stream channel'' which means ``a natural watercourse of 
perceptible extent, with definite bed and banks, which confines and 
conducts continuously flowing water.'' Idaho Code Sec. 42-3802(d). This 
definition would not be affected by a change in the definition of 
``waters of the United States'' under the CWA.
    The Waste Disposal and Injection Well program, Idaho Code 
Sec. Sec. 42-3901--42-3919, administered by IDWR, requires the issuance 
of a permit to authorize the construction or use of any waste disposal 
and injection well. The act defines ``aquifer'' to mean ``any geologic 
formation that will yield water to a well in sufficient quantities to 
make production of water from the formation feasible for beneficial 
use, except when the water in such formation results solely from 
injection through a waste disposal and injection well.'' Idaho Code 
Sec. 42-3902(1). This program would not be affected by a change in the 
definition of ``waters of the United States'' under the CWA.
            C. Question One:
    Whether, and, if so, under what circumstances, the factors listed 
in 33 CFR 328.3(a)(3)(i)-(iii) (i.e., use of the water by interstate or 
foreign travelers for recreational or other purposes, the presence of 
fish or shellfish that could be taken and sold in interstate commerce, 
the use of the water for industrial purposes by industries in 
interstate commerce) or any other factors provide a basis for 
determining CWA jurisdiction over isolated, intrastate, non-navigable 
waters?
    Some isolated waters provide important habitat and water sources 
for some species of fish and wildlife and associated recreation.
    Migratory birds, particularly shorebirds and waterfowl, use 
isolated wetlands such as playa lakes as resting and feeding locations 
during migrations. Some isolated wetlands in Idaho are streams and 
contain sensitive species of fish, amphibians and in one case bull 
trout, a fish listed as threatened.
    The factors contained in 33 CFR Sec. Sec. 328.3(a)(3)(i)-(iii) 
could be an important indicator of appropriate Federal jurisdiction 
under the Clean Water Act. The factors described in the present 
configuration cannot be summarily dismissed, but, as noted by one 
Federal judge reviewing a CWA case who echoed the theme of SWANCC, 
``[t]he Commerce power as construed by the courts is indeed expansive, 
but not so expansive as to authorize regulation of puddles merely 
because a bird traveling interstate might decide to stop for a drink.'' 
Hoffman Homes, Inc. v. U.S. Envtl. Prot. Agency, 999 F.2d 256, 263 (7th 
Cir. 1993) (Manion, J., concurring).
            D. Question Two:
    Whether the regulations should define ``isolated waters,''' and if 
so, what factors should be considered in determining whether a water is 
or is not isolated for jurisdictional purposes?
    The determination as to whether the regulations should define 
``isolated waters,'' and if so, the factors to be considered should be 
guided by the fact that Congress in enacting the CWA recognized ``the 
primary responsibilities and rights of States to prevent, reduce, and 
eliminate pollution, to plan the development and use (including 
restoration, preservation, and enhancement) of land and water resources 
.'' 33 U.S.C. Sec. 1251(b).
    In light of Idaho's current regulatory mechanisms, Idaho recommends 
that the EPA and Corps adopt an appropriate regulatory interpretation 
of the SWANCC decision in determining jurisdictional wetlands. A 
definition of ``isolated waters'' is important because it will provide 
certainty to the public regarding what conduct is appropriate under the 
Clean Water Act.
    The SWANCC decision dealt with placing of fill in an abandoned 
gravel and sand pit, a wetland that was clearly created as a result of 
mans' activities. Any regulatory gloss to SWANCC should exclude from 
the CWA those isolated wetlands that result from mans purposeful or 
inadvertent activities, for example, gravel pits, constructed ponds, 
leakage from irrigation ditches or canals, water storage facilities or 
irrigation ditches, and aquifer recharge sites and wetlands created for 
treating irrigation return water. All naturally occurring isolated 
wetlands, streams, wet meadows and riparian areas should continue to 
receive protection and should be accommodated in the definition.

III. Conclusion
    The U.S. Supreme Court decision in SWANCC specifically eliminated 
Clean Water Act jurisdiction over isolated, intrastate, non-navigable 
waters where the sole basis for asserting CWA jurisdiction is the 
actual or potential use of the waters as habitat for migratory birds 
that cross State lines.
    While SWANCC and the subsequent Federal court decisions raise 
significant issues regarding Federal CWA jurisdiction, the CWA clearly 
recognizes the traditional authority of States to control sources of 
pollution and to plan the use and development of State land and water 
resources. 33 U.S.C. Sec. 101(b).
    Therefore, the CWA preserves to States the authority to adopt or 
enforce standards and limitations respecting discharges of pollutants 
or requirements respecting the control or abatement of pollution, as 
long as State effluent limitations or other limitations are no less 
stringent than those effective under the CWA. 33 U.S.C. Sec. 1370. See 
also 33 USCA Sec. 1344(t) (preserving to States the authority to 
control the discharge of dredged or fill material in any portion of 
navigable waters within the jurisdiction of the State).
    As discussed above, Idaho law arguably prohibits Idaho from 
regulating waters not regulated under the CWA.
    If the Federal agencies eliminate or narrow jurisdiction over 
certain water bodies or wetlands, Idaho may be unable to step in and 
control water quality issues relating to all of these bodies or 
wetlands without an additional grant of authority from the Idaho 
Legislature.
            Sincerely,
                                  Dirk Kempthorne, Governor
                                 ______
                                 
  Responses of L. Michael Bogert to Additional Questions from Senator 
                                Jeffords

    Question 1. How many miles of streams in Idaho are considered 
``traditionally navigable?'' What percentage of the waters in Idaho 
does this comprise?
    Response. There are approximately 18,116 miles of streams in Idaho 
considered ``traditionally navigable'' by the State. These streams are 
estimated to comprise 19.7 percent of the waters in Idaho.

    Question 2. What role do fishing, hunting, and wildlife watching 
play in the Idaho economy in terms of dollars and jobs contributed?
    Response. Idaho's fish and wildlife heritage, present and future, 
cannot be entirely summed up in a discussion of financial facts alone.
    However, participation by hunters and anglers (not counting 
citizens whose interest in wildlife is strictly as observers) is among 
the highest in the Nation. More than one in every three Idahoans 
actively hunts or fishes.
    Based on the latest reliable information from the Idaho Department 
of Commerce, about 197,000 residents and non-residents hunt and 416,000 
Idahoans and visitors fish in Idaho annually. The total is more than 
the combined populations of Boise, Pocatello, Idaho Falls, Nampa, and 
Moscow, Idaho (486,000 vs. 361,141).
    Spending by this group adds up to $754 million a year. Wildlife 
watchers spend an additional $356 million a year. When combined, the 
spending on wildlife related recreation in Idaho exceeds $1.1 billion 
annually. For the purpose of perspective, this was almost twice the 
cash receipts for Idaho's potato crop in the most recent year studied--
$1 billion vs. $551 million.
    State revenue from hunting and fishing alone (sales tax, fuel tax, 
and income taxes on related jobs) amounted to $51.5 million, and is the 
equivalent of 1,511 teachers' salaries or 9,532 students' annual 
education expenses in Idaho. Economists calculate this ``ripple 
effect'' on Idaho's economy at $1.22 billion annually.
    In the management of fish and wildlife, hunters and anglers pay for 
their own programs. The Idaho Department of Fish and Game is funded 
almost entirely by licenses and fees and through Federal funds which 
are derived from taxes on the sales of selected sporting goods. (A 
small percentage of the Department's budget comes form contracts with 
Federal agencies.) No State general funds are appropriated to the 
Department Fish and Game.
    Nonconsumptive use--wildlife watching--also contributes 
considerably to the economy of Idaho. About 333,000 Idahoans and 
451,000 visitors are estimated to spend a total of more than $356 
million in their pursuits. Many of those visitors are, of course, also 
hunters and anglers.
    Fish and wildlife contribute to the Idaho economy in another way, 
although it is more difficult to quantify. Highly skilled professionals 
and high tech industry employees--the kind of citizen most able to 
choose where they wish to make a living (and pay taxes)--often cite 
Idaho's outdoor lifestyle as the deciding factor in their choice to 
live here. I have enclosed additional materials that should provide a 
deeper perspective into this answer.

    Question 3. As I understand it, Idaho does not have any State level 
protections that prevent discharges of pollution or dredging and 
filling activities in waters not protected by the Clean Water Act and 
actually has a law that prevents it from developing regulations to do 
so. If this is true, is the State concerned with the potential impacts 
to drinking water supplies, and devastation of recreational hunting and 
fishing if many or most of Idaho's waters lose protection under the 
Clean Water Act?
    Response. The State of Idaho is deeply committed to protecting its 
waters.
    Our State's dedication to controlling water pollution is embodied 
in the following legislative prose from the State's water quality 
control statute:

  The legislature, recognizing that surface water is one of the State's 
    most valuable natural resources, has approved the adoption of water 
    quality standards and authorized the director of the department of 
    environmental quality . . . to implement these standards. . . . 
    [I]t is the purpose of this chapter to enhance and preserve the 
    quality and value of the surface water resources of the State of 
    Idaho. . . . In consequence of the benefits to the public health, 
    welfare, and economy, it is hereby declared to be the policy of the 
    State of Idaho to protect this natural resource by monitoring and 
    controlling water pollution. [Idaho Code Sec. 39-3601 (Michie 2002) 
    (emphasis added).] A brief overview of the State's water management 
    infrastructure will provide an appropriate context to answer this 
    question.
A. Idaho's Water Quality and Water Management Framework
    In Idaho, the use and management of water is protected within the 
framework of the State constitution. For example, appropriated water in 
Idaho is declared subject to regulation by the State as a public use, 
[Idaho Const. art. XV, Sec.  1]; the right to divert and appropriate 
unappropriated waters ``shall never be denied,'' [Idaho Const. art. XV, 
Sec.  3]; and the State water resource agency has its organic genesis 
in the State constitution. [Idaho Const. art. XV, Sec.  7].
    The Idaho Departments of Environmental Quality (IDEQ) and Water 
Resources (IDWR) jointly govern water quality and management through 
IDEQ's development and implementation of State water quality standards 
and Total Maximum Daily Load allowances (TMDLs), as well as IDWR's 
water transfer authority.
    The Idaho Legislature has provided to the IDEQ broad authority to 
develop a system to safeguard the quality of the waters of the State, 
including authority to adopt and enforce rules relating to the 
discharge of effluent into the waters of the State, and to adopt and 
enforce State water quality standards that designate uses and provide 
criteria to protect those uses. See generally [Idaho Code Sec. 39-
105(e) (Michie 2002); Sec. Sec. 39-3601-to-3624 (Michie 2002 and Supp. 
2003)].
    In providing this authority to the IDEQ, the State legislature very 
broadly defined ``waters or water body'' to mean ``all accumulations of 
surface water, natural and artificial, public and private, or parts 
thereof which are wholly or partially within, flow through or border 
upon this State.'' [Idaho Code Sec. 39-3602(28) (Michie 2002)]. [See 
also Idaho Code Sec. 39-103(16) (Michie 2002) (defining ``water'' 
almost identically)].
    While providing IDEQ authority to regulate water quality with 
respect to a very broad definition of waters of the State, the Idaho 
Legislature also intended ``that the State of Idaho fully meet the 
goals and requirements of the Federal clean water act and that rules 
promulgated under this chapter not impose requirements beyond those of 
the Federal clean water act.'' [Idaho Code Sec. 39-3601 (Michie 2002)]. 
This is commonly referred to as the ``stringency'' requirement under 
State law, but it does not limit other State agency authority on 
activity protecting water quality.
    As authorized by Congress through the Clean Water Act, Idaho has 
developed water quality standards and Total Maximum Daily Loads (TMDL). 
[See Idaho Code Sec. Sec. 39-3601 to-3612 (Michie 2002 and Supp. 
2003)]. Under State law, ``and as required by the Federal Clean Water 
Act,'' the IDEQ is required to develop a total maximum daily load to 
control point source and non-point sources of pollution. [Idaho Code 
Sec.  39-3611 (Michie 2003) (emphasis added)].
    Inherent within this authority is the power to identify pollutants 
impacting the water body; [Idaho Code Sec. 39-3611(1) (Michie 2003)]; 
to inventory all point and non-point sources of the identified 
pollutant, [Idaho Code Sec. 39-3611(2) (Michie 2003)]; and to develop 
pollution control strategies for both point sources and non-point 
sources for reducing those sources of pollution, [Idaho Code Sec. 39-
3611(5) (Michie 2003)].
    After the TMDL process provided by State law is completed, the 
Director of IDEQ shall ``integrate such processes into the State's 
water quality management plan developed pursuant to the Federal Clean 
Water Act.'' [Idaho Code Sec. 39-3612 (Michie Supp. 2003)].
    Accordingly, Idaho's authority to analyze, adopt, and implement 
water quality standards and TMDLs--activities which complement the 
goals of the Federal Clean Water Act--are vigorously pursued within the 
State's statutory construct. All of these activities may be undertaken 
in areas where Idaho's environmental values have its highest levels of 
interest by our State's outdoor recreationalists.
B. An Additional Tool to Aid Water Quality: House Bill 284
    During the 2003 legislative session, Idaho enacted House Bill 284, 
which was signed into law by Governor Kempthorne. H.B. 284, 57th Leg. 
1st Sess., 2003 Idaho Sess. Laws 806 (enclosed).
    House Bill 284 amended the definition of the ``local public 
interest'' criterion used to evaluate certain administrative decisions, 
including basin water transfers, within Idaho's statutory water 
management infrastructure. The ``local public interest'' is ``the 
interests that the people in the area directly affected by a proposed 
water use have in the effects of such use on the public water 
resource.'' [Idaho Code Sec. 42-202B(3) (Michie 2003)].
    House Bill 284 also added a new separate ``economic effects'' 
criterion intended to apply in the event of an out of-basin transfer of 
water from one watershed or local area to another. Under Idaho law, 
such movement of water may not ``adversely affect the local economy of 
the watershed or local area within which the source of water for the 
proposed use originates, in the case where the place of use is outside 
of the watershed or local area where the source of water originates.'' 
[Idaho Code Sec. 42-202B (Michie 2003)].
    The Director of IDWR may consider trans-basin transfers if it will 
not adversely affect the local economy of the original source of the 
transfer, which is a new element enacted as a part of House Bill 
284.\1\
---------------------------------------------------------------------------
     \1\That part of the statute provides in pertinent part that: ``The 
director of the department of water resources shall examine all the 
evidence and available information and shall approve the change in 
whole, or in part, or upon conditions, provided no other water rights 
are injured thereby, the change does not constitute an enlargement in 
use of the original right, the change is consistent with the 
conservation of water resources within the State of Idaho and is in the 
local public interest as defined in section 42-202B, Idaho Code, the 
change will not adversely affect the local economy of the watershed or 
local area within which the source of water for the proposed use 
originates, in the case where the place of use is outside of the 
watershed or local area where the source of water originates, and the 
new use is a beneficial use, which in the case of a municipal provider 
shall be satisfied if the water right is necessary to serve reasonably 
anticipated future needs as provided in this chapter.'' [Idaho Code 
Sec. 42-222(1) (Michie 2003) (emphasis added).]
---------------------------------------------------------------------------
    Accordingly, even in Idaho's water management infrastructure, 
protection of the types of recreational values identified in the 
question above is appropriately considered under State law.

    Question 4. If the jurisdiction of the Clean Water Act is narrowed, 
mining companies, heavy industries and others, could discharge 
pollution directly into wetlands and streams that will flow into 
groundwater or downstream surface waters. What will Idaho do to combat 
this pollution?
    Response. Any narrowing of Federal Clean Water Act authority will 
not affect State laws and rules that are not derived from the CWA.
    The State Legislature has provided IDEQ and other State agencies 
with broad authority to maintain and protect the quality of the State's 
groundwater. [See, e.g. Idaho Code Sec. Sec. 39-102(2), (3); 39-120 to 
39-127].
    The State regulates mining and other specific activities in the 
State to ensure protection of natural resources and will continue to 
use these laws and its CWA authority to combat water pollution. The 
State has great confidence that it has ample authority to protect the 
environment from the activities set forth in the question.



                               __________
Statement of Richard Hamann, Associate in Law, Center for Governmental 
      Responsibility, Levin College of Law, University of Florida

              RECONCILING SWANCC WITH THE CLEAN WATER ACT

    Chairman Crapo, Senator Graham and members of the committee, thank 
you for the opportunity to speak to you today about how the decision of 
the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. 
Army Corps of Engineers (SWANCC)\1\, can be reconciled with the goals 
of the Clean Water Act. I have studied and taught the law and policy of 
wetlands regulation for over 20 years and am honored to be here.
---------------------------------------------------------------------------
     \1\531 U.S. 159 (2001).
---------------------------------------------------------------------------
    So-called isolated wetlands and waters are seldom truly isolated. 
As Congress correctly recognized in 1972, water moves in hydrologic 
cycles, pollution must be addressed at the source and pollution is more 
than adding chemicals to water\2\. Degrading the physical or biological 
integrity of water is pollution\3\. Discharging pollutants, whether 
they are oil, sewage or clean fill dirt, into bodies of water that are 
not navigable in the traditional sense can have severe adverse impacts 
on human health and aquatic ecosystems.
---------------------------------------------------------------------------
     \2\S. Rep. No. 92-414, p.77 (1972), U.S. Code Cong. & Admin. News 
1972, pp. 3668, 3742.
     \3\The goal of the Clean Water Act is ``to restore and maintain 
the chemical, physical and biological integrity of the Nation's 
waters.'' Clean Water Act Sec. 101, 33 U.S.C. Sec. 1251. According to 
the House Report, ``the word 'integrity' . . . refers to a condition in 
which the natural structure and function of ecosystems is maintained.'' 
H.R. Rep. No. 92-911, p. 76 (1972).
---------------------------------------------------------------------------
    A substantial part of the State of Florida, like many other States, 
is covered by streams, lakes, ponds, swamps and marshes that do not 
meet the traditional tests of navigability\4\ and are not tributary to 
waters that meet those tests. Even the Everglades, often characterized 
as a ``River of Grass,''\5\ has many areas of wetlands and shallow, 
seasonal waterbodies that are geographically remote from traditional 
navigable waters and may be hydrologically connected only during high 
water conditions. Nevertheless, these areas are essential to the 
conservation of the larger aquatic ecosystem and to the quality and 
availability of the water on which the Everglades and everyone in South 
Florida depend. In the part of Florida where I live, we have numerous 
lakes and streams that sustain abundant fish and wildlife resources and 
provide recreational opportunities for residents and visitors from 
throughout the world. They are also resources of national importance 
and are vulnerable to every kind of pollution. In many cases they 
discharge to groundwater through sinkholes. Streams and lakes simply 
flow into the ground carrying pollutants and become part of our 
drinking water supply and the source of our springs. In many cases they 
are not navigable or directly connected to traditional navigable waters 
and under some interpretations of SWANCC would not receive the 
protections of the Clean Water Act or other Federal environmental 
legislation. Florida illustrates why Congress defined ``navigable 
waters'' as ``waters of the United States''.
---------------------------------------------------------------------------
     \4\The 11th Circuit has redefined navigability in the narrowest 
possible terms, holding that Fisheating Creek was not navigable for 
regulatory purposes because it was not part of a continuous, interstate 
highway for waterborne commerce. Lykes Bros. v. U.S. Army Corps of 
Engineers, 64 F.3d 630 (11th Cir. 1996).
     \5\Marjory Stoneman Douglas, THE EVERGLADES: RIVER OF GRASS 
(1947).
---------------------------------------------------------------------------
    Prior to 2001, there had been strong judicial support for 
comprehensive water pollution control including restrictions on the 
discharge of dredged or fill material to wetlands. The term ``waters of 
the United States'' had been given the expansive interpretation 
necessary to implement the intent of Congress.\6\
---------------------------------------------------------------------------
     \6\U.S. v. Eidson, 108 F.3d 1336 (11th Cir. 1997); U.S. v. 
Holland, 373 F. Supp. 665 (M.D. Fla. 1974).
---------------------------------------------------------------------------
    The decision in SWANCC was a setback to the protection of water 
quality, not only from dredged or fill materials, but also from oil, 
toxics and conventional pollutants. SWANCC has been soundly criticized 
as an example of conservative judicial activism. \7\ Those of us who 
study and implement the Clean Water Act have struggled to interpret the 
opinion and to reconcile it with previous decisions that were not 
overturned and with the language, structure and intent of the Clean 
Water Act. The lower Federal courts have diverged in their 
interpretations. Most courts have interpreted SWANCC as being of very 
limited application, eliminating Federal jurisdiction only over those 
waters that are hydrologically isolated and subject to Federal 
regulation only through use by migratory birds. \8\ That is the 
interpretation originally favored by the Federal agencies\9\ and 
consistently advocated by the Department of Justice in the briefs filed 
in appeals of many of the lower court rulings. \10\ Other courts have 
gone beyond the specific holding in SWANCC and ruled that the Clean 
Water Act does not regulate the discharge of pollutants in areas that 
are not directly and closely connected to traditional navigable waters. 
\11\ Most of these rulings are by lower courts and on appeal by the 
Department of Justice. The Corps of Engineers and Environmental 
Protection Agency have issued new guidance on the interpretation of 
SWANCC and initiated rulemaking on the definition of navigable waters. 
\12\ Some development interests believe rulemaking is warranted to 
restrict Clean Water Act jurisdiction. \13\
---------------------------------------------------------------------------
     \7\See e.g., Richard J. Lazurus, Environmental Law and the Supreme 
Court: Three Years Later, 19 Pace Envtl. L. Rev. 653 (2002).
     \8\See e.g., U.S. v. Krilich, 303 F.3d 784 (7th Cir. 2002), cert. 
denied 123 S. Ct. 1782 (2003); Headwaters v. Talent Irrigation 
District, 243 F.3d 526 (9th Cir 2001); U.S. v. Interstate General Co., 
152 F. Supp. 2d 843 (D. Md. 2001), aff'd 2002 U.S. App. WL 1421411 (4th 
Cir. 2002); U.S. v. Buday, 138 F. Supp. 2d 1282 (D. Mont. 2001).
     \9\Gary S. Guzy, General Counsel, U.S. Environmental Protection 
Agency and Robert M. Anderson, Chief Counsel, U.S. Army Corps of 
Engineers, Memorandum: Supreme Court Ruling Concerning CWA Jurisdiction 
over Isolated Waters (January 19, 2001).
     \10\See e.g., United States Brief in Response to Defendant's 
Motion for Reconsideration and in Preparation for Site Visit, p.7, 
United States of America v. James S. Deaton, Civil No. MSJ-95-2140, 
U.S. District Court, Maryland.
     \11\See e.g., Rice v. Harken Exploration Co., 250 F.3d 264 (5th 
Cir. 2001); U.S. v. Rapanos, 190 F. Supp 2d 1011 (E.D. MI, 2002), 
appeal pending No. 02-1377 (6th Cir.); U.S. v. Newdunn Assoc., 195 F. 
Supp 2d 751 (E.D. Va. 2002), appeal pending, No. 02-1594 and 02-1480 
(4th Cir.).
     \12\Corps of Engineers and Environmental Protection Agency, 
Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory 
Definition of ``Waters of the United States'', 68 Fed. Reg. 1991, 
January 15, 2003. Appendix A of the ANPR is a guidance document for 
interpreting SWANCC issued by Robert E. Fabricant, General Counsel, 
Environmental Protection Agency and Steven J. Morello, General Counsel, 
Department of the Army.
     \13\For the view that SWANCC is based on a correct interpretation 
of congressional intent, see Virginia S. Albrecht and Stephen M. 
Nickelsburg, Could SWANCC Be Right? A New Look at the Legislative 
History of the Clean Water Act, 32 ELR 11042-11058 (Sept. 2002).
---------------------------------------------------------------------------
    Conservation organizations are concerned that the notice of 
rulemaking implies too broad an interpretation of SWANCC and that the 
guidance memorandum is more restrictive of jurisdiction than is 
warranted.\14\ Because the guidance memorandum only requires referral 
to headquarters when asserting jurisdiction, they fear that decisions 
to refrain from regulation are encouraged. Because there is no process 
to document the decision not to regulate an area, there is no way to 
know how many acres of wetlands are being lost through Federal 
inaction, by what rationales, and with what ecological consequences.
---------------------------------------------------------------------------
     \14\See National Wildlife Federation et. al, Comments for the EPA 
Water Docket, OW-2002-0050, Advance Notice of Proposed Rulemaking on 
the Clean Water Act Regulatory Definition of ``Waters of the United 
States'', April 16, 2003; Jay Austin, No Need for EPA to Act After 
Court Ruling, The Environmental Forum 52-53 (May/June 2003).
---------------------------------------------------------------------------
    The Court in SWANCC said navigable waters cannot be read completely 
out of the Act. It supported regulating those waters that have a 
``significant nexus'' to navigable waters and wetlands that are 
``inseparably bound up with waters of the United States.'' It did not 
specify, however, how close the connection to navigable waters must be. 
In U.S. v. Riverside Bayview Homes\15\, the Court indicated a 
willingness to defer to the ``ecological judgment'' of the Federal 
agencies in assessing the importance of specific areas to the overall 
integrity of aquatic ecosystems\16\.
---------------------------------------------------------------------------
     \15\474 U.S. 121 (1985).
     \16\474 U.S. at 134-135.
---------------------------------------------------------------------------
    Rather than overreacting to SWANCC and adopting the most expansive 
interpretation of the case, the Federal agencies should continue to 
argue for a narrow interpretation of SWANCC. The Supreme Court has 
demonstrated a willingness to retreat from the language in opinions 
authored by some of its more extreme members. For example, in Palazzolo 
v. Rhode Island\17\, the Court resurrected long-standing tests for 
determining regulatory ``takings'' that had seemingly been rejected in 
the earlier opinion authored by Justice Scalia in Lucas v. South 
Carolina Coastal Council.\18\ The limitations on citizen suits of Steel 
Co. v. Citizens for a Better Environment\19\, were subsequently 
retracted in Friends of the Earth v. Laidlaw Environmental 
Services\20\.
---------------------------------------------------------------------------
     \17\533 U.S. 606 (2001).
     \18\505 U.S. 1003 (1992).
     \19\523 U.S. 83 (1998).
     \20\528 U.S. 167 (2000).
---------------------------------------------------------------------------
    Rather than unnecessarily accepting unwarranted limits on the 
jurisdiction of the Clean Water Act, the agencies should develop the 
case to protect waters that are vital to the integrity of aquatic 
ecosystems and defend it in the Federal courts. That process is, to 
some degree, now occurring, and should not be preempted by premature 
regulatory action.
    The ``ecological judgment'' of the agencies must be well-grounded 
in science. Numerous studies have supported the ecological value of 
``isolated'' waters and wetlands. Congress should support the agencies 
in continuing to develop sound science and apply it making regulatory 
decisions.
    Florida is better able than many States to withstand a curtailment 
of Federal wetlands jurisdiction. Most States have no authority for 
regulating isolated wetland and all States depend on the Federal 
programs. Wetlands are best protected when State and Federal agencies 
support each other\21\. Florida regulates most so-called isolated 
waters and wetlands under State law, but there are significant adverse 
consequences to losing the Federal participation in protecting all of 
our nation's waters. Florida has failed to implement a wetlands 
regulatory program in the Panhandle, where promoters have begun hyping 
the ``Great Northwest'' and development is booming. Many thousands of 
acres of our rarest wetlands in that area have no protection without 
Federal regulation. In other parts of the State, Federal regulation is 
a critical supplement and backstop to the system of State wetland 
protections. The protection provided under Florida law to the wetlands 
habitat of endangered and threatened species is much less than that of 
the Endangered Species Act. Florida has nothing similar to the National 
Environmental Policy Act (NEPA) and therefore no requirements to 
comprehensively consider and disclose the direct, indirect and 
cumulative impacts of development decisions. Florida has weaker 
requirements for the use of practicable alternatives and is in the 
process of adopting a rule to weaken wetland mitigation requirements.
---------------------------------------------------------------------------
     \21\Jon Kusler, ``Impinging on the States''? We Don't Think So, 
The Environmental Forum, 55-56 (May/June 2003).
---------------------------------------------------------------------------
    Finally, Florida's natural resources are affected by the decisions 
made in other States. Much of our wildlife migrates between Florida and 
other States and depends on the integrity of wetlands outside our 
borders. Many of Florida's rivers flow from Georgia and Alabama. The 
Suwannee and the St. Marys, for example, have their origins in the 
Okeefeenokee Swamp. A company is proposing to mine 300 acres of 
``isolated'' wetlands adjacent to that National Wildlife Refuge that 
are not regulated under State law and will not be regulated by the 
Corps of Engineers. If the Okeefeenokee is degraded\22\, two of 
Florida's most famous rivers are at risk.
---------------------------------------------------------------------------
     \22\The Department of Interior has expressed significant concern 
over the hydrologic impact of mining adjacent to the Okeefeenokee 
National Wildlife Refuge.
---------------------------------------------------------------------------
    Congress could act to clarify the extent of Clean Water Act 
jurisdiction. Simply deleting any reference to navigability as a 
jurisdictional constraint would resolve the issue of statutory 
interpretation. Indeed, S. 473, The Clean Water Authority Restoration 
Act, introduced in February 2003, would accomplish this result and is 
the ideal solution.
    Even without new legislation, the Environmental Protection Agency 
and the Corps of Engineers could clarify the definition of ``waters of 
the United States'' in several important respects. They could 
eliminate, for example, the need to show that the degradation of a 
particular water affects interstate commerce. Dredging and filling are 
economic activities with substantial effects on interstate commerce and 
should be regulated as such. The agencies could clarify that 
tributaries include any system of artificial or natural streams, 
ditches, drains, swales, arroyos, aquifers or other drainage features 
that is reasonably likely to convey water to navigable waters. They 
could define navigable waters to include waters that used or 
susceptible of use for recreational purposes. They could define the 
concept of adjacency to ensure that any waters or wetlands that bear a 
significant ecological relationship to navigable waters are regulated.
    Substantially revising a regulatory definition that has worked 
effectively and withstood many legal challenges, however, seems 
premature, especially if the effect is to reduce the geographic scope 
of the Clean Water Act beyond that specifically required by the narrow 
holding of SWANCC. The importance of the nation's waters is not defined 
by navigability. That fact was clearly recognized by Congress in 1972 
and again in 1977. The discharge of oil, toxic substances or untreated 
sewage into an ``isolated'' wetland or body of water, or a remote 
stream, can have devastating consequences for human health and the 
environment. When the Supreme Court is presented with a case involving 
more ecologically compelling facts than an abandoned gravel pit, it may 
recognize the importance of upholding the intent of Congress to protect 
the integrity of all of the nation's waters. It may also choose to 
further curtail Federal authority, but it has not done so yet and we 
should not assume that it will do so in the future.

                                 ______
                                 
Responses of Richard Hamann to Additional Questions from Senator Graham

    Question 1. In your opinion, do we adequately recognize the value 
of our wetlands?
    Response. I believe the public recognizes the great value of 
wetlands for water quality enhancement, water storage and flood 
attenuation, groundwater recharge, fish and wildlife habitat, 
aesthetics and recreation. Some interests see them primarily as 
obstacles to land development. In my opinion, our political 
institutions do not adequately recognize the value of our wetlands. If 
they did, the debate in Congress would be about how to strengthen and 
improve the protection of wetlands by encouraging the development of 
watershed plans and clearly regulating drainage activities; we would 
not be losing on average 58,000 acres of wetlands every year to 
dredging, filling and drainage.

    Question 2. In your testimony you said Congress could clarify the 
intended scope of the Clean Water Act by simply removing the word 
``navigable'' from the statute. If Congress did that, what would 
prevent the Corps from asserting jurisdiction over every puddle, or 
every crease in the ground that catches rainwater during a storm?
    Response. By removing the word ``navigable'' from the statute 
Congress would be simply restating the congressional intent that it 
expressed in 1972 by defining ``navigable waters'' as ``waters of the 
United States'', a definition that excluded any reference to 
navigability. 33 U.S.C. Sec. 1362(7). In applying that definition, the 
Corps of Engineers (Corps) and Environmental Protection Agency (EPA) 
have carefully delineated those kinds of waters that would be subject 
to regulation, including all navigable and tidal waters, their 
tributaries and adjacent wetlands. They have asserted jurisdiction over 
``other waters `` whose use, degradation or destruction could affect 
interstate or foreign commerce. 33 C.F.R. Sec. 328.3(a). Jurisdiction 
is limited by the commerce clause and the purposes of the Clean Water 
Act (CWA).
    In some cases the agencies have attempted to regulate ponds and 
wetlands that are seasonally wet or streams that flow only 
intermittently. They have sometimes regulated streams and waterbodies 
that are not directly and continuously connected to navigable waters. 
The reason they have done so is that in many cases these kinds of 
waters are critically important parts of the aquatic ecosystem. They 
may serve as wildlife habitat during critical portions of a species 
life cycle. Many waterfowl and amphibians, for example, breed in 
isolated or seasonal ponds and wetlands. Wading birds, such as the 
endangered wood stork feed in such areas. In other cases, seasonal or 
intermittent waters are vital to maintaining the quality of larger 
waters that receive drainage from those areas. EPA and the Corps 
consider the specific facts relative to a specific body of water before 
determining whether there is jurisdiction over that particular place as 
provided for in the agency rules. They have never asserted jurisdiction 
over ``every puddle, or every crease in the ground''. In the event they 
did, there is an administrative process for reviewing the 
jurisdictional determination and having it reversed. 33 C.F.R. Part 
331.

    Question 3. Could you please explain what aspects of the CWA will 
be affected by the SWANCC decision, and what those effects might be?
    Response. The decision in Solid Waste Authority of Northern Cook 
County vs. United States, 531 U.S. 159 (2001) (SWANCC) limits the 
jurisdictional reach of the CWA. Although there is some debate over the 
extent of the limitation, the geographic extent of regulatory 
jurisdiction is not an extensive as it was before the Supreme Court's 
decision. To the extent that SWANCC limits the extent of CWA 
jurisdiction, it does not do so only for the Section 404 wetlands 
regulatory program. It also limits CWA jurisdiction over the discharge 
of toxic chemicals, feedlot wastes, stormwater runoff and other kinds 
of pollutants. It limits the authority of EPA to require States to 
develop and implement water quality standards and Total Maximum Daily 
Loads for point and nonpoint sources of pollutants. Because many State 
programs are dependent on Federal definitions or are implemented 
through Section 401 certifications, State wetlands and water quality 
programs are limited. Because jurisdiction under the Oil Pollution Act 
(OPA) is the same as that under the Clean Water Act, discharges of oil 
to surface waters may not be remedied or punished. The unregulated 
discharge of pollutants may now occur in new areas.

    Question 4. Are there currently CWA exemptions covering normal 
agricultural practice, and would those exemptions be affected by the 
Clean Water Authority Restoration Act, as proposed?
    Response. The CWA currently contains extensive agricultural 
exemptions. For the purposes of Section 404, normal farming practices 
have a very broad exemption, provided they do not have the affect of 
reducing the reach of navigable waters. 33 U.S.C. Sec. 1344(f). Return 
flows from irrigated agriculture and agricultural stormwater drainage 
are exempt from the same kinds of regulation as are other discharges of 
pollutants. 33 U.S.C. Sec. Sec. 402(l), 502(14).
    The proposed Clean Water Authority Restoration Act of 2003 (S. 473) 
would have no affect whatsoever on any of the agricultural exemptions. 
It merely codifies the regulatory definition of waters of the United 
States that EPA and the Corps have been using for many years.

    Question 5. During the hearing, Mr. Pierce presented photographs of 
what he said were instances where the Corps asserted Sec. 404 
jurisdiction. Those photos generally depicted water management 
structures related to working farmland, or arid areas. Could you help 
us understand why it might have be reasonable for the Corps to assert 
jurisdiction in the cases such as those presented by Mr. Pierce?
    Response. It is often possible to portray regulation as 
unreasonable by presenting images or other information that fails to 
convey an accurate impression of the circumstances. It would be 
necessary to objectively review the case studies presented to determine 
whether they were accurately portrayed and to understand the rationale 
for asserting jurisdiction. Several images, however, raised questions 
in my mind. There was one image of a forested area over which the 
agencies had asserted jurisdiction. It appeared very dry. One could 
clearly see, however, the distinctive water lines on the trunks of the 
trees that indicate the site is regularly inundated for extensive 
periods of time. It appeared that a misleading impression was created 
by showing dry season conditions. There was at least one image of a dry 
wash in a desert area. It appeared bone dry at the time the photograph 
was taken but one could plainly see the effects of flowing water in the 
distribution of sand in the channel, the cutting of banks etc. An 
experienced person would understand how water flowing in that channel, 
however intermittently, could transport pollutants, threaten flood 
damage, and otherwise affect the interests of the Nation in the waters 
of the U.S. Because they tend to retain moisture, such areas are often 
among the most important areas of wildlife habitat in the desert 
environment.
    There were also views of farmland over which the agencies had 
allegedly asserted jurisdiction. Approximately 80 percent of our 
wetland losses have occurred due to agricultural conversions, so these 
areas may have been more functional and recognizable as wetlands before 
farming practices began. In addition, farmers sometimes plant areas 
that are infrequently wet, hoping for a dry year or to harvest before 
the water returns. Such practices can damage wetlands that are valuable 
wildlife habitat and cause pollution of other waters. In other cases, 
unregulated drainage activities may have degraded wetlands. A closer 
examination of the facts is needed.

    Question 6. During the hearing, panel members mentioned three ways 
to resolve the confusion about CWA jurisdiction: 1) Leave it to the 
courts; 2) EPA/Corps rulemaking; and 3) legislation. Could you 
summarize the pros and cons of these three options? Which of these 
options makes the most sense?
    Response. Congressional or administrative action would, presumably, 
be intended to resolve any uncertainty or regulatory gaps created by 
the SWANCC decision. Leaving the issue to the courts would reduce the 
chances of premature and unnecessary legislative or administrative 
action premised on incorrectly predicting the course of judicial 
interpretation. By allowing the courts to further define the issues, 
the real scope of the problem to be addressed would be more apparent. 
However, there would be uncertainties and litigation expenses for both 
resource protection and development interests for some period. 
Rulemaking by EPA and the Corps could alleviate some of the 
uncertainty, but seems certain to introduce additional confusion over 
the meaning of new rules. Rulemaking also risks overreacting to the 
SWANCC decision and administratively eliminating jurisdiction over 
important areas based on reading the case too broadly and going beyond 
what is required by the courts. Because SWANCC was decided on 
legislative interpretation, legislation is the easiest way to correct a 
mistaken interpretation. If Congress cannot act simply and directly, 
however, the issue is likely to become further confused.
    Enacting the Clean Water Authority Restoration Act of 2003 (S. 473) 
would make the most sense for those interested in maintaining pre-
SWANCC jurisdiction. Rulemaking makes the most sense for those 
interested in limiting jurisdiction because they have the opportunity 
to adopt rules that extend the ruling in SWANCC. To those who are 
concerned with maintaining wetlands protection, continued 
interpretation and application of the existing rules make the most 
sense, assuming they have little confidence in the commitment of 
Congress or the administration to strengthen or maintain existing 
levels of environmental regulation.

    Question 7. Under the Corps' current policy, field offices must 
consult with HQ before asserting Sec. 404 jurisdiction under certain 
circumstances, but not when they choose not to assert jurisdiction. 
What are the possible impacts of that policy?
    Response. That policy creates an obvious bias against asserting 
jurisdiction. The staff who make these determinations in the field are 
generally overworked, underpaid and subject to intense political 
pressure. By asserting jurisdiction, the staff member instantly creates 
the additional work of compiling whatever information is required to 
justify the decision, writing a report to that effect, and responding 
to questions and requests for additional information. By making it more 
difficult to assert regulatory jurisdiction than not, the agency is 
effectively discouraging staff from fully implementing the authority of 
the CWA. Perhaps more importantly, the staff member may be subtly 
pressured to ``back down'' on jurisdictional determinations due to 
concerns about job tenure or advancement. The informal decision of a 
staff member to not assert jurisdiction does not carry similar 
penalties.

    Question 8. During your testimony you mentioned that when the Corps 
declines jurisdiction there is no record of an action taken, and 
therefore no record of the effects of those decisions. Could you 
elaborate on what this means?
    Response. When jurisdiction is asserted a file is created and the 
agencies collect data about the acreage and locations of wetlands, the 
specific areas where discharges may be allowed and any mitigation that 
is required. It is thus possible to gain some understanding of whether 
the goal of ``no net loss'' is being achieved in the regulatory 
process. If an agency staff member learns about an activity occurring 
in wetlands through observation, citizen complaints or reports from 
other agencies and informally determines that there is no jurisdiction, 
that decision is not similarly documented and reported. Therefore, 
there is no way to review the agency files to determine how many 
thousands of acres of wetlands are being lost, with what consequences 
and on what basis. There is no record of a final agency action for 
review by Congress, citizens groups or anyone else who may be concerned 
the agencies are not fully implementing the statutes.

    Question 9. With respect to the protection of our nations waters, 
could you compare CWA protections prior to the SWANCC decision, what 
may occur under the a narrow interpretation of SWANCC and a broad 
interpretation of SWANCC?
    Response. The most extensive protection of our nation's water 
existed prior to the SWANCC decision. Relying on Riverside Bayview and 
numerous decisions by lower courts, the EPA and Corps of Engineers 
regulated tidal waters, navigable waters, tributaries to those waters 
and adjacent wetlands. Generally, groundwater was not regulated. 
Relying on the intent of Congress to regulate to the extent permitted 
by the Commerce Clause, the agencies also regulated ``other waters'' 
whose use or destruction could affect interstate commerce. The class of 
``other waters'' included:
    (3) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, wetlands, 
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, 
the use, degradation or destruction of which could affect interstate or 
foreign commerce including any such waters:

     (i) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes; or
     (ii) From which fish or shellfish are or could be taken and sold 
in interstate or foreign commerce; or
    (iii) Which are used or could be used for industrial purpose by 
industries in interstate commerce. 33 C.F.R. Sec. Sec. 328.3(a)(3)

    In the preamble to a major rulemaking in 1986, the Corps also 
stated its intent to include within the list of examples of ``other 
waters'', waters

    a. Which are or would be used as habitat by birds protected by 
Migratory Bird Treaties; or
    b. Which are or would be used as habitat by other migratory birds 
which cross State lines; or
    c. Which are or would be used as habitat for endangered species; or
    d. Used to irrigate crops sold in interstate commerce. 51 Fed. Reg. 
41206 (Nov. 13, 1986).

    The jurisdictional determination that was overturned in SWANCC 
specifically relied on the use of hydrologically isolated, abandoned 
gravel pits by migratory birds as the basis for regulation i.e. parts a 
and b of the so-called ``Migratory Bird Rule''. The Supreme Court 
specifically stated,
    We hold that 33 CFR Sec. 328.3(a)(3) (1999), as clarified and 
applied to petitioner's balefill site pursuant to the ``Migratory Bird 
Rule,'' 51 Fed. Reg. 41217 (1986), exceeds the authority granted to 
respondents under Sec. 404(a) of the CWA. 531 U.S. at 174.
    The narrow reading of SWANCC would apply that holding literally 
and, under that interpretation, only jurisdictional determinations 
based on the use of ``other waters'' by migratory birds would be 
invalid. Given the importance of prairie potholes, playa lakes, vernal 
pools and other ``isolated'' waters to waterfowl, migratory birds and 
other protected birds, even the narrowest interpretation of SWANCC will 
result in a significant curtailment of regulatory protection. 
Jurisdiction could still be based on use by endangered species, use for 
irrigation of crops sold in interstate commerce, or any of the other 
factors listed as examples of how a waterbody affects interstate 
commerce. A slightly broader reading would eliminate jurisdiction based 
on any of the examples given in the 1996 regulatory preamble. The 
elimination of jurisdiction for ``other waters'' used as habitat for 
endangered species could have severe adverse effects on the protection 
of habitat for many species.
    An even broader interpretation would eliminate jurisdiction over 
any of the ``other waters'' based on effects on interstate commerce. 
This interpretation is based on language in the majority opinion 
emphasizing use of the term ``navigable''. For example, the Court noted 
there was a ``significant nexus'' between the wetlands at issue in 
Riverside Bayview and navigable waters. 531 U.S. at 167-168. Although 
it declared that the term ``navigable'' might have ``limited effect'', 
the Court stated concern for ``reading the term 'navigable waters' out 
of the statute.'' 531 U.S. at 172. It thus might be argued that unless 
some connection can be shown to ``navigable waters'' as traditionally 
defined, the CWA does not provide jurisdiction. An impact on interstate 
commerce would not suffice. An even larger class of wetlands and 
waterbodies that are not contiguous, adjacent or tributary to 
traditional navigable waters would thus be excluded from the regulatory 
reach of the CWA. In this connection is should be noted that waters 
that are useful for navigation may not be considered ``navigable'' by 
certain Federal courts. Lykes Bros. v. U.S. Army Corps of Engineers, 64 
F. 3d 630 (11th Cir. 1996).
    The impact of eliminating jurisdiction over so-called isolated, 
non-navigable waters would be extremely severe. The State of Florida 
has estimated that 806,728 acres of wetlands in the Panhandle would be 
eliminated from regulatory jurisdiction through application of that 
interpretation. Other States report similar effects. The Public Speaks 
Out: Comments from the Federal Docket, 25 NATIONAL WETLANDS NEWSLETTER 
13 (July August 2003).
    The broadest and most limiting interpretations are based on the 
notion that there must be a ``significant nexus'' between the regulated 
area and navigable waters. They specifically reject the regulation of 
wetlands, ponds or streams that are not adjacent to open, navigable 
waters or directly, naturally and continuously connected to navigable 
waters. Connections by intermittent streams or other seasonal waters 
would not suffice. See e.g. Rice v. Harken, 250 F.3d 264 (5th Cir. 
2001) (no jurisdiction over discharge of oil to a small, seasonal 
tributary to navigable waters); U.S. v. Newdunn Assoc., 195 F. Supp. 
751 (E.D. Va. 2002), rev'd Treacy v. Newdunn Assoc., 344 F.3d 407 (8th 
Cir. 2003) (wetlands connected to navigable waters by intermittent flow 
through 2.4 miles of natural streams and manmade ditches held 
nonjurisdictional by District Court).
    The implications of such interpretations are staggering. The only 
jurisdiction that would be left is over navigable and tidal waters and 
their perennial, natural tributaries, and wetlands that are contiguous 
to those bodies of water where they are ``open''. EPA Region III has 
reportedly concluded that such an interpretation would threaten over 
one million acres of wetlands in just five mid-Atlantic States. BNA, 
U.S. Law Week, Vol 72, No. 9, p 2138 (Sept. 16, 2003). Ephemeral or 
intermittent streams are of vital importance to the functioning of 
larger river networks. Judith L. Meyer, Small Streams Are Indispensable 
Waters, 25 NATIONAL WETLANDS NEWSLETTER 7 (July August 2003).

                               __________
 Statement of Robert J. Pierce, Ph.D., Wetland Training Institute, Inc.

    Mr. Chairman and members of the subcommittee, thank you for this 
opportunity to speak today on this very important topic. In January, 
1989, after 14 years with the Corps of Engineers (Corps), the last 
seven in the Regulatory Branch at Corps Headquarters, I and a group of 
other wetland resource professionals and a former Department of Justice 
attorney left Federal service and formed the Wetland Training 
Institute, Inc. (WTI) to provide both the public and private sector 
with water resource training and reference tools.
    While with the Corps, I was principal technical monitor for the 
Wetlands Research Program and two research programs dealing with 
contaminated dredged material, was proponent for two wetland training 
courses, routinely taught in two other courses on regulatory policy, 
was responsible for the continued development of the Corps' wetland 
delineation procedure and was one of the three Corps representatives on 
the committee which developed the 1989 Manual for Identifying and 
Delineating Jurisdictional Wetlands (1989 Manual). In addition, I 
drafted many policy documents, provided technical and policy guidance 
to its districts and divisions and represented the Corps at numerous 
meetings within the government, professional societies and the general 
public.
    During the last dozen years, I have taught wetland delineation and 
jurisdictional policy to thousands of individuals in both the public 
and private sectors. In addition, as a consultant with Wetland Science 
Applications, I have applied the delineation and permitting process to 
real life projects proposed by the regulated public. I am a 
Professional Wetland Scientist and Certified Wetland Delineator. I have 
conducted wetland work in 37 States and the Territory of Guam. I have 
seen the wide variety of areas that technically qualify as true 
wetlands as well as the types of areas which often are regulated as 
wetlands but that differ little functionally from uplands of similar 
habitat type and, in my opinion, do not actually satisfy the 1987 
Delineation Manual. Increasingly in recent years, I have been called 
upon to provide expert witness testimony for citizens being prosecuted 
under the Clean Water Act (CWA). I have spent my entire professional 
career working with the Federal wetland permitting program.
    The Section 404 program has become more draconian as time has 
matured it. Previous Congresses have been unwilling to make meaningful 
changes and the executive branch has continuously expanded its 
jurisdiction onto private lands and at the same time reduced the 
effectiveness of the permitting program by making it so convoluted and 
complex that it is a full-time job to sort it out. Until the recent 
Supreme Court Ruling on SWANCC and the DC Circuit Ruling on Tulloch, 
the Judicial Branch has most often ``given deference'' to the executive 
branch and furthered tightened the noose around the public's collective 
neck.
    As the SWANCC decision has correctly pointed out, under the CWA and 
the Constitution, there are limits to what the Federal Government can 
regulate. Ours is a three-branch government. It is not for the 
executive branch to write laws or ignore judicial rulings. Yet for 
years, the executive branch has continuously and inconsistently altered 
its jurisdictional limits and regulation of private lands without any 
change in mandate from Congress. The Judicial took the Executive to 
task in its decision on the ``Tulloch Rule:''
    In a press release accompanying the adoption of the Tulloch Rule, 
the White House announced: ``Congress should amend the Clean Water Act 
to make it consistent with the agencies' rulemaking.'' White House 
Office on Environmental Policy, Protecting America's Wetlands: A Fair, 
Flexible, and Effective Approach 23 (Aug. 24, 1993). While remarkable 
in its candor, the announcement contained a kernel of truth. If the 
agencies and NWF believe that the Clean Water Act inadequately protects 
wetlands and other natural resources by insisting upon the presence of 
an ``addition'' to trigger permit requirements, the appropriate body to 
turn to is Congress. [American Mining Congress v. United States Army 
Corps of Engineers, 951 F.Supp. 267 (D.D.C. 1997); aff'd sub nom, 
National Mining Association v. United States Army Corps of Engineers, 
145 F.3d 1339 (D.C. Cir. 1998)].
    Since the ``migratory bird rule'' was shot down by the Supreme 
Court, the ``migratory molecule rule'' has risen to take its place. The 
new mantra for many Corps districts is ``follow the drop of water.'' If 
the ordinary high water mark (OHWM) is no longer perceptible--follow 
the drop of water. If sheet flow might occur over upland areas--follow 
the drop of water. If water flows through a roadside ditch--follow the 
drop of water. If the water flows through a stormwater system (or what 
EPA might euphemistically call an ``underground ditch'')--follow the 
drop of water. If an old aerial photograph or topographic map gives the 
slightest hint that a natural channel might have been located anywhere 
in the vicinity--follow the drop of water.
    There are those that argue that there are virtually no isolated 
wetlands--most are connected either by infrequent sheet flow across the 
surface or by groundwater. The technically correct statement, however, 
is that there are virtually no isolated ``lands,'' whether wet or not. 
Technically, it is well-established that all water is interconnected on 
the earth. The ``hydrologic cycle'' has been recognized by hydrologists 
for decades and constitutes the starting point for every published 
general discussion of hydrology (e.g., Dunn and Leopold 1978, Heath 
1982, and Leopold 1994). Winter et al. (1999) provides a simplified 
diagram (Figure 1) and discussion of the interactions of the various 
``pools'' of water that comprise the cycle. They state:

  The hydrologic cycle describes the continuous movement of water 
    above, on, and below the surface of the Earth. The water on the 
    Earth's surface-surface water-occurs as streams, lakes, and 
    wetlands, as well as bays and oceans. Surface water also includes 
    the solid forms of water--snow and ice. The water below the surface 
    of the Earth primarily is groundwater, but it also includes soil 
    water.
  The hydrologic cycle commonly is portrayed by a very simplified 
    diagram that shows only major transfers of water between continents 
    and oceans, as in Figure 1. However, for understanding hydrologic 
    processes and managing water resources, the hydrologic cycle needs 
    to be viewed at a wide range of scales and as having a great deal 
    of variability in time and space. Precipitation, which is the 
    source of virtually all freshwater in the hydrologic cycle, falls 
    nearly everywhere, but its distribution is highly variable. 
    Similarly, evaporation and transpiration return water to the 
    atmosphere nearly everywhere, but evaporation and transpiration 
    rates vary considerably according to climatic conditions. As a 
    result, much of the precipitation never reaches the oceans as 
    surface and subsurface runoff before the water is returned to the 
    atmosphere. The relative magnitudes of the individual components of 
    the hydrologic cycle, such as evapotranspiration, may differ 
    significantly even at small scales, as between an agricultural 
    field and a nearby woodland.

    At the Federal level, groundwater is regulated through the Safe 
Drinking Water Act. The Corps has consistently and correctly taken the 
position that it does not regulate groundwater. Since sheet flow can 
occasionally occur over almost every land surface (slide 24 attached), 
and water flowing over any surface can accumulate sediment which can 
then be carried into channels and on to navigable waters. If the Corps 
is trying to regulate all surface flows of sediment into waterbodies, 
then it should not only regulate those areas called ``wetlands'' that 
are connected by sheet flow. If we call all areas where water may 
occasionally sit or flow on the surface of the land ``navigable 
waters'' then Section 404 should apply uniformly across virtually every 
square foot of the United States and its territories. This would be far 
more logical than regulating some ditches but not others and some plant 
communities but not others.



   examples of inconsistent or erroneous applications of corps policy
    There are two sources of concrete examples of the inconsistency 
that abounds in the Corps regulatory program that I have tapped: 
decisions in cases that have been finalized under the Administrative 
Appeal process codified at 33 CFR 331 and other cases that may not have 
been appealed formally, but which were the subject of strong debate 
between property owners, their consultants and local Corps districts.
    I reviewed all (50) of the jurisdictional decision (JD) 
Administrative Appeal (AA) decisions that were posted on the Corps web 
sites as of the date of the Advanced Notice of Proposed Rulemaking 
(ANPRM). The Corps AA review officers' (RO) decision documents 
demonstrate ``in their own words'' the inconsistencies of 
interpretation of the regulations from district to district that have 
resulted from the lack of sound foundation and structure related to 
jurisdiction. Tables 1 is a list of the location and nature of the AA 
examples. Table 2 is a list of other cases that I have compiled. The 
following are some examples of the numerous inconsistencies that are 
common within the 404 Program.

Adjacent vs. Isolated Wetlands
    The most obvious issue arising from SWANCC and one of the most 
common reasons for jurisdictional AAs is the argument whether a 
morphologically disconnected landscape feature is isolated or adjacent. 
Long distances, sheet flow and proximity to subsurface drain tiles have 
all been used to claim that a wetland is adjacent to a tributary water 
of the U.S.
    A very disturbing trend is seen in a number of AA related to the 
issue of what constitutes a connection to a tributary--connection by 
sheet flow. In Continental 127 Fund, LLC (Table 1, AA19) and Baccarat 
Fremont Developers (Table 1, AA8), the Corps used sheet flow from 
disconnected wetlands to claim jurisdiction even though the Corps 
recognized that there was neither an OHWM or continuous wetland 
connection.
    Similarly, in CS 7 and CS 8 (Table 2), the only connection to a 
tributary was by sheet flow into a ditch. In CS 8 (Table 2) the Corps 
went on to say that the hydrologically disconnected wetland was 
``contiguous . . . irrespective of any past or existing permanent man-
made changes in landscape features . . .'' based on the presence of 
hydric soils. The Corps did not care that the hydric soils may have 
been naturally relict, whether the soils actually supported wetlands 
within the life or the CWA and whether 33 CFR 328.5 had any meaning. 
``Once 404, always 404,'' seems to be the current motto of the COE in 
many locations.
    The distance separating ``adjacent wetlands'' from tributaries 
varies greatly, but in many cases goes beyond the fundamental concepts 
encompassed in the definition of ``adjacent'' at 33 CFR 328.3 (c), 
which was intended to capture those wetlands separated from tributaries 
by narrow features. Several districts have over the years established 
local policies on separation. Wilmington and Buffalo Districts 
considered 200--300 ft and 200 ft, respectively, as the inclusion zone 
for adjacency. The then New England Division (1991) established an 800-
ft inclusion zone.
    Many of the Corps districts operating in the lower Mississippi 
Valley utilize the entire width of the 100-year floodplain as the 
inclusion zone for adjacency. Galveston District, as clarification 
after the U.S. v Wilson decision, issued guidance on February 13, 2001, 
stating that on the mainland, the 100-yr floodplain generally 
constitutes the inclusion zone, although they also have a ``two-
barrier'' policy which states that a wetland is isolated even within 
the floodplain if there are two barriers separating it from a 
tributary.
    Galveston District employed the ``two-barrier rule'' in the Reaves 
Administrative Appeal (Table 1, AA44). The RO upheld the use of the 
``rule'' when he decided that the appeal did not have merit in part 
because the property was separated from Galveston Bay by only one 
barrier--a road.
    Jacksonville District has recently taken the position that a 
wetland is jurisdictional if it will overflow from storm of 10-year 
recurrence frequency; it is connected if no more than one foot of 
relief exists between wetlands; or if it is within 500 ft of a 
tributary. Jacksonville District is still undecided about an isolated 
wetland that is more than 1000 ft from the Atlantic Ocean, 8 months 
after a request for a ``no permit required'' verification (Table 2, CS 
10).
    Jacksonville District, in a public presentation entitled ``SWANCC 
Update and Aftermath,'' redefined the term ``isolated'' to be `` Those 
wetlands whereby the waters could not reach navigable waters via 
surface flow or are not in close physical proximity to other waters of 
the United States.'' It clarified that adjacent waters which only can 
be wetlands and explained that ``adjacency is a physical relationship, 
near, bordering, neighboring that needs to be relatively close to 
'parent' water of the US.''
    In Golden State Developers (Table 1, AA6) two ``adjacent wetlands'' 
one, 1950 feet and other 3,400 feet distant from an intermittent stream 
were jurisdicitonal although the Corps did not assert jurisdiction over 
100-ft wide, concrete-lined water supply canal. The RO found that the 
appeal had merit because of insufficient documentation. The Corps 
claimed jurisdiction over one wetland which was 3400 feet upstream on a 
nonjurisdictional drainage because flow could travel down the 
nonjurisdictional tributary to a jurisdictional tributary. A second 
wetland was determined to be close enough at 1950 feet distance and 
``with sufficient precipitation Wetland EW-2 could form a continuous 
surface water connection with Stream W-1'' to claim jurisdiction. After 
the AA decision, the District modified JD, however, the details are not 
on the Web.
    In Baccarat Fremont Developers (Table 1, AA8), the San Francisco 
District based it jurisdictional call in part on the fact some wetlands 
were adjacent to other wetlands not tributaries. The district argued 
that sheet flow ties the wetlands together. The Administrative Appeal 
RO determined that the appeal had merit since the District decision was 
not supported by substantial evidence and that only wetlands that form 
a ``wetland continuum or complex'' can be considered adjacent to the 
major waterbody. The RO cited the preamble discussion from the 1991 NWP 
publication (56 FR 59113, 1991). The District subsequently supplemented 
its documentation but the substance of which was not provided on the 
Web.
    In Leavell/Grey (Table 1, AA9), Sacramento District claimed 
jurisdiction over two physically separated wetlands that were in 
proximity to two ditches. The RO determined that the appeal had merit 
and directed the District to reconsider and document if the wetlands 
are adjacent to any jurisdictional water body. Corps decided that a 
13.79 A wetlands was adjacent to a ditch that had replaced a historical 
tributary even though the ditch had been filled downslope and their 
remained no connectivity. A similar scenario existed at Sun City 
Lincoln Hills in California (Table2, CS2).

Tributary
    The issue of ``what is adjacent'' cannot be separated from the 
concept of ``what is tributary.'' Natural tributaries that currently 
exist on the landscape in more or less unaltered form (that is not 
radically channelized) generally can be readily recognized. The 
decision related to such natural tributaries is whether the stream 
channel is jurisdictional to the full longitudinal extent of a 
perceptible OHWM or whether Federal jurisdiction stops at some point 
short of the channel head. While the answer to this question is a legal 
issue, there are technical rationales explaining why the answer to the 
question should be that in many inland cases it stops short the full 
length of a perceptible OHWM as currently defined. They are discussed 
in a technical report provided electronically.
    There are a number of concepts that must be addressed related to 
the issue of what is tributary. These concepts occur as recurring 
themes within the universe of the case studies that I have reviewed and 
within the realm of the Administrative Appeal decisions that have been 
finalized. Heading the list is the term OHWM. I have prepared a report 
on the science relative to the concept and made it available 
electronically.
    What, if anything, constitutes a tributary in a less-than-natural 
form is the subject of numerous disagreements between land-owners and 
the Corps. Both cases that have been submitted to the AA process (Table 
1) and those that have not (Table 2), reveal much about the lengths to 
which some Corps districts will go to claim jurisdiction. These cases 
are just the tip of the iceberg.
    Jacksonville District, in a public presentation entitled ``SWANCC 
Update and Aftermath,'' summarized the practicable application of Corps 
policy as ``follow the drop of water.'' Contiguous wetlands are those 
which are physically connected to navigable waters by a surface water 
connection with an OHWM or a continuum of wetlands. If there is 
evidence of a former stream, now in culverts, then a feature is 
tributary, not isolated.

Ordinary High Water Mark
    One of the most fundamental problems with determining jurisdiction 
is the use of the term ordinary high water and OHWM to define the 
upstream or longitudinal limit of 404 jurisdiction. The term OHWM was 
``borrowed'' from the Section 10 program where it was only used to 
define the lateral limits of a traditionally navigable waterway--the 
longitudinal limit under Section 10 is defined by the limit of 
navigation. There is no independently defined, longitudinal limit for 
the Section 404 Program. The term OHWM may be an acceptable lateral 
limit in waters that are otherwise found to be jurisdictional if it is 
redefined to be quantitatively determinable and consistent with court 
rulings, but it is not an appropriate concept for defining the upstream 
limit of Section 404 jurisdiction.
    33 CFR Part 328.3 (e) defines the OHWM as:

  (e) The term ordinary high water mark means that line on the shore 
    established by the fluctuations of water and indicated by physical 
    characteristics such as clear, natural line impressed on the bank, 
    shelving, changes in the character of soil, destruction of 
    terrestrial vegetation, the presence of litter and debris, or other 
    appropriate means that consider the characteristics of the 
    surrounding areas.

    In Molycorp (Table 1, AA7), the Los Angeles District determined 
that a desert wash that discharges into an isolated, ephemeral lake was 
jurisdictional because the wash was ``hydrologically connected but not 
morphologically connected.'' The District said that it considered the 
OHWM in a ``watershed context.'' The District did not describe the size 
or timing of the annual or seasonal surface flow representing the 
hydrologic connection that it asserted was present. The primary 
evidence of this surface water connection provided by the District in 
the Administrative Record and at the appeal conference is that the 
Molycorp Inc. property is at a higher elevation than Ivanpah Lake, and 
that the water must flow down gradient and therefore must reach the 
lake. The AA Review Officer determined that the District in determining 
if an OHWM existed must consider:

   . . . concentrated surface and subsurface flow (not groundwater) and 
    biological responses of plants and animals to concentrated flow..

    But ``subsurface flow'' is groundwater and groundwater is regulated 
under the Safe Drinking Water Act. Furthermore, plants/animal response 
has no bearing on jurisdiction. The fact that plants grow better in a 
riparian zone is not determinative with regards to jurisdiction.
    Most disturbingly, the Review Officer concluded that an OHWM was 
not necessary to continue jurisdiction through a 1000--1500 ft distance 
to capture the desert wash upstream of the isolated dry lake. The RO 
opined:

  However, in this specific instance, I conclude that the District's 
    policy position that a tributary connection can exist in the 
    absence of a continuous ordinary high water mark is reasonable.

    How can it be reasonable when the regulations at 33 CFR 328.4, 
unambiguously state:

  In the absence of adjacent wetlands, the jurisdiction extends to the 
    ordinary high water mark [51 FR 41251, November 13, 1986].

    Even more explicit is the statement in the Preamble to 33 CFR 
328.4:
    Section 328.4(c)(1) defines the lateral limit of jurisdiction in 
non-tidal waters as the ordinary high water mark provided the 
jurisdiction is not extended by the presence of wetlands. Therefore, it 
should be concluded that in the absence of wetlands the upstream limit 
of Corps jurisdiction also stops when the ordinary high water mark is 
no longer perceptible [51 FR 41217, November 13, 1986].
    Furthermore, the Corps used the presence of surface water that 
extended 20 feet into Nevada after a storm event with a 10-year 
recurrence frequency to conclude that the morphologically isolated dry 
lake bed was subject to interstate commerce and, thus, Section 404.
    The OHWM should be described as that elevation on the bank where 
water flows during the wetter part of the year but not during storm or 
flood flows--certainly not a storm with a 10 year recurrence frequency. 
This harkens back to the 1972 definition that the Corps promulgated. 
Thus it would describe the channel in which water flows after a storm 
surge has passed and the water has receded and is flowing clear. The 
Corps Regulatory Guidance Letter (RGL) 88-06, issued June 27, 1988 (now 
expired but still applicable), discussed the ordinary high water mark 
(OHWM) as follows:

  OHWM: The OHWM is the physical evidence (shelving, debris lines, 
    etc.) established by normal fluctuations of water level. For rivers 
    and streams, the OHWM is meant to mark the within-channel high 
    flows, not the average annual flood elevation that generally 
    extends beyond the channel [emphasis added].

    This concept is elucidated in the ruling in U.S. v Pend Oreille 
Public Utility Dist. No. 1, 926 F.2d 1502 (9th Cir. 1991) which held 
that the ordinary high water line marked the boundary between riparian 
land and riverbed, and that the line corresponded with the highest 
level normally reached each year, excluding the annual spring rise:''

  In calculating ordinary high water line, both Federal and Washington 
    State law mandate exclusion of annual spring floods and;
  ``High water line'' for a river did not include annual spring flood; 
    right of State to riverbed was limited to line of ordinary high 
    water level and not line of highest water that could be proved 
    [emphasis added].

    The ruling in Pend Oreille also cited back to U.S. v. Claridge, 416 
F.2d 933, 934 (9th Cir. 1969) and followed the Howard v. Ingersoll, 54 
U.S. (13 How.) 409, 14 L.Ed. 189 (1851) Supreme Court ruling rejecting:

  the mistaken assumption that the annual spring floods of the river 
    determined the ordinary high water line [emphasis added].

    The ruling in U.S. v. Harrell, 926 F2.d 1036 (11th Cir. 1991) found 
that:

  Evidence failed to establish that tributary of navigable river was 
    below ``ordinary high water mark,'' for purposes of determining 
    whether tributary was within ``bed'' of river and subject to 
    Government's navigational servitude . . . and

  Debris and litter left from temporary and unpredictable floodwaters, 
    unlike that left from ordinary high water, was not evidence of 
    ordinary high water mark of navigable river, for purposes of 
    determining whether tributary was subject to Government's navigable 
    servitude . . .

    Thus, a history exists in both regulation and case law, which can 
be used to quantifiably defineOHWM. Unfortunately, since 1977, the 
Corps has never revised the definition of OHWM to reflect these legal 
positions that can in fact be measured empirically in the field. To 
this day it relies upon subjective language to implement the concept.
    The flow, which most accurately depicts what the courts have 
expressed conceptually as the OHWM, is the width of the channel that 
carries the mean annual discharge (or flow). As Leopold (1994) points 
out, ``the mean annual flow of a river is equaled or exceeded 25 to 30 
percent of the time, or about 91 to 109 days a year, so about 265 days 
a year the discharge is less than the average value. In other words, 
the average discharge is a rather large flow.'' The mean annual flow is 
routinely computed for all gaged streams in the United States and can 
be derived from regression equations that the USGS has developed over 
the last several decades for ungaged streams. The term OHWM should be 
redefined to specify the width of the channel, which carries the mean 
annual flow.
    In dryland landscapes that lack the dense vegetative cover 
characteristic of the humid climes, debris lines and small orientations 
of soil particles resulting from water movement are more readily 
obvious than where dense vegetation prevails. Furthermore, many dryland 
channels do not have flow on an annual basis. Therefore, regulation 
(which has increased dramatically in recent years) of small rills and 
other ephemeral manifestations of overland flow in the dryland 
southwest is an inequitable and arbitrary extension of jurisdiction 
based upon climatic conditions that are dramatically different between 
east and west. From a regulatory standpoint, a landowner would be 
unable to complete any project in this desert landscape without 
authorization from the Corps--this though it is virtually certain that 
little if any of the precipitation that does fall will ever reach a 
navigable water hundreds of miles away. Neglecting to consider these 
differences in trying to reach a consistent, defensible policy on 
jurisdictional limits for the 404 program will doom the effort to 
assured failure.
    In the King Ranch AA (Table 1, AA1), the appellant argued just the 
point made in all of the legal decisions, i.e, that jurisdiction should 
be based on ``ordinary or annual flow'' not on an OHWM based on water 
flows during floods or extreme conditions. The RO dismissed the appeal 
as having no merit and ruled:

  The USACE recently addressed using an ``ordinary flow'' to establish 
    jurisdiction in place of an ordinary high water mark in the 
    response to public comments in the preamble to the ``Final Notice 
    of Issuance and Modification of nationwide Permits,'' Federal 
    Register Vol. 65, No. 47, March 9, 2000, page 12823. Public 
    commenters had asserted that ephemeral waters lacked sufficient 
    flows to establish an ordinary high water mark and that using peak 
    flows and/or flood stages in lieu of ordinary flows, or using cut 
    banks, shelving, or debris that was influenced only by peak flows 
    or flooding, was inappropriate. The USACE rejected using an 
    ``ordinary flow'' to establish jurisdiction in place of an ordinary 
    high water mark (FR Vol 65, No. 47, page 12823) and stated that 
    ephemeral streams are waters of the United States, provided they 
    have an ordinary high water mark meeting the definition in 33 CFR 
    328.3(e). The USACE stated that the frequency and duration at which 
    water must be present to develop an ordinary high water mark has 
    not been established for the USACE regulatory program. The USACE 
    further stated that district engineers are to use their judgment on 
    a case-by-case basis to determine whether an ordinary high water 
    mark is present [emphasis added].

    In Sunrise Office Park AA (Table 1, AA3) near Tuscan, Arizona, a 
situation similar to Molycorp, the Los Angeles District claimed 
jurisdiction of an ephemeral wash that empties into a water detention 
basin of a new residential housing development. This 200 feet long by 
60 to 120 feet wide basin is drained by a 60 foot long, 6 inch diameter 
underground culvert. The 6 inch culvert then connects to an 
approximately 1 foot wide channel. This 1 foot wide channel connects to 
a concrete channel, which then reconnects to a natural channel with an 
ordinary high water mark, which meanders southwest through several 
single-family home residential areas to Magee Road. The ordinary high 
water mark becomes indistinct at several locations between the project 
site and Magee Road where the desert wash follows or crosses paved 
surfaces. These road crossings act as conduits of the water and 
maintain the tributary connection. There was no indication that the 
Corps even attempted to find out the frequency and duration that the 
roads had to be closed to traffic because of flowing water?
    The Appeal was found to have no merit and the RO citing 33 CFR 
328.4 (c)(1), concluded that:

  [t]he evidence in the administrative record as clarified by the site 
    visit and appeal conference clearly support the District's 
    conclusion that there is a tributary connection between the desert 
    wash on the Appellant's project site and waters of the United 
    States.

    In the Valley Vista AA (Table 1, AA5) in Arizona, the owner argued 
that a wash and man-made impoundment lack current jurisdiction because 
there was no OHWM downstream of impoundment. The Corps claimed that 
prior to 1952 there was a 2-mile long wash with an OHWM that connected 
it. The RO found the appeal had merit and ruled that the impoundment 
could not be ruled jurisdictional based upon a connection that only 
existed prior to the CWA. The final action of the District is still 
pending.
    Highly permeable soils and high evapotranspiration (ETo) in dryland 
environments means that many channels which display a morphologically 
continuous OHWM, may not be connected except during very infrequent, 
high-flow events. Thus, ``marks'' are not necessarily ``ordinary.''
Constructed Drainage/Irrigation Ditches
    In the preamble to the 1986 Corps regulations, the Corps stated 
that:

  . . . we generally do not consider the following waters to be 
    ``Waters of the United States.'' However, the Corps reserves the 
    right on a case-by-case basis to determine that a particular 
    waterbody within these categories of waters is a water of the 
    United States. EPA also has the right to determine on a case-by-
    case basis if any of these waters are ``waters of the United 
    States.''(a) Non-tidal drainage and irrigation ditches excavated on 
    dry land. (b) Artificially irrigated areas which would revert to 
    upland if the irrigation ceased [51 FR 41217, November 13, 1986].

    In the 2000 Notice on NWPs (FR) the Corps amended that policy 
(without benefit of the APA process) to indicate that ``ditches cut 
entirely in upland. . . .'' Furthermore, the Corps stated that ditches 
that connect one water of the U.S. to another water of the U.S. may be 
jurisdictional.
    Ever since the SWANNC decision there has been an ever increasing 
reliance upon ditches excavated in upland conditions to be the 
tributary that results in a determination of jurisdiction. In some 
cases, the districts have determined that the ditches themselves are 
not jurisdictional, but the wetlands that are either connected to them 
or only adjacent are. In the Krejci AA (Table 1, AA38), the Omaha 
district permitted the State highway department to divert a stream into 
a roadside ditch and then several years later, the district found that 
a nonconnected wetland on another property was adjacent to the roadside 
ditch which was now a ``tributary'' and therefore, jurisdictional. In 
this case the Corps approved one action that increased the 
jurisdictional limits on another property.
    The fact that the Corps regulates some ditches and not others, 
immediately forms a venue for arbitrary and capricious behavior from 
individual regulator to regulator and from district to district across 
the Nation. The arbitrary application of ill-defined policies and 
definitions feeds the ``it's jurisdictional because I say it's 
jurisdictional'' syndrome. The fact that the Corps does not regulate 
all ditches denigrates any argument that it must regulate some to 
prevent pollution of navigable waters.
    In the Leavell/Grey AA (Table 1, AA9), Sacramento District claimed 
historic connection by a natural tributary that was replaced by two 
ditches. In doing so, the District reversed its own jurisdictional 
determination that it had taken on one of the ditches on an adjoining 
piece of property. Because the ditch had been determined 
nonjurisdictional for the earlier project on the adjoining property, it 
had been filled, removing all connectivity with any natural waterbody. 
The RO determined that the appeal had merit and directed the District 
to reconsider why regulation of these two ditches is an exception to 
the general rule that ditches aren't regulated. The Corps decided one 
ditch and 1.196 acre wetland were not jurisdictional, but the other 
ditch, the one with severed connectivity, was jurisdictional and the 
13.79 acre wetland near it was adjacent and jurisdictional.
    In the Kukal AA (Table 1, AA10), the Sacramento District determined 
that an irrigation channel that also served as a drainage channel 
during storm events was a tributary. The District agreed that much of 
the runoff in the watershed above the ditch had been diverted but that 
it did not alter its jurisdictional status. The RO determined that the 
appeal did not have merit.
Piped Flow
    Districts have taken the concept of piped flow of a natural stream 
to the extreme. In the Pal Group AA (Table 1, AA15), the Chicago 
District found that drain tiles under a farm field where sufficient 
connection to make an adjacent property jurisdictional because the 
Corps found a blueline channel indicated on a 1923 topographic map in 
the vicinity of the project. Chicago District reasoned that the 
subsurface drain tiles replaced the blueline stream. The AA Review 
Officer determined that the appeal had merit because the District's 
administrative record was inadequate.
    In the Lundstrom AA (Table 1, AA18), the Chicago District used 1925 
and 1940 USGS topographic maps to determine that a blueline channel was 
in the vicinity of the project and had been replaced by drain tiles. 
Since the appellant had not provided evidence that the underground 
pipes did not replace the stream, the Review Officer determined that 
appeal did not have merit. Furthermore, because present day topography 
might be expected to differ from past, the Review Officer did not find 
merit with the argument that there is a two-ft topographic rise between 
the wetland and the tributary isolating it.
Use of Historic Maps and Photographs
    It is very evident from a review of cases, that districts are 
basing an ever increasing number of questionable decisions on what they 
perceive to be present after reviewing very old topographic maps and in 
some cases old aerial photographs. This trend is subverting the concept 
of normal circumstances. In regulatory Guidance Letter 86-9, the Corps 
stated:

  . . . it is our intent under Section 404 to regulate discharges of 
    dredged or fill material into the aquatic system as it exists and 
    not as it may have existed over a record period of time.

    Districts, in their quest for maximum land use authority, assume 
that there is jurisdiction even if there is no factual basis to support 
it. In a case in Ohio that I worked on, the tributary status of a 
roadside ditch was called into question. The Corps regulator indicated 
that he would check early topographic maps and aerial photographs to 
determine if an historic channel existed in the vicinity of the ditch. 
When asked what his default position would be if he found no evidence 
of an historic channel, he indicated that he would assume that there 
was one. I told him not to bother looking at old documents? It was 
clear that he would conclude that the ditch was jurisdictional 
irrespective of what could be seen on the old aerial photographs.
    Old topographic maps do not need to depict a channel or even 
contour lines to be sufficient ``proof'' that an historic channel 
existed. In CS 5 (Table 2), the Sacramento District relied upon a 1909 
USGS Quadrangle to decide that a natural ephemeral channel existed for 
an additional half mile up to the property under consideration prior to 
the excavation of an ephemeral irrigation/drainage ditch. The 
Quadrangle depicted neither contours nor a channel to support their 
contention. Even after the connection through the ditch had been 
severed on a downslope neighboring property, Sacramento District 
asserted that the animal waste holding ponds physically isolated but 
adjacent to this ditch were jurisdictional. To take jurisdiction over 
two constructed, animal waste treatment ponds even though they are 100-
feet away from and not connected to an excavated ditch because the 
ditch might have replaced a hypothetical ephemeral channel that has not 
if ever existed for decades and which had since been partially filled, 
severing all connectivity, is an arbitrary and absurd abuse of Federal 
authority.
    Two fundamental flaws exist with the Corps's propensity to justify 
all jurisdiction as a tributary. First, blue lines on USGS Quads are 
unreliable. Leopold (1994), Emeritus Professor of Geology at UC Berkley 
and former Chief Hydrologist for the USGS writes:

  I tried to devise a way of defining hydrologic criteria for the 
    channels shown on topographic maps and developed some promising 
    procedures. None were acceptable to the topographers, however. I 
    learned that the blue lines on a map are drawn by nonprofessional, 
    low-salaried personnel. In actual fact, they are drawn to fit a 
    rather personalized aesthetic.

    Thus, the Corps should not be giving great weight to old maps, 
which used far-less accurate mapping procedures than are currently 
available today and personalized aesthetics to depict stream courses, 
to assert Federal jurisdiction over private property.
    Second, even if an historic channel existed, the principle of 
``once navigable, always navigable'' does not apply to nonnavigable 
waters under Section 404 of the CWA. Corps regulations at 33 CFR 328.5 
states:

  Permanent changes of the shoreline configuration result in similar 
    alterations of the boundaries of waters of the United States. 
    Gradual changes which are due to natural causes and are perceptible 
    only over some period of time constitute changes in the bed of a 
    waterway which also change the boundaries of the waters of the 
    United States. For example, changing sea levels or subsidence of 
    land may cause some areas to become waters of the United States 
    while siltation or a change in drainage may remove an area from 
    waters of the United States. Man-made changes may affect the limits 
    of waters of the United States; however, permanent changes should 
    not be presumed until the particular circumstances have been 
    examined and verified by the district engineer. Verification of 
    changes to the lateral limits of jurisdiction may be obtained from 
    the district engineer.

    In CS 5 (Table 2), Sacramento District decided that a permit was 
not needed to fill a ditch, presumedly because it had already been 
legally filled downslope and, thus, disconnected from any natural 
waterbody. Defying all logic, however, Sacramento District determined 
that a permit would be needed to fill the animal waste ponds that were 
100 feet distant from a nonjurisdictional, isolated, excavated ditch.

Ephemeral Channels
    Ephemeral channels in all climes generally form under the same 
landscape conditions--sparse or no vegetative cover. The presence of a 
dense cover of vegetation on the land surface, softens the impact of 
raindrops (the initiator of erosion) and binds the soil in place 
through the network of roots and generally prevents the formation of 
channels. When the vegetative cover is sparse as naturally occurs in 
dryland conditions (e.g., the southwest) or onsites that have been 
filled with subsoils low in organic matter and nutrients, or bare soils 
resulting from clear-cutting of mature forests or scraping or rutting 
of the land surface, erosion can occur at a rapid rate. The channels 
that form generally are deeply incised and carry runoff water only 
during and immediately after rain events or snowmelt.
    Under dryland climatic conditions, and absent any other 
perturbation, the vegetation cover remains sparse and erosion continues 
at rates determined by such factors as intensity of storm event, soil 
characteristics and slope. Channels that form under dryland conditions 
may not be in response to surface erosion, but may actually result from 
the collapse of subsurface tunnels and debris slides among other 
causes. Once formed, however, such ephemeral channels will continue to 
carry water (and high loads of eroded sediment) during and shortly 
after storm events until obliterated by some more catastrophic event.
    In the more humid climes, in most cases, a depauperate land cover 
is usually transient. Unless chemical contamination or very steep 
slopes are present, weed species rapidly colonize the bare soil and the 
landscape passes through a well-documented progression of serial stages 
until a climax forest (100-years or more distant from the bare soil 
condition) results in a stable plant community. Generally, it is only 
during the very early stages of such succession, that ephemeral 
channels that formed during bare-soil conditions actually carry water 
except under the most severe events.
    CS1, CS6, CS8 and CS13 (Table 2) and AA7 (Table 1), identify 
situations where barely definable flow-paths have been regulated by the 
Corps. In CS13, two channels were regulated that exist only because 
channelized runoff from a road has been directed across private 
property. Natural drainage ways would not have existed except for the 
``artificial'' source of water.

Impoundments
    Impoundments usually are formed by constructing a dam across a 
channel, constructing a berm across a swale or valley and/or excavating 
a depression. The Corps has long held that constructing a dam across a 
water of the U.S. expands jurisdiction to the entire impoundment [33 
CFR 328.3 (a)(4)]. On the other hand, the Corps also holds that:

   . . . we generally do not consider the following waters to be 
    ``Waters of the United States.'' However, the Corps reserves the 
    right on a case-by-case basis to determine that a particular 
    waterbody within these categories of waters is a water of the 
    United States. EPA also has the right to determine on a case-by-
    case basis if any of these waters are ``waters of the United 
    States.''
  (c) Artificial lakes or ponds created by excavating and/or diking dry 
    land to collect and retain water and which are used exclusively for 
    such purposes as stock watering, irrigation, settling basins, or 
    rice growing.
  (d) Artificial reflecting or swimming pools or other small ornamental 
    bodies of water created by excavating and/or diking dry land to 
    retain water for primarily aesthetic reasons.
  (e) Water-filled depressions created in dry land incidental to 
    construction activity and pits excavated in dry land for the 
    purpose of obtaining fill, sand, or gravel unless and until the 
    construction or excavation operation is abandoned and the resulting 
    body of water meets the definition of waters of the United States 
    (see 33 CFR 328.3(a)) [51 FR 41217, November 13, 1986]

    With regards to (e) above, the Coprs, in it 2000 Notice (65 FR 
12860) on NWPs, indicated that with regards to mining activities, a 10-
year period was an appropriate length of time until a wet, mined 
feature is considered abandoned and thus, jurisdictional. This raises 
the legal issue of whether the Corps has any authority to regulate any 
body of water or wetland that arises from intentional or incidental 
human activities that alter the landscape.
    The manner in which Corps districts treat impoundments varies 
through a wide spectrum of actions. In Valley Vista (Table 1, AA5), the 
AA RO found that a stock pond appeared to be constructed in the upland 
and was connected by a ditch cut in the upland and, therefore, lacking 
a special reason, the impoundment should not be regulated. Conversely, 
in CS 3 (Table 2), the Jacksonville district determined that a borrow 
pit dug in uplands that drains through an upland outfall ditch, to 
roadside ditch, to second roadside ditch, to third roadside ditch and 
finally to San Carlos Bay (a distance of ? one mile) was 
jurisdictional, presumably because a drop of water entering the borrow 
pit could reach navigable waters.
    In Memphis Stone & Gravel (Table 1, AA36), the Review Officer 
concluded that the purpose of ponds (in this case erosion control and 
livestock watering) was immaterial. The pond that had an OHWM was 
jurisdictional and the one that did not was not. Vicksburg District 
adjusted the JD to conform with the ruling.
    Similarly, in both Laycom, Inc. (Table 1, AA13) and Desert Moon 
Shadow Estates (Table 1, AA4), the AA RO upheld the Chicago and Los 
Angeles Districts' determinations, respectively, that the presence of 
an OHWM, whether the result of historical or current conditions, was 
adequate that both an intentionally constructed flood retention pond 
and a bermed impoundment were part of a tributary system and as such 
the appeal had no merit.
    In CS 5 (Table 2), the Sacramento District determined that two 
constructed, animal-waste impoundments were jurisdictional because they 
were located within 100-ft of a ditch that may have been an ephemeral 
drain (based upon a 1909 topographic map that showed neither contours 
nor a blueline channel) that they concluded was tributary to a 
jurisdictional water. The ditch was determined to lack jurisdiction 
under current conditions because an legal fill severed connectivity 
slope from the ponds. Nevertheless, the waste ponds remained 
jurisdictional.
    In CS 6 (Table 2), the Los Angeles District, originally asserted 
jurisdiction over two completely isolated, constructed in upland 
stormwater ponds whose drainage basins consisted of 20 acres of 
abandoned airfield runways and whose inflow was regulated by a valved 
inlet structure. After considerable negotiation on the legality of the 
JD determination, the Corps decided to only regulate vegetated patches 
in one of the basins and authorized the discharge of fill into the 
vegetated patches under a NWP.
    In Jacksonville District, the Corps has found that stormwater ponds 
are jurisdictional, or in the case were the ponds were constructed in 
uplands, that jurisdiction can pass from the outfall ditch, through the 
ponds and through upslope ditches to wetlands. Thus, even if the pond 
itself is not regulated, the Corps will capture isolated wetland if a 
ditch is constructed from the wetland to the pond.

New Theories and/or New Terminology
    A review of jurisdictional determination, indicates that since the 
U.S. v. Wilson decision and subsequent guidance (May 29, 1998) 
distributed by EPA and Corps headquarters, many Corps districts have 
become much more ``creative'' in the reasons that they use for 
asserting jurisdiction under Section 404. The trend is to find 
connection through any means possible. If connectivity is the key to 
Corps jurisdiction, then scientifically a reasonable argument can be 
made that 100 percent of the landscape is jurisdictional because all 
water is connected. For a program where the rules have not been 
overhauled in 17 years, it is amazing the number of new theories or 
terms that continuously creep into Corps decisions. Here are a few new 
concepts that were prominent in my review.
    In Molycorp Inc. (Table 1, AA7), the Los Angeles District 
considered the OHWM in a ``watershed context.'' The RO directed the 
District to consider OHWM in terms of annual and seasonal flow, 
concentrated surface and subsurface flow (not groundwater) and 
biological responses of plants and animals to concentrated flow.
    In Baccarat Fremont Developers (Table 1, AA8), the San Francisco 
District based it jurisdictional call in part on the fact some wetlands 
were adjacent to other wetlands not tributaries. The district argued 
that sheet flow ties the wetlands together. The Administrative Appeal 
RO determined that the appeal had merit since the District decision was 
not supported by substantial evidence and that only wetlands that form 
a ``wetland continuum or complex'' can be considered adjacent to the 
major waterbody. The RO cited the preamble discussion from the 1991 NWP 
publication (56 FR 59113, 1991).
    The insertion of the word ``complex'' into the consideration of 
adjacency is inappropriate, NOT consistent with the 1991 NWP 
publication and contravenes the language of 33 CFR 328.3(a)(7). The 
context of the 1991 Federal Register discussion was related to whether 
a continuous wetland should be subdivided from the major waterbody to 
attempt to determine where the flow is less than 5 cfs and thus, 
headwaters. The pertinent passage is:

  In systems where there is a broad continuum of wetlands, all are 
    considered adjacent to the major waterbody to which it is 
    contiguous. This type of broad system should not be dissected for 
    purposes of determining where the 5 cfs point does or does not 
    exist as it is hydrologically and ecologically part of the same 
    system and should be treated as a whole [56 FR 59113, 1991].

    The use of the term ``continuum'' was simply an attempt to change 
the accusative form of the word ``contiguous'' to the nominative case. 
Perhaps the grammatically better choice of terms would have been 
``contiguity,'' however, ``continuum'' is the more common expression of 
the concept. A ``complex,'' however, as commonly used ecologically and 
in the context of landscapes, means a grouping of different but related 
features. An area that is a mix of intermingled wetlands and uplands 
could be referred to as a ``complex'' or more correctly a ``wetland/
upland complex.'' Thus, the justification for regulating a wetland that 
is adjacent to another wetland that is separated by upland because it 
is a ``complex'' is totally inconsistent with the meaning and I believe 
the intent of the Federal Register statement.
    The ``complex'' theory also was the basis in part for the Buffalo 
District's decision in NEC Transit/Williams, LLC (Table 1, AA41) which 
was upheld by the Administrative Appeal RO. The RO's decision was based 
in part on:

  The District observed that Wetland F had no discernible outlet for 
    water flow and no evidence that water ever flows from the wetland. 
    However, Wetland F is in close proximity to Wetland A and the other 
    wetlands, and contains similar vegetation and soils. Wetland F is 
    determined to be in the same ecosystem and adjacent to other 
    wetland areas.
  The non-hydric soil area between Wetland A and B was disturbed before 
    the July; 5, 2001 site visit.The brush and trees had been cut and 
    removed by large equipment The earth and soils were 
    partiallydisturbed, tracked., and scuffed by the activity However, 
    coupled with past site visit reports and maps there was enough of 
    the area remaining undisturbed to determine the soils were not 
    hydric. Wetland A has a location where water flowed from the lowest 
    point in its rim but had no discernable channel or wetland soils in 
    the area where water overflows. Water overflows rarely or with such 
    low velocities that it leaves no evidence of flow through erosive 
    forces. The length of time the flow occurs is so short that no 
    saturated soils are created. However, since the Corps 
    representatives and others observed water flowing at that location, 
    the district determined that wetland A is not isolated but a 
    tributary to the wetland complex. Also Wetland A is a closely 
    related part of the same ecosystem complex. The character and 
    relationship of Wetlands A and F with the other wetland areas is 
    strongly influenced by the geomorphology and climate of the area. 
    The area is relatively flat with a land type that contains similar 
    wetlands, some functioning continuously as feeder streams and some 
    nearly isolated so that they flow only in heavy rainfall events 
    where water accumulates and overflows to lower areas. From an 
    ecological standpoint, there is no separation of any of the wetland 
    areas on the project site. As noted above, the Corps' ecological 
    judgment about the relationship between waters and their adjacent 
    wetlands is a sufficient basis for making a jurisdictional 
    determination regarding adjacency.

    Ecologically, ground and surface-water form a ``continuum'' 
throughout the landscape. The ``complex'' theory taken to an ecological 
limit justifies regulating the entire watershed of each jurisdictional 
tributary. The regulatory program, however, is not an ecological study, 
but the implementation of policy based on law and supported by science. 
Regulation of private property is not based upon ecology but upon the 
police powers of the State granted by the constitution and balanced by 
socioeconomic considerations. The jurisdictional limit expressed at 33 
CFR 328.3(a)(7) is based upon policy considerations and any alteration 
of it should be based upon APA rulemaking.
    In Hemet, California (Table 2, CS7), the Corps claimed jurisdiction 
over roadside ditches because they ``intercept water that otherwise 
would be jurisdictional.''
    In Desert Moon Shadow Estates (Table 1, AA4), the Corps used the 
``vitality of plants in the vicinity'' to assert jurisdiction over 
ephemeral desert washes.
    In Golden State Developers (Table 1, AA6) the Corps determined that 
a wetland, which was 3400 feet upstream on a nonjurisdictional 
drainage, was jurisdictional because flow could travel down this 
nonjurisdictional tributary to a jurisdictional tributary.

Interstate, Intrastate and Commerce Clause Connections
    The nature of commerce is discussed at 33 CFR 329.6. What 
constitutes interstate commerce is a legal issue that is addressed by 
the Corps at 33 CFR 328.3(a)(3) and the preamble to this part at 51 FR 
41217. It is in essence, the fundamental issue that has driven this 
Advanced Proposed Rulemaking. The Supreme Court in SWANCC has told us 
that at least the use by migratory birds is NOT interstate commerce. 
The issue of what constitutes interstate commerce was the subject of 
several administrative appeals.
    In the Potlach Corp. AA (Table 1, AA11), Walla Walla District ruled 
that a wetland that had grown up in an abandoned, isolated, intrastate, 
nonnavigable pond used in the past to hold logs at a mill was 
sufficient nexus to interstate commerce to be jurisdictional even 
though, the process currently used in the mill did not permit logs to 
be held in a pond. The RO ruled that the appeal had merit because the 
District provided no reasonable evidence that the wetland could be used 
in the future for holding logs related to interstate commerce.
    What constitutes interstate waters is the subject of several of the 
cases evaluated for this report. At 33 CFR 328.3(a)(2), the Corps 
simply states that ``All interstate waters including interstate 
wetlands'' are waters of the U.S. The Corps discusses the extent of its 
jurisdiction under Section 10 of the RHA relative to crossing State 
lines at 33 CFR 329.7:

  A waterbody may be entirely within a State, yet still be capable of 
    carrying interstate commerce. This is especially clear when it 
    physically connects with a generally acknowledged avenue of 
    interstate commerce, such as the ocean or one of the Great Lakes, 
    and is yet wholly within one State. Nor is it necessary that there 
    be a physically navigable connection across a State boundary. Where 
    a waterbody extends through one or more States, but substantial 
    portions, which are capable of bearing interstate commerce, are 
    located in only one of the States, the entirety of the waterway up 
    to the head (upper limit) of navigation is subject to Federal 
    jurisdiction.

    Three important facts arise from this statement: first there must 
be the capability of navigation in the waterbody, second there must be 
interstate commerce conducted and third, that Federal jurisdiction 
stops at the head of navigation.
    In Molycorps Inc. (Table 1, AA7), the Los Angeles District ruled 
that Ivanpah Lake, an ephemeral waterbody and all washes flowing into 
it was jurisdictional because water from it extended 20-30 feet into 
Nevada from California at one point. The entire basis for jurisdiction 
of this physically isolated feature was that the landscape features 
consistent with the current definition of OHWM extended across a State 
boundary. However, it is unknown what the recurrence frequency of 
inundation is in this desert playa lake associated with the landscape 
features attributed to the OHWM.
    More fundamental, however, in Molycorp, Inc. is the lack of any 
actual commerce attributed to navigation on Ivanpah Lake in any 
portion, in either State. Interstate commerce was determined to exist 
solely on the basis of the OHWM crossing the State boundary.
    In CS1 (Table 2) the Santa Cruz River in Arizona was determined to 
be an interstate waterbody because it headwaters which originate in 
southeastern Arizona flow south into Mexico for a short distance and 
then turn back north and continue flowing only in Arizona. 
Topographically, the defined channel of the Santa Cruz River ends on 
the large alluvial plain known as the Santa Cruz Flats. The Corps 
maintains that water can continue to flow from the Santa Cruz River, 
into the Gila River (an intrastate waterbody) and then to the Colorado 
which flows south through Mexico and discharges into the Gulf of 
California.
    The nature of the interstate connection on the Colorado River and 
the upper reach of the Santa Cruz River is very different from that on 
the lower reach of the Santa Cruz River. In the case of the Colorado 
River and the upper reach of the Santa Cruz River, a very reasonable 
case can be made that pollutants that are discharged in the United 
States could cross an international boundary and adversely effect the 
waters of another country. In the case of the lower Santa Cruz River, 
i.e., from the point at which the River reenters the United States, 
there can be no effect on another country of a pollutant discharged 
into it, since the flow remains entirely within Arizona. Absent any 
effect on interstate commerce, can the lower Santa Cruz River be 
legitimately defined as an interstate water or is their an upper limit 
to the commerce connection similar to the head of navigation under 
Section 10 of the RHA.
    Compounding the issues associated with the lower Santa Cruz River 
is the fact that after the River reenters the United States, it flows 
through the Tohono O'odham Indian Reservation prior to reaching the 
Tucson metropolitan area. This raises the issue of whether water that 
flows entirely within one State but through tribal lands can legally be 
deemed to be interstate waters with an effect on interstate commerce.

Conflicting Determinations
    As discussed above, in Molycorp Inc. (Table 1, AA7), the Los 
Angeles District maintained that washes which don't have a continuous 
OHWM for the last 1000--1500 feet before reaching the ephemeral Ivanpah 
Lake were jurisdictionally connected. However, in the same time period 
at Moorpark, California (Table 2, CS8), the same reviewer for the Corps 
found that ``Nearly all of these ephemeral drainage courses exhibit an 
ordinary high water mark (OHWM) at higher elevations, but the OHWM for 
each disappears at lower elevation, presumably because of insufficient 
hydrology in light of the porous substrate, onsite vegetation, and 
reduced slopes'' and declined to take jurisdiction. In the Molycorp 
Inc. project, the Corps would have lost control over a large tract of 
land, whereas in the Moorpark project, where the owner wanted the Corps 
to assert jurisdiction, the District avoided having to deal with the 
Endangered Species Act (ESA) by declining jurisdiction and left the 
owner having to go through the more arduous ESA Section 10 permit 
process, than Section 7 consultation.

Wetlands
    The single-most debated issue throughout the long and often-
volatile history of deciding what is a ``wetland'' for regulatory 
purposes, is the issue of the frequency, duration and proximity to the 
land surface of water. In 1991, when Congress prohibited expenditure of 
funds (through the Water Resources Appropriation Bill of 1992) in 
reliance upon the 1989 wetland delineation manual, the Corps reverted 
to its 1987 delineation manual. Since only wetlands (not open water 
bodies) that are simply neighboring (i.e., no surface connection 
through a wetland or a channel) can be regulated as ``adjacent'' (33 
CFR 328.3), it is also crucial to a reasoned interpretation of SWANCC 
to specify the frequency, duration and proximity to the land surface of 
water necessary to constitute a jurisdictional wetland.
    The ``official'' requirement on paper that is in effect today is 
elucidated in the 1987 manual and in the guidance questions and answers 
published by the Corps headquarters in 1991 and 1992. In pertinent part 
they provide the following:

  For an area to accurately be characterized as having wetlands 
    hydrology, it must be frequently inundated or saturated to the 
    surface for long duration. The requirement that a site be inundated 
    or saturated to the surface either permanently or periodically is 
    stated in Part I: Technical Guidelines of the 1987 Manual:

    The following definition, diagnostic environmental characteristics, 
    and technical approach comprise a guideline for the identification 
    and delineation of wetlands: Diagnostic environmental 
    characteristics:
    Hydrology. The area is inundated or saturated either permanently or 
    periodically at mean water depths < 6.6 ft. or the soil is 
    saturated to the surface at some time during the growing season of 
    the prevalent vegetation [p.9].

    The 1987 Manual defines the term ``saturated soil conditions,'' a 
term which is taken directly from the definition of wetland (33 CFR 
328.3b), as:

  A condition in which all easily drained voids (pores) between soil 
    particles in the root zone are temporarily or permanently filled 
    with water to the soil surface at pressures greater than 
    atmospheric [page A11].

    Thus, saturated soil conditions only exist from the water table 
down. The capillary fringe above the water table, being caused by 
surface tension, i.e., negative pressure, does not meet the definition. 
The water table is defined in the 1987 Manual as:

  The upper surface of groundwater or that level below which the soil 
    is saturated with water. It is at least 6 in. thick and persists in 
    the soil for more than a few weeks [p. A14, emphasis added].

    The 1987 Manual contains numerous other statements clarifying what 
constitutes wetland hydrology including:

  The term ``wetland hydrology'' encompasses all hydrologic 
    characteristics of areas that are periodically inundated or have 
    soils saturated to the surface at some time during the growing 
    season. . . . Such characteristics are usually present in areas 
    that are inundated or have soils that are saturated to the surface 
    for sufficient duration to develop hydric soils and support 
    vegetation typically adapted for life in periodically anaerobic 
    soil conditions'' [p.34].

    Although the length of time that an area must be inundated or 
saturated to the surface can vary according to the hydrological/soil 
moisture regime, the 1987 Manual provides guidance as to the duration 
of saturation required for a site to have wetlands hydrology at Table 5 
[p. 30]. In summary, Table 5 indicates that areas that are saturated 
more than 12.5 percent of the growing season have wetland hydrology 
while those that are saturated for less than 5 percent of the growing 
season do not. It further states that many areas that are saturated 
between 5 and 12.5 percent of the growing season are not wetlands 
[emphasis added].
    The term `Duration (inundation/soil saturation)' is defined as:

  The length of time during which water stands at or above the soil 
    surface (inundation), or during which the soil is saturated. As 
    used herein, duration refers to a period during the growing season 
    [p. A4].
    On October 7, 1991, Corps headquarters issued Questions and Answers 
on 1987 Corps of Engineers Manual (Studt 1991) to further clarify the 
concept. The answer to Question 8 in pertinent part states:

    Generally speaking, areas which are seasonally inundated and/or 
saturated to the surface for more than 12.5 percent of the growing 
season are wetlands. Areas saturated to the surface between 5 percent 
and 12.5 percent of the growing season are sometimes wetlands and 
sometimes uplands. Areas saturated to the surface for less than 5 
percent of the growing season are nonwetlands. . . . If an area is only 
saturated to the surface for a period of between 5 percent and 12.5 
percent of the growing season and no clear indicators of wetland 
hydrology exist (i.e., recorded or field data; also see answer #7 
above), then the vegetation test should be critically reviewed. . . . 
The actual number of days an area is inundated and/or saturated to the 
surface for an area to be called a wetland varies [p. 4].
    The presence of surface water or near-surface groundwater for short 
duration at frequent intervals or at infrequent intervals for long 
duration during the growing season, does not constitute wetland 
hydrology. In fact, the definition of nonwetlands in the 1987 Manual 
specifically addresses this point:

  Nonwetlands include uplands and lowland areas that are neither 
    deepwater aquatic habitat, wetlands, nor other special aquatic 
    sites. They are seldom or never inundated, or if frequently 
    inundated, they have saturated soils for only brief periods during 
    the growing season [p.15].

    The 1987 Manual defines ``Frequency'' (inundation or soil 
saturation) as:

  The periodicity of coverage of an area by surface water or soil 
    saturation. It is usually expressed as the number of years (e.g., 
    50 years) the soil is inundated or saturated at least once each 
    during part of the growing season per 100 years or as a 1-, 2-, 5-
    year, etc., inundation frequency [p. A5].

    Thus, the three ``official'' documents that specify the hydrology 
requirements for a jurisdictional wetland can be stated as on average, 
an area must be inundated or the soils saturated to the surface in more 
than half the years (1 out of 2, 5 out of 10, or 50 out of 100) for 
more than 12.5 percent of the growing season to conclude with 
reasonable certainty that the area has wetland hydrology.
    Unfortunately, when the Waterways Experiment Station placed an 
electronic version of the 1987 manual on the World Wide Web in the late 
1990's which purportedly included the 1991 and 1992 question and answer 
guidance, it subverted the hydrology ``criterion.'' In an apparent 
effort to retain as much of the philosophy that engendered the 1989 
Manual's inclusiveness, the hydrology ``criterion'' was summarized as 
and government-sponsored training courses are based upon the following 
statement:

  . . . an area has wetland hydrology if it is inundated or saturated 
    to the surface continuously for at least 5 percent of the growing 
    season in most years (50 percent probability of recurrence).

    In practice today, many Corps regulators in routine matters and EPA 
and DOJ in enforcement matters maintain that all that is required for 
an area to be deemed to have wetland hydrology (and thus, almost 
invariably be called a wetland) is that saturation be present anywhere 
within the top 12 inches of the soil for 5 percent of the growing 
season every other year--concepts very similar to those set forth in 
the 1989 Manual. For example, Lichvar et al. (2002) incorrectly 
attributes a 1--2 week duration (5 percent of the growing season) to 
Corps headquarter's guidance from March 1992. (See also Administrative 
Appeal Decisions: Mr. Allen Gordon, Table 1, AA48; Tammany Holdings, 
Table 1, AA28.)
    It defies credulity to believe that an area that is saturated at 
say 11 inches below the surface for 7 days out of 730 days (every other 
year) will function in any manner different than the surrounding 
landscape that is nonwetland. Certainly no credible research has ever 
shown such to be the case. The practical application of these mythical 
``thresholds'' subverts the provision of the 1992 Water Appropriations 
Act which prohibited the Corps from spending any of its regulatory 
budget in reliance upon the 1989 Manual until it had been subjected to 
the APA process--which has never occurred.. While it can be debated 
whether water present every other year is consistent with the judicial 
rulings in Pend Oreille and Howard v. Ingersoll, at least such a 
``criteria,'' in theory, is quantifiable, although in practice, the 
vagaries of annual precipitation patterns often require a complicated 
analysis.

            DISINGENUOUS PROMISES AND LACK OF RESPONSIVENESS

    While the Corps and EPA are very quick to propose rulemaking that 
has an expansive impact on Section 404 jurisdiction, they continuously 
make then disregard promises made to the public as well as actions 
mandated by the Congress that would have a limiting effect on 
jurisdiction. On January 24, 1990, the Corps disseminated a joint EPA/
Corps memorandum entitled Clean Water Act Section 404 Jurisdiction over 
Isolated Waters in Light of Tabb Lakes v. United States. In it they 
stated:

  ``Instead, the EPA and Corps intend to undertake as soon as possible 
    an APA rulemaking process regarding jurisdiction over isolated 
    waters.''

    They never did.
    On May 29, 1998, in a memorandum entitled Guidance for Corps and 
EPA Field Offices Regarding Clean Water Act Section 404 Jurisdiction 
Over Isolated Waters in Light of United States v. James J. Wilson they 
stated:

  In the near future, EPA and the Corps intend to promulgate a rule 
    addressing the jurisdictional issues discussed in this guidance, 
    with full opportunity for public review and comment.

    They never did.
    The Water Resources Appropriations Act of 2001 provided over $125 
million dollars for the Corps Regulatory program. Expenditure of that 
money required eight specific tasks of the Corps:
    For expenses necessary for administration of laws pertaining to 
regulation of navigable waters and wetlands, $125,060,000, to remain 
available until expended: Provided, That the Secretary of the Army, 
acting through the Chief of Engineers, is directed to use funds 
appropriated herein to:

  (1) by March 1, 2001, supplement the report, Cost Analysis For the 
    1999 Proposal to Issue and Modify nationwide Permits, to reflect 
    the nationwide Permits actually issued on March 9, 2000, including 
    changes in the acreage limits, preconstruction notification 
    requirements and general conditions between the rule proposed on 
    July 21, 1999, and the rule promulgated and published in the 
    Federal Register;
  (2) after consideration of the cost analysis for the 1999 proposal to 
    issue and modify nationwide permits and the supplement prepared 
    pursuant to this Act and by September 30, 2001, prepare, submit to 
    Congress and publish in the Federal Register a Permit Processing 
    Management Plan by which the Corps of Engineers will handle the 
    additional work associated with all projected increases in the 
    number of individual permit applications and preconstruction 
    notifications related to the new and replacement permits and 
    general conditions. The Permit Processing Management Plan shall 
    include specific objective goals and criteria by which the Corps of 
    Engineers' progress toward reducing any permit backlog can be 
    measured;
  (3) beginning on December 31, 2001, and on a biannual basis 
    thereafter, report to Congress and publish in the Federal Register, 
    an analysis of the performance of its program as measured against 
    the criteria set out in the Permit Processing Management Plan;
  (4) implement a 1-year pilot program to publish quarterly on the U.S. 
    Army Corps of Engineer's Regulatory Program website all Regulatory 
    Analysis and Management Systems (RAMS) data for the South Pacific 
    Division and North Atlantic Division beginning within 30 days of 
    the enactment of this Act; and
  (5) publish in Division Office websites all findings, rulings, and 
    decisions rendered under the administrative appeals process for the 
    Corps of Engineers Regulatory Program as established in Public Law 
    106-60;
  (6) Provided further, That, through the period ending on September 
    30, 2003, the Corps of Engineers shall allow any appellant to keep 
    a verbatim record of the proceedings of the appeals conference 
    under the aforementioned administrative appeals process;
  (7) Provided further, That within 30 days of the enactment of this 
    Act, the Secretary of the Army, acting through the Chief of 
    Engineers, shall require all U.S. Army Corps of Engineers Divisions 
    and Districts to record the date on which a section 404 individual 
    permit application or nationwide permit notification is filed with 
    the Corps of Engineers; and
  (8) Provided further. That the Corps of Engineers, when reporting 
    permit processing times, shall track both the date a permit 
    application is first received and the date the application is 
    considered complete, as well as the reason that the application is 
    not considered complete upon first submission.

    To the best of my knowledge the Corps has complied with only three 
of the eight requirements and has otherwise not complied with the 
deadlines established in the 2001 Appropriations Act for Cost Analysis 
Supplement (1), Permit Processing Management Plan (2), Report to 
Congress (3), Publish Data Pilot (4), and Complete Application 
Determination (8). Item 2, the Permit Processing Management Plan, would 
contain guidance on interpretations that would bring some consistency 
to the Section 404 Program.
    As of this Hearing, we still do not have an APA rule that defines 
clear and concise policies with regard to isolated waterbodies or for 
that matter any of the other jurisdictional issues that I have raised 
above. The Corps and EPA simply make promises and then procrastinate 
with the hope that no one will ever call them to task. The best we have 
to date is an ``Advanced Notice of Proposed Rulemaking'' published in 
the Federal Register on January 15, 2003. We have already had at least 
two advanced notices--one in 1990 and one in 1998. Now the agencies are 
hoping that they can again procrastinate and not actually go forward 
with rulemaking.
    In the May 29, 1998 joint memorandum, the Corps and EPA also wrote:

  Although Tabb Lakes, Ltd. v. United States, (715 F. Supp. 726, aff'd 
    without opinion, 885 F.2d 866 (4th Cir., 1989)), concluded that 
    EPA/Corps guidance could not be cited as the legal basis for 
    interstate commerce nexus using migratory birds because that 
    guidance had been issued without notice and comment, the decision 
    did not prohibit the use of migratory birds to establish a 
    connection to interstate commerce under the Clean Water Act. 
    Consequently, notwithstanding the Fourth Circuit's decision in Tabb 
    Lakes, Corps and EPA field offices should continue to assert CWA 
    jurisdiction over all isolated, intrastate water bodies that serve 
    as habitat for migratory birds.

    The agencies were put on notice as early as in 1989 that the use of 
migratory birds as a test for interstate commerce was illegal. They 
chose to ignore it. While the SWANCC decision has eliminated the future 
use of the ``migratory bird rule,'' to my knowledge no one has 
addressed the millions of dollars that the public spent during the 
period from 1984 to 2001 when it was implemented, and the Corps 
illegally regulated isolated, intrastate, non navigable waterbodies. 
Moneys spent to work though the complex permit process. Moneys lost 
because of time delays in projects. Money spent to defend against 
alleged violations. Moneys spent for mitigation, restoration and as 
penalties. How many people were incarcerated because of violation of 
the CWA jurisdiction based upon the ``migratory bird rule?'' All of 
which occurred as the result of an uncodified ``rule'' instituted by 
the EPA, ignoring the APA and with the power to compel the Corps to 
adopt it. The agencies have run rough-shod over the public with no real 
accountability.

                              CONCLUSIONS

    The Corps and EPA, indeed the entire body of Federal water-resource 
agencies, for years has been telling the public what wetlands and 
waterways are, why they are important and why they must be regulated 
and protected by the Federal Government. Yet there is a duplicity in 
what the public is being led to believe are the landscape features for 
which ever-increasing, millions of dollars in tax revenues and private 
funds are expended each year to regulate.
    Slides 1-5 and 9-10 in the attached presentation convey the images 
that the agencies portray to the public as regulated wetlands: lush and 
often exotic vegetation, plenty of water and colorful waterfowl, wading 
birds and wildlife. How could anyone but the most callous despoiler of 
the environment not agree that protection and regulation is important. 
Yet, few of such landscape features, are impacted anymore. The 
regulated public has recognized their value and generally, except for 
occasional transportation crossings, avoids impacting them.
    The battles today between landowners and the Federal Government 
generally are waged over the type of landscape features depicted in 
slides 6-8, 11-17, 20 and 21. They are the roadside ditches, the 
stormwater ditches, the drainage ditches and irrigation ditches 
excavated in dry land. They are the borrow pits, the stormwater 
management ponds, the sewage treatment lagoons and animal feed lot 
waste holding ponds that are no longer actively used for the original 
purpose for which they were constructed. They are natural landscapes 
that may have near-surface groundwater during the winter until leaf-
buds open and then the plants rapidly dewater the landscape early in 
the spring and for the rest of the year. They are the meadows and woods 
where the water table need only reach to within 12 inches of the 
surface for as little as 7 days every other year, i.e., 7 out of 730 
days.
    Section 101(b) of the CWA states in pertinent part:

  It is the policy of the Congress to recognize, preserve, and protect 
    the primary responsibilities and rights of States to prevent, 
    reduce and eliminate pollution, to plan the development and use 
    (including restoration, preservation and enhancement) of land and 
    water resources . . .

    It is my experience, that many individuals in EPA and the Corps, 
see Section 404 as the best game in town when it comes to side-stepping 
the rights of the States as specified in our Constitution and 
implementing land management decisions by the Federal Government. The 
404 Program as currently implemented is in many cases abusive to the 
public and decisions rendered are often arbitrary and capricious. 
Because the jurisdictional limits of the 404 Program are so poorly 
defined, there are as many different concepts of what constitutes 
waters of the United States as there are regulators.
    Probably the single most important reason, that confusion and 
inconsistencies exist in the Section 404 Program is the fact, that 
there are two Executive agencies attempting to implement it. Each has 
its own views and perspectives. Each has a view of the correct role of 
the Federal Government in what, Constitutionally, should be the primary 
responsibility of the respective States.
    While the Corps is supposed to implement the permit program, since 
1979, when Attorney General Civiletti determined that EPA has the 
ultimate authority to determine what is jurisdictional under all 
Sections of the CWA including Section 404, there have been major 
disagreements, often very acrimonious, between the staff of the two 
agencies. It is quite possible that the full extent of the animosity 
that has existed is not even known to the representatives of the 
agencies that are testifying at this hearing.
    The public has suffered with inconsistent and often arbitrary and 
capricious decisions that have had dramatic effects on their lives and 
the use of their private property because the lead agencies, the Corps 
and EPA, have differing perspectives as do the review agencies, FWS and 
NMFS. To compound the inconsistencies, the Corps boasts that its 
decentralized management style is a benefit to the public. What it 
fails to recognize is that there is a vast difference between 
decentralized and inconsistent management.
    It is inconsistent management that pervades the 404 Program and 
plagues the Nation. A year ago, a colleague of mine and I decided that 
there was a need to provide a training course on the limits of Corps 
jurisdiction. We saw that this was especially needed in the dryland 
West. Despite the fact that we are both highly versed in Corps 
regulatory policy, we came to the conclusion that we could not offer 
such a course because there was no consistent policy being implemented. 
What the public is told by the Corps in one part of the Nation is not 
necessarily what can be found in its regulations or what it is likely 
to be told in another.
    It is crucial that all of the terms, which the Corps uses to 
specify the limits of its jurisdiction, be accurately and unambiguously 
defined. They must be promulgated, to the extent that the limits 
specified are consistent with the CWA and the Constitution, through the 
formal procedures developed for implementation of the Administrative 
Procedures Act (APA). Many of the Corps definitions related to 
jurisdiction have not been promulgated through the APA process.
    The most fundamental technical issue that must be addressed through 
rulemaking in light of SWANCC is what is the necessary frequency, 
duration and relation to the land surface of water to constitute a 
``navigable water'' consistent with the language of Section 404 of the 
CWA. It is the same issue that has needed to be addressed for decades. 
This issue applies to how far from traditionally navigable waters, 
natural streams should be regulate, which and how far distant drainage 
and irrigation ditches should be regulated and what areas should be 
called wetland navigable waters.
    The longitudinal limit of Corps jurisdiction under Section 404 must 
be defined in relation to the effect that the discharge of dredged or 
fill material may have on interstate and/or foreign, commercial 
navigation in traditionally navigable waters.
    Other definitions need to be addressed as well. The ``neighboring'' 
part of the definition of the term ``adjacent'' must be redefined to 
specify that it includes those morphologically disconnected wetlands 
that receive surface flow from a jurisdictional tributary (what ever 
that is) on a predictably, frequent basis. Today, districts of the 
Corps, might determine that wetlands miles from a stream in the 100-
year floodplain are adjacent. Others have found that 200--3500 feet 
defines the limit. Each regulator seems to make it up on the fly.
    For a wetland to be deemed ``adjacent'' and, thus, jurisdictional 
under Section 404, the wetland should be dependent for its existence, 
at least in part, upon water received from the tributary. Thus, the 
predictably regular inundation from the tributary should have a 
recurrence frequency of no less than every 2 years, and perhaps more in 
keeping with court rulings on OHWM, it should be at less than a 1-year 
recurrence frequency, i.e., ordinarily occur.
    Water movement by sheet flow or as groundwater TO a jurisdictional 
tributary should NOT be determinant. Water on virtually all landscapes 
moves toward stream channels either as overland flow or as ground-water 
discharge. There is no scientific or legal basis to separate-out 
morphologically disconnected wetlands from the rest of the nonwetland 
landscape and regulate them. It has been a long-standing failing of the 
404 Program by its fixated emphasis on wetlands, to suggest that they 
are inherently more valuable or have greater function than the 
nonwetland landscape. By so doing, many acres of nonwetlands have been 
destroyed that have had higher overall ecological function and more 
value to society than the wetlands that were avoided.
    There is no definition of the term ``tributary'' within the context 
of Section 404, this despite its central role in the definition of 
``waters of the United States.'' It must be defined and its upper 
limits determined by factoring frequency and duration of flow and 
distance to a traditionally navigable water, such that there can be a 
demonstrated effect on navigation from a discharge of dredged or fill 
material. Not by the mere presence of an OHWM. The public should not 
have to rely upon discussions of the limits of jurisdiction found only 
in uncodified preambles to Corps regulations to determine what is and 
is not a water of the U.S. For almost two decades the public was 
subjected to the uncodified agency whim concerning migratory birds 
until the Supreme Court struck it down. The Corps and EPA Memorandum of 
Agreement on mitigation, contains similarly illegal concepts that have 
not been promulgated in accordance with the Administrative Procedures 
Act (APA). Mandatory compensatory mitigation is now spoken of as a 
codified rule (much as the migratory bird rule was) as opposed to a 
concept without basis in the CFR.
    The terms ``perennial'', ``intermittent'' and ``ephemeral'' are 
defined in the Corps nationwide Permit Notice from 2000, but are not 
codified. All definitions related to jurisdiction must be defined and/
or redefined through application of the Administrative Procedures Act 
and codified, not simply instated through a permit notice. The Corps 
should redefine these terms so that they can be determined using flow 
data. The USGS has standard definitions of each that have been in place 
since 1923 (Meizner, O.E. 1923). These should be adopted.
    The term ``isolated'' is defined in the Corps nationwide Permit 
Notice from 2000 but not codified. All definitions related to 
jurisdiction must be defined and/or redefined through application of 
the APA and codified, not simply instated through a permit notice. As 
currently defined, isolated is simply the absence of direct connection 
or the absence of adjacency. If the Corps would produce an adequate 
definition of the limits of its jurisdiction under Section 404, then 
there would be no need for any definition of the term isolated.
    Many of the landscape features that the Federal Government 
regulates today do not meet the definition of wetlands promoted by the 
National Research Council (1995) in Wetlands: Characteristics and 
Boundaries, and in fact, do not meet an honest reading of the 1987 
Wetland Delineation Manual (Environmental Laboratory 1987). My reading 
of the NRC report is that it would not classify as wetlands most areas 
where the water table infrequently or never reaches closer to the 
surface than 12 inches for 7 days during the spring.
    As for ``tributaries,'' cases across the country reveal that every 
roadside ditch, culvert and storm sewer is likely as not to be called 
tributary. The Corps should not regulate any constructed ditches that 
are excavated in upland landscapes, nor should it regulate storm 
drains, sewers, pipes, agricultural drain tiles, gutters and other 
artificial conveyances, whether they potentially carry water to a 
traditionally navigable water or not. Ditches and other such 
conveyances are point sources and any pollutant arising from them that 
reaches a traditionally navigable waterbody should be regulated under 
the NPDES program. The Corps jurisdiction under Section 404 is limited. 
The Corps recognized this in 1974 and Chief Justice reaffirmed it in 
the SWANCC decision.
    In a recent addition to the Corps Headquarters' Regulatory Branch 
Web site entitled Information on West Nile Virus, the discusses the 
question Should wetlands be drained to control mosquitoes? The Corps 
answer was:

  Because the Culex mosquito can breed in very small amounts of water, 
    eliminating temporary standing water in plastic containers, 
    discarded tires, or other water-holding containers around one's 
    property can greatly reduce breeding areas. Any stagnant water in 
    rain barrels, irrigation ditches, clogged gutters, backyard home 
    septic systems, and road-side ditches can serve as breeding sites. 
    The difference between these water-holding places and wetlands is 
    the presence of mosquito-eating predators. Wetlands are home to a 
    host of mosquito-eating beetles, backswimmers, water striders, 
    dragonfly larvae, etc. making them significantly less ideal 
    breeding sites for Culex mosquitoes.

    Thus, on the one hand the Corps defends natural wetlands by 
condemning ditches, etc., while across the Nation, ditch after roadside 
ditch is being identified as wetlands and other navigable waters under 
Section 404 and gives the regulatory protection afforded natural 
waterbodies through the requirements to obtain permits to fill them and 
to compensate for their loss.
    There are many thousands of miles of conveyance that transport 
sediments into natural waters including traditionally navigable waters, 
that the Corps chooses not to regulate. They do not regulate all 
roadside ditches--only selective ones. The do not regulate all culverts 
and piped conveyances--only selective ones. This emphasizes the point 
that water pollution cannot be prevented by simply calling some 
channeled conveyances ``waters of the U.S.'' as has been the trend in 
the last several years. Which channels are regulated and which are not, 
generally are not based upon technically defensible criteria, but more 
often upon the personal aesthetic of the individual regulator.
    The fact that so many administrative appeals result in a decision 
that districts did not adequately document their position supports our 
contention that ``it's jurisdictional because I say it's 
jurisdictional'' is frequently used by Corps regulators. The fact that 
in many cases, after an appeal is found to have merit, districts simply 
bolster their records and make the same decision again points to the 
ineffectiveness of the appeal process itself. The rules governing 
appeals eviscerate the role of Review Officer (RO). In many of the 
Administrative Appeal (AA) decisions, the RO appeared to make 
reasonable and fair decisions. However, as written, the rules allow the 
districts to amend case files and in many instances retain the same 
dubious jurisdictional determinations.
    With regards to technical points of jurisdiction, too often the RO 
indicates that the rules do not allow for the RO to independently make 
judgment decisions. In such cases, it would be more appropriate for the 
RO to seek technical advice from an ``independent'' third party [the 
logical choice is the Environmental Laboratory staff in Vicksburg, 
Mississippi through the Wetland Research Assistance Program (WRAP) 
[although the independence might be questioned] rather than simply 
giving deference to the districts opinion.
    In the final analysis, Congress must dictate that an APA rulemaking 
proceed promtly and encompass the full breadth of jurisdictional issues 
that exist. Congress must follow-up on the agencies' performances. The 
Corps and EPA must not be allowed to slide for another decade without 
clarifying the limits of Federal jurisdiction. Furthermore, Congress 
would serve the needs of the public if it would state clearly and 
concisely in the law, the maximum extent of jurisdiction through 
amendment of the Clean Water Act.

Literature Cited

Dunne, T. and L. B. Leopold, 1978. Water in environmental planning. W. 
    H. Freeman and Company: New York, pp. 1-818.
Environmental Laboratory. 1987. Corps of Engineers wetlands delineation 
    manual. Technical Report Y-87-1. US Army Engineer Waterways 
    Experiment Station, Vicksburg, Miss.
Heath, R. C. 1983. Basic ground-water hydrology. U.S. Geological 
    Survey, Water-Supply Paper 2220, Washington, DC. 84 p.
Leopold, Luna B. 1994 A View of the River. Harvard Univ. Press, 
    Cambridge, MA, 298 pp.
Meizner, O.E. 1923. Outline of ground-water hydrology, with 
    definitions. USGS. Water-Supply Paper 494, 71 p.
National Research Council. 1995. Wetlands: characteristics and 
    boundaries. William M. Lewis, Jr., chair., Committee on 
    Characterization of Wetlands. National Academy Press. Washington, 
    DC.
Studt, J. 1997. NRCS field indicators of hydric soils. Directorate of 
    Civil Works, Army Corps of Engineers. Washington, DC.
Williams, A. E. 1992. Clarification and interpretation of the 1987 
    Manual. Directorate of Civil Works, Army Corps of Engineers. 
    Washington, DC.
Winter, T.C., J.W. Harvey, O.L. Franke and W.M. Alley. 1999. 
    Groundwater and surface water a single resource. USGS Circ. 1139. 
    Denver, CO. 79 p.

    
    
    
                                 ______
                                 
  Responses of Robert J. Pierce to Additional Questions from Senator 
                                Jeffords

    Question 1. In Your testimony, you state, ``Congress would serve 
the needs of the public if it would state clearly and concisely in the 
law, the maximum extent of jurisdiction through amendment of the Clean 
Water Act.'' In your oral testimony, you state,``. . . rulemaking is 
essential to clarify this [whether ditches, ephemeral drains, waste 
ponds, ephemeral wet spots are navigable waters.]'' Can you describe 
this apparent contradiction?
    Response. I see no contradiction in the two statements. First, and 
in general terms, the executive branch must always comply with the 
Administrative Procedures Act (APA) and conduct rulemaking to implement 
any new or changed legislation.
    At a more practical level, however, the history of Section 404 of 
the CWA makes it clear that the public cannot count on any, one branch 
of the Federal Government to make reasoned reforms. In fact, without 
any change in legislation since 1977, and with only minor APA changes 
in the Code of Federal Regulations (CFR) since 1986, the Environmental 
Protection Agency (EPA) and the Corps of Engineers (COE) have 
continuously increased the geographic extent of Section 404 navigable 
waters jurisdiction while at the same time reducing the utility of 
nationwide Permits (NWPs) which are the only mechanisms that provide 
the public with a rapid permit response. The result is that the public 
spends ever-increasing time and money to crawl through a permit process 
that is protecting roadside ditches, animal waste ponds and so-called 
``wetlands'' that need only have water within 12 inches of the surface 
for as little as 7 days (five percent of the growing season) out of 730 
days (frequency of one out of 2 years).
    Indeed, the EPA and COE response to Solid Waste Agency of Northern 
Cook County. v. Army Corps of Engineers (SWANCC) has not been to 
retract jurisdiction as would be expected by the plain reading of the 
decision, but to ignore their own written policies and to construct any 
and all ``connections'' to navigable waters to retain jurisdiction over 
isolated waterbodies and to further extend Federal jurisdiction. Thus, 
today we see ``tributary'' status assigned to roadside ditches 
excavated in uplands, ``underground ditches'' or storm sewers, 
irrigation ditches, and agricultural drain tiles and connectivity 
established by sheet flow over nonjurisdictional lands and water 
flowing below ground and through nonjurisdictional, stormwater ponds. 
Some district and circuit courts have upheld these jurisdictional 
extensions while others have not. Judicial resolution of the issues 
apparently must await Supreme Court rulings.
    While I believe that Congress is ultimately responsible for the 
ambiguous nature of the 404 Program and should take the initiative to 
correct inconsistencies, Congress apparently lacks the will to do this 
as witnessed by its failure to act on numerous efforts since 1977 to 
reform Section 404 of the CWA. Indeed, it is my opinion that for 
Congress to redraft Section 404 consistent with the Constitution, it 
would have to limit jurisdiction to the ``navigable waters'' defined 
under the Rivers and Harbors Act (RHA) of 1899. Section 9 of the RHA of 
1899 establishes the full scope of Federal jurisdiction under the 
Commerce Clause of the Constitution by prohibiting certain activities 
in the first sentence of the Section and then limiting that prohibition 
in the last sentence:

  That it shall not be lawful to construct or commence the construction 
    of any bridge, dam, dike, or causeway over or in any port, 
    roadstead, haven, harbor, canal, navigable river, or other 
    navigable water of the United States until the consent of Congress 
    to the building of such structures shall have been obtained and 
    until the plans for the same shall have been submitted to and 
    approved by the Chief of Engineers and by the Secretary of Army: 
    Provided, That such structures may be built under authority of the 
    legislature of a State across rivers and other waterways the 
    navigable portions of which lie wholly within the limits of a 
    single State, provided the location and plans thereof are submitted 
    to and approved by the Chief of Engineers and by the Secretary of 
    Army before construction is commenced: And provided further, That 
    when plans for any bridge or other structure have been approved by 
    the Chief of Engineers and by the Secretary of Army; it shall not 
    be lawful to deviate from such plans either before or after 
    completion of the structure unless the modification of said plans 
    has previously been submitted to and received the approval of the 
    Chief of Engineers and of the Secretary of Army. The approval 
    required by this section of the location and plans or any 
    modification of plans of any bridge or causeway does not apply to 
    any bridge or causeway over waters that are not subject to the ebb 
    and flow of the tide and that are not used and are not susceptible 
    to use in their natural condition or by reasonable improvements as 
    a means to transport interstate or foreign commerce. [Emphasis 
    added].

    By extension, such Constitutional limitation on jurisdiction 
applies to all subsequent sections of the RHA including Section 10. 
Apparently, the 56th Congress was more concerned about usurping State's 
rights under the Constitution than have been those since the 95th 
Congress last amended the CWA and stated:

  It is the policy of the Congress to recognize, preserve, and protect 
    the primary responsibilities and rights of States to prevent, 
    reduce, and eliminate pollution, to plan the development and use 
    (including restoration, preservation, and enhancement) of land and 
    water resources . . . [Section 101(b), CWA]

    The COE reached the conclusion that Section 404 ``navigable 
waters'' coincided with RHA ``navigable waters'' in 1974. On April 3, 
1974, the COE published final regulations after review of comments 
received on the May 10, 1973 proposal. In the Preamble to the final 
regulation, the following statements were made:

  Section 209.120(d)(1). Several comments and questions were received 
    concerning the different definitions which were assigned to the 
    terms ``navigable waters of the United States'' and ``navigable 
    waters''. In this regard, it is noted that the Corps regulatory 
    authority under the River and Harbors Act of 1899 (33 U.S.C. 401 et 
    seq.) speaks in terms of ``navigable waters of the United States''. 
    This term has received the benefit of over 100 years of judicial 
    definition and interpretation which has largely been based on the 
    constitutional extent to which the authority of the United States 
    can extend over the nation's waterways. Recognizing that the extent 
    of Federal authority over the nation's waterways has been an 
    evolutionary one and that recent judicial decisions have provided 
    additional guidance and direction as to the scope and extent of 
    this jurisdiction, the Corps recently undertook an extensive review 
    of all of the judicial decisions in this area, and substantially 
    revised and refined its administrative definition of this term to 
    more accurately reflect and incorporate this judicial guidance. 
    This revised definition, which was published in the Federal 
    Register on September 9, 1972 (37 FR 18289) and has been 
    subsequently included in the Code of Federal Regulations (33 CFR 
    209.260) asserts regulatory authority over many heretofore 
    unregulated waterways, as well as establishing the geographical 
    limits of this jurisdiction.

  Section 404 of the FWPCA uses the term ``navigable waters'' which is 
    later defined in the Act as ``the waters of the United States.'' 
    The Conference Report, in discussing this term, advises that this 
    term is to be given the ``broadest possible Constitutional 
    interpretation unencumbered by agency determinations which have 
    been made or may be made for administrative purposes.'' We feel 
    that the guidance in interpreting the meaning of this term which 
    has been offered by this Conference Report--to give it the broadest 
    possible Constitutional interpretation--is the same as the basic 
    premise from which the aforementioned judicial precedents have 
    evolved. The extent of Federal regulatory jurisdiction must be 
    limited to that which is Constitutionally permissible, and in this 
    regard, we feel that we must adopt an administrative definition of 
    this term which is soundly based on this premise and the judicial 
    precedents which have reinforced it. Accordingly, we feel that in 
    the administration of this regulatory program both terms should be 
    treated synonymously.

    In the final regulation (April 3, 1974), one definition of 
Navigable waters appears and reads:

  (1) The term ``navigable waters of the United States'' and 
    ``navigable waters'' as used herein mean those waters of the United 
    States which are subject to the ebb and flow of the tide, and/or 
    are presently, or have been in the past, or may be in the future 
    susceptible for use for purposes of interstate or foreign commerce 
    [See 33 CFR 209.260 for a more complete definition of these terms].

    In support of and as a means of further clarification, the COE 
simultaneously (April 3, 1974) released a Legal Review of Corps 
Regulatory Permit Laws which originated in the Office of Counsel at COE 
Headquarters.
    In the majority opinion for the Supreme Court ruling in SWANCC, 
Chief Justice Rehnquist wrote:

  (a) In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 
    this Court held that the Corps had Sec. 404(a) jurisdiction over 
    wetlands adjacent to a navigable waterway, noting that the term 
    ``navigable'' is of ``limited import'' and that Congress evidenced 
    its intent to ``regulate at least some waters that would not be 
    deemed ' navigable' under [that term's] classical understanding,'' 
    [Id., at 133]. But that holding was based in large measure upon 
    Congress' unequivocal acquiescence to, and approval of, the Corps' 
    regulations interpreting the CWA to cover wetlands adjacent to 
    navigable waters. [See Id., at 135 139]. The Court expressed no 
    opinion on the question of the Corps' authority to regulate 
    wetlands not adjacent to open water, and the statute's text will 
    not allow extension of the Corps' jurisdiction to such wetlands 
    here.
  (b) The Corps' original interpretation of the CWA in its 1974 
    regulations--which emphasized that a water body's capability of use 
    by the public for transportation or commerce determines whether it 
    is navigable--is inconsistent with that which it espouses here, yet 
    respondents present no persuasive evidence that the Corps mistook 
    Congress' intent in 1974.

    Chief Justice Rehnquist makes two important points. First, the COE 
conclusion (which was based at least in part on interpretations of the 
Commerce Clause) that Section 404 of the CWA and Section 10 of the RHA 
have identical limits of jurisdiction (with the exception that 404 
extends to adjacent wetlands), was and is the correct interpretation. 
Second, that the language of the CWA will not allow the COE to assert 
jurisdiction over wetlands that are not adjacent to open water. In 
using the term ``open water'', I assume that the Chief Justice was 
referring to ``open navigable water'' as is used in the previous 
sentence of the opinion and in other Supreme Court rulings.
    In conclusion, it is my view that the public cannot rely upon any 
one branch of government to rectify the inconsistencies and erroneous 
interpretations of law and regulation that currently plague the Section 
404 Program. It must seek remedies from all three branches. Thus, 
Congress should state clearly and concisely in the law, the maximum 
extent of jurisdiction through amendment of the CWA and rulemaking is 
essential to clarify whether ditches, ephemeral drains, waste ponds, 
ephemeral wet spots are navigable waters.



                               __________
          Statement of Dr. Scott Yaich, Ducks Unlimited, Inc.

    Mr. Chairman, members of the committee, my name is Dr. Scott Yaich. 
I am the Director of Conservation Programs at Ducks Unlimited, Inc.'s 
(DU) National Headquarters in Memphis, Tennessee. I am certified as a 
Professional Wetland Scientist and Certified Wildlife Biologist by the 
Society of Wetland Scientists and The Wildlife Society, the 
professional organizations of these respective scientific disciplines. 
I have worked for DU since 2001, and previously served as Wetlands 
Program Coordinator and Assistant Director for the Arkansas Game and 
Fish Commission for 13 years. My current duties include responsibility 
for overseeing DU's scientific review and response to issues related to 
the Clean Water Act.
    I appreciate the opportunity to speak with you today on behalf of 
Ducks Unlimited. Our organization was founded in 1937 by concerned and 
farsighted sportsmen and conservationists. Our mission is to conserve, 
restore, and manage wetlands and associated habitats for North 
America's waterfowl, and for the benefits these resources provide other 
wildlife and the people who enjoy and value them. DU has grown from a 
handful of people to an organization of over 1,000,000 supporters who 
now make up the largest wetlands and waterfowl conservation 
organization in the world. With our many private and public partners we 
have conserved almost 11 million acres of habitat for waterfowl and 
associated wildlife in the U.S., Canada, and Mexico. Importantly, Ducks 
Unlimited is a science-based conservation organization. Every aspect of 
our habitat conservation activity is rooted in the fundamental 
principles of scientific disciplines such as wetland ecology, waterfowl 
biology, and landscape ecology. Thus, our perspectives on the Clean 
Water Act and related issues are based on our extensive grounding in 
these scientific disciplines, and we believe that wetland and water 
quality science can help bring insights to these complex issues.

                       WETLAND STATUS AND TRENDS

    Of the estimated 221 million acres of wetlands originally present 
in the United States, 53 percent (115.5 million acres) had been lost by 
1997. (Citations in support of statements of fact in this testimony are 
included in the accompanying report [``The SWANCC Decision: 
Implications for Wetlands and Waterfowl,'' Ducks Unlimited, 2001] and/
or in DU's comments in response to the Environmental Protection 
Agency's Advance Notice of Proposed Rulemaking [ANPRM], Docket ID 
No.OW-2002-0050.) The Clean Water Act (CWA), initially passed in 1972, 
is believed by many to have been an important factor in slowing the 
rate of wetland loss from 458,000 acres/year during the 1950's-70's. 
However, wetland loss still exceeds 100,000 acres/year, even in the 
face of CWA protections and the implementation of important voluntary, 
incentive-based restoration programs such as those provided through the 
Farm Bill's conservation titles and the North American Wetlands 
Conservation Act.
    As a nongovernmental waterfowl habitat conservation organization, 
DU has a long, productive history in working with voluntary, incentive-
based wetland conservation programs, both public and private. Virtually 
all of our habitat accomplishments have been achieved through 
partnerships, a large percentage with private landowners. Nevertheless, 
despite the successes of DU and of many other organizations and 
programs, the country is still experiencing a net loss of wetlands each 
year. These losses not only have a cumulative negative impact on the 
waterfowl that our million members and supporters care so passionately 
about and contribute so much toward, but also on the nation's water 
quality and related Federal interests.
    The wetlands of the prairie pothole region are often considered the 
prototypical ``geographically isolated wetland.'' Of the approximately 
20 million potholes that once existed in the northern U.S., only about 
7 million remain. While most of these wetlands are small they are 
critically important, and this region is the most important breeding 
area for ducks in North America. An estimated 50 percent of the average 
total annual production of ducks comes from the potholes, and in wet 
years 70 percent or more of the continent's duck production can 
originate in this region. One analysis suggested that duck production 
in the pothole region of the U.S. northern prairies would decline by 
over 70 percent if all wetlands less than 1 acre were lost. However, 
wetland losses far less than this would significantly impact waterfowl 
numbers, and could result in closed waterfowl seasons with related 
impacts. Wetlands in other areas of the country are also vital for 
providing the breeding, migration and wintering habitat necessary to 
support continental waterfowl populations.
    Waterfowl are a tremendously valuable interstate and international 
economic resource. Almost 3 million duck and migratory bird hunters 
expended approximately $1.4 billion in 2001 for hunting related goods 
and services, with 14 percent of that hunting taking place in a State 
other than the one in which the participant resided. For example, in 
North Dakota, 47 percent of the State's waterfowl hunters in 2001 were 
non-residents, and in Arkansas over 42 percent of their 89,000 
waterfowl hunters in 2002 traveled there from other States. 
Furthermore, commerce tied to the waterfowl resource and other wetland-
associated fish and wildlife is not restricted to hunting. In 2001, 
14.4 million people participated in watching waterfowl, with associated 
expenditures and values also measured in the billions of dollars.

       FEDERAL JURISDICTION: WHY IS THE ISSUE SO IMPORTANT TO DU?

    The Clean Water Act (CWA) has been an important component of the 
national framework of wetland conservation for over 30 years. It has 
been one of the more successful environmental programs in the nation's 
history. Many aspects of the country's water quality have improved 
measurably since 1972, and wetland loss rates have declined. Much of 
the progress in cleaning up the nation's water supplies has come in 
association with establishment of Federal jurisdiction over waters and 
wetlands that directly affect the nation's water quality, including 
those occurring on private lands. However, due to the regulatory 
elements of the Act, the exertion of this authority has generated 
considerable regulatory and legal debate. Understanding of the 
relationships between wetland and water science, the purposes of the 
CWA, and the evolution of the Act's legislative and judicial history 
can help bring insights to some of the existing confusion and passions.
    DU is very concerned about the potential impacts of any change in 
the definition of ``waters of the United States'' that could have the 
effect of lessening jurisdictional coverage of important wetlands 
important to waterfowl under the CWA. Such changes could rapidly negate 
many of the conservation benefits that our volunteers and members have 
worked so hard for over the last 66 years.

               LEGISLATIVE AND JUDICIAL STATUS AND TRENDS

    As a result of actions by the agencies, decisions by the courts, 
and amendments to the CWA by Congress, there has been a steady 
evolution of what wetlands have fallen within CWA jurisdiction over the 
last 30 years. Then, in 2001, the Supreme Court's decision in the Solid 
Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 
(henceforth SWANCC) invalidated one facet of the so-called Migratory 
Bird Rule as a sole basis for determining jurisdictional wetlands. This 
had the effect of confusing the scope of Federal jurisdiction over 
which waters and wetlands are subject to Section 404 of the CWA. 
However, while retaining navigable waters, their tributaries, adjacent 
wetlands, and wetlands which cross State lines within the definition of 
``waters of the United States,'' their decision did not make clear the 
new jurisdictional limits. This resulted in regulatory uncertainty, 
which the agencies, the regulated community, including Ducks Unlimited, 
and other interested parties are still trying to understand.
    Nevertheless, in their SWANCC decision the Supreme Court explicitly 
acknowledged that ``Congress passed the CWA for the Stated purpose of 
``restor[ing] and maintain[ing] the chemical, physical, and biological 
integrity of the Nation's waters.'' Their decision also reaffirmed 
Federal jurisdiction over navigable waters, their tributaries, and 
adjacent wetlands. They further stated that ``we recognized that 
Congress intended the phrase 'navigable waters' to include 'at least 
some waters that would not be deemed navigable' under the classical 
understanding of that term.'' They also re-stated the observation in 
their United States v. Riverside Bayview Homes decision that 
``Congress's concern for the protection of water quality and aquatic 
ecosystems indicated its intent to regulate wetlands 'inseparably bound 
up with the 'waters of the United States.'''' The Court went on to 
clarify in their SWANCC decision that ``It was the significant nexus 
between the wetlands and 'navigable waters' that informed our reading 
of the CWA in Riverside Bayview Homes.''
    With these statements the Supreme Court seemed to clearly view the 
connection between wetlands and ``navigable waters'' as a critical 
determinant for exercising Federal CWA jurisdiction over wetlands. 
Ultimately, however, their decision called into question the status of 
waters and wetlands that are non-navigable, geographically isolated, or 
intrastate, i.e., those lacking an apparent significant nexus to 
navigable waters.

                CLARIFYING JURISDICTION: KEY DEFINITIONS

    To shed light on the question of waters and wetlands that are 
jurisdictional in view of SWANCC, focus should be placed on the 
definitions of ``tributary,'' ``adjacent,'' and ``significant nexus'' 
as they relate to the interrelationships between geographically 
isolated wetlands and navigable waters. The regulatory definition of 
``tributary'' seems to have achieved somewhat of a consensus in the 
courts over the last few decades. However, explicit clarification of 
this definition would be beneficial.
    The previously cited recent assertions of the Supreme Court carry 
an implicit, but clear recognition that water quality of navigable 
waters is directly related to water quality in ``adjacent'' wetlands. 
The Court thus recognized wetland function as being an essential 
element of proximity and determination of Federal jurisdiction, and 
accepted that adjacency carries with it the presumption of a functional 
relationship, i.e., a ``significant nexus,'' between the wetlands and 
navigable waters. Thus, ``adjacent'' is another key term requiring 
definition.
    In light of the acknowledged interrelationship of the Court's use 
of the terms ``adjacent'' and ``significant nexus,'' we suggest that 
clarity might be advanced in practice by replacement of these two terms 
with a single one, ``functionally adjacent.'' The central issue here 
would be the recognition that adjacency, from the standpoint of water 
quality maintenance, should not be viewed as being simply limited by 
physical proximity, but rather viewed in terms of functional 
relationships. Thus, functionally adjacent wetlands could be physically 
distant from a navigable water (just as a surface tributary deemed 
jurisdictional may be located many miles upstream of a navigable 
water), yet its direct functional linkage to (i.e., its significant 
nexus with) the navigable water for purposes of maintaining water 
quality as directed by the CWA would remain as the central element of a 
jurisdictional decision.

            WETLAND HYDROLOGIC FUNCTIONS AND RELATED VALUES

    Wetlands provide a broad array of ecosystem functions, all carrying 
some measure of societal value, but those most relevant to the CWA and 
Federal jurisdiction are the hydrologic and biogeochemical functions. 
Our appended complete comments on the ANPRM provide many literature 
citations and examples for the functions of ``surface water storage and 
flood abatement,'' ``groundwater relationships,'' and ``water quality 
maintenance'' performed by wetlands, thereby providing a significant 
nexus with navigable waters.
    Virtually all wetlands improve the quality of water that they 
receive and then discharge. Evidence of the societal value of those 
water quality services is demonstrated by the actions of New York City 
to initiate a $250 million program to acquire and protect up to 350,000 
acres of wetlands and riparian lands in the Catskills. The city is 
taking this action to protect the quality of its water supply as an 
alternative to constructing water treatment plants which could cost as 
much as $6-8 billion. In South Carolina, the wetland services provided 
by the Congaree Swamp negated the need for a $5 million wastewater 
treatment plant.
    All wetlands provide surface water storage and flood abatement 
functions, and the cumulative impacts of wetland loss have recently 
been seen in prominent examples of flooding on the Red, Missouri and 
Missisippi rivers. As another example, small pothole basins in the 
Devil's Lake watershed in North Dakota could store 72 percent of the 
total runoff from a 2-year frequency flood and approximately 41 percent 
of the total runoff from a 100-year frequency flood. To illustrate the 
recognition of the societal values associated with this flood abatement 
function, the city of Boston is acquiring 5,000 acres of wetlands in 
the Charles River watershed to avoid the necessity of constructing a 
$100 million dam for flood control. In a related study, the U.S. Army 
Corps of Engineers determined that flood damages would increase by $17 
million per year if the 8,400 acres of wetlands in the Charles River 
basin were drained. Thus, apparently geographically isolated wetlands 
are often in fact functionally adjacent to navigable waters that are 
clearly jurisdictional from the perspective of the CWA and other 
Federal interests, such as flood control.
    Finally, there are many examples of the direct functional linkages 
via groundwater connections between water in wetlands with that of 
navigable waters. Isolated and other wetlands very often contribute to 
groundwater recharge, and this groundwater then continues to move 
downslope toward intermittent or flowing streams ultimately terminating 
in navigable waters. For example, 20-30 percent of the water loss from 
prairie wetlands can be seepage to groundwater. Subsequent groundwater 
discharge into flowing streams over 16 miles away from these isolated 
wetlands has been documented. The sandhill wetlands of Nebraska have 
direct linkages to the High Plains (Ogallala) aquifer and rivers such 
as the Platte and Missouri through groundwater recharge from the 
surface and subsequent discharge to the rivers. Thus, the demonstrated 
linkages between geographically isolated wetlands, groundwater, and 
navigable waters supports the contention that adjacency and significant 
nexus for determining jurisdictional wetlands should be interpreted 
from a functional perspective if water quality is to be protected as 
intended by the CWA.

            IMPLICATIONS OF REDUCING JURISDICTIONAL WETLANDS

    There would be significant implications to the status of wetlands, 
and waterfowl and other associated resources, if Clean Water Act 
protections are removed from a broad spectrum of wetlands. If 
hydrologic links between wetlands and navigable waters are recognized 
when defining ``adjacency,'' ``tributary,'' and ``significant nexus,'' 
then the CWA might continue being a factor in stemming wetland loss. 
However, if these terms are not defined in a hydrologic context, the 
number of wetlands afforded Section 404 protection will unquestionably 
decrease and have a significant negative effect on waterfowl 
populations. For example, the appended DU 2001 report estimated that 96 
percent of the wetlands and 86 percent of the wetland acreage in the 
prairie pothole region might no longer be considered jurisdictional 
under the CWA. Even a very small increase in the annual rate of wetland 
loss could elevate loss rates to the high levels of the 1950's to 
1970's, approximately 450,000 acres/year, and move the Nation even 
farther away from achieving President Bush's goal of no-net-wetland 
loss.

                               CONCLUSION

    Rule-making decisions hinging on the definitions of ``isolated 
wetland,'' ``adjacent'' and ``significant nexus'' have the potential to 
reverse 3 decades of progress in slowing the rate of net wetland loss 
and degradation. While DU strongly supports the use and expansion of an 
incentive-based approach to wetlands conservation, State, Federal and 
non-governmental conservation programs are unlikely to be funded at 
levels sufficient to offset these losses. Ducks Unlimited agrees with 
much of the rest of the regulated community that, in light of the 
uncertainty and confusion introduced by the SWANCC decision, 
clarification of jurisdictional wetlands and waters is important and 
overdue. However, we believe that this clarification can be 
expeditiously provided through administrative guidance processes of the 
agencies. We believe that administrative definition of the terms 
important to determining ``waters of the U.S.'' should be strongly 
based on the related wetland and water quality science to address the 
existing scope of the Clean Water Act. This would at least restore the 
level of certainty and stability in the regulatory process and the 
level of wetlands protection that existed prior to SWANCC. In any case, 
changes to the administration of the Act, proposal of a rule, or 
amendments to the Act should only be undertaken if they strengthen 
protection of the Nation's wetlands.
    Thank you for this opportunity to present our views on this issue, 
one that is central to the mission of our organization and the 
commitment of our million members, volunteers and supporters. Please do 
not hesitate to call upon us for any reason regarding these important 
issues. I would be happy to try to answer any questions you might have.

                                 ______
                                 
   Responses of Scott C. Yaich to Additional Questions from Senator 
                                Jeffords

    Question 1. What is the mission of Ducks Unlimited?
    Response. Our organization's mission statement is: ``Ducks 
Unlimited conserves, restores, and manages wetlands and associated 
habitats for North America's waterfowl. These habitats also benefit 
other wildlife and people.''

    Question 2. You indicated in your testimony that duck and migratory 
bird hunters spent $1.4 billion for hunting-related goods and services. 
Can you break that number down by State or region? Can you break that 
number down by sector?
    Response. Please see Table 21, page 76 in the attached file, 
``USFWS 2001 Hunting Survey,'' for a complete break down of the $1.4 
billion migratory bird-related expenditures by sector (i.e., category 
of expenditure). This report, ``2001 National Survey of Fishing, 
Hunting, and Wildlife-Associated Recreation,'' is produced by the U.S. 
Fish and Wildlife Service and is available at: www.census.gov/prod/
2003pubs/fhw01-us.pdf . Expenditures by type of hunting (e.g., 
migratory bird, big game, etc.) are not broken down by State in this 
report. However, to address your request we have used the report's 
estimate of the number of migratory bird hunters for each State (Table 
56, page 104) to calculate an estimate of expenditures by State (see 
appended Table 1) based on the $1.4 billion national total. Although 
these State-specific estimates are imprecise because of small 
statistical sample sizes and assumptions such as equivalent 
expenditures for migratory bird hunters among States, they nevertheless 
provide useful perspective of the economic importance of migratory bird 
hunting in each State.

    Question 3. Are wetlands that aren't connected to other waterbodies 
any less important for wildlife than connected wetlands?
    Response. I will assume that by ``wetlands that aren't connected to 
other waterbodies'' you have the phrase ``geographically isolated 
wetlands'' in mind and are referring to the distinction between 
wetlands connected by surface waters to flowing waters versus those 
lacking such a surface water connection. From that perspective, 
wetlands lacking a surface connection to clearly jurisdictional waters 
are no less important for wildlife than wetlands with such a linkage. 
All of the many diverse types of wetlands found across the Nation, 
e.g., large versus small, connected versus unconnected, permanent 
versus seasonal, are all important in their own way for fish and 
wildlife. Wetlands with a surface linkage to flowing waters can be 
essential spawning habitat for many species of fish. For instance, some 
recreationally important species such as crappie are dependent upon 
seasonally flooded wetlands that may be dry for most of the year. On 
the other hand, geographically isolated wetlands can be critically 
important habitat for other wildlife such as waterfowl. For example, 
the prairie potholes of the northern great plains are largely 
considered geographically isolated but they constitute the wetland 
foundation for the most important breeding area on the continent for 
the most economically important species of ducks. An estimated 50 
percent of the average total annual production of ducks comes from the 
pothole region, and in wet years 70 percent or more of the continent's 
duck production can originate in this region. The lack of a surface 
water connection to these wetlands and their often less than permanent 
inundation helps prevent fish from surviving in these wetlands. In this 
case, the absence of fish leads to a high productivity of invertebrates 
which are a critical source of food for waterfowl on the breeding 
grounds. Wetlands with even small fish in them are far less valuable 
for waterfowl in production areas than are wetlands with a surface 
water connection.
    Wetlands lacking a surface water connection to jurisdictional 
waters are also often smaller than those with such connections. Small 
wetlands are not only at a disproportionately higher risk of being 
lost, but they also tend to provide different functions than large 
wetlands. They are typically shallower than large wetlands, warm more 
quickly, have a larger ratio of vegetated area to surface acreage, dry 
more frequently, and possess a greater perimeter:size ratio. These 
characteristics are typically associated with functional attributes 
such as increased productivity of vegetation and invertebrates, and 
contributions to groundwater. For example, one analysis by the U.S. 
Fish and Wildlife Service suggested that waterfowl production in the 
pothole region of the U.S. northern prairies would decline by over 70 
percent if all wetlands less than 1 acre were lost.
    While we have only included a few examples here, all types of 
wetlands are important to wildlife and fish, each in their own ways. 
Geographically isolated wetlands are no less important than 
geographically connected wetlands, and in many cases are more important 
to many species of wildlife, some which are tremendously important and 
economically valuable. However, as discussed below in our response to 
question 4, recognition that most of our nation's wetlands are indeed 
connected to jurisdictional waters, even though the connections may not 
be via surface water, is an even more important issue.

    Question 4. Please elaborate on the concept of ``functional 
adjacency'' referred to in your testimony.
    Response. One of Ducks Unlimited's primary objectives with our 27-
page response to the January 2003 Advance Notice of Proposed Rulemaking 
was to help promote an understanding that while many wetlands may have 
the appearance of being ``geographically isolated,'' the overwhelming 
majority of all wetlands in the U.S. are in fact not hydrologically or 
functionally isolated. Thus, there exists a hydrologic linkage that, 
consistent with the stated purpose and intent of the Clean Water Act 
(CWA) and important subsequent case law, constitutes a ``significant 
nexus'' between these wetlands and other jurisdictional waters. In 
other words, most so-called ``isolated'' wetlands are, in fact, 
functionally adjacent to navigable waters. Because of the functional 
linkages between wetlands and other waters, wetland science and 
classification does not and cannot separate out so-called ``isolated'' 
wetlands. Thus, in all but some very narrow instances of wetland types, 
the phrase ``isolated wetland'' is a legal or regulatory construct 
lacking a scientific basis.
    There is a sound basis in the CWA and related judicial decisions 
for interpreting wetland connections to traditionally navigable waters 
from the science-based functional perspective. Citing the Supreme 
Court's earlier decision in United States v. Riverside Bayview Homes 
(474 U.S. 121, 1985) in their SWANCC decision, the majority stated that 
``we recognized that Congress intended the phrase 'navigable waters' to 
include 'at least some waters that would not be deemed navigable' under 
the classical understanding of that term'' (Id., at 133). They also re-
stated their Riverside Bayview observation that ``Congress's concern 
for the protection of water quality and aquatic ecosystems indicated 
its intent to regulate wetlands 'inseparably bound up with the 'waters 
of the United States'''' (Id., at 134). They go on to clarify in their 
SWANCC decision that ``It was the significant nexus between the 
wetlands and 'navigable waters' that informed our reading of the CWA in 
Riverside Bayview Homes'' (U.S. Case No. 99-1178, para. 12).
    With these statements the Supreme Court clearly viewed the 
connection between wetlands and ``navigable waters'' as a critical 
determinant for exercising Federal CWA jurisdiction over wetlands. 
Ultimately, however, their decision resulted in questions regarding the 
status of waters and wetlands that are non-navigable, geographically 
isolated, or intrastate, i.e., those lacking an apparent significant 
nexus to navigable waters. Therefore, to address the issue of waters 
and wetlands that are jurisdictional in view of SWANCC, the focus has 
been placed on the definitions of ``tributary,'' ``adjacent,'' and 
``significant nexus'' as they relate to the interrelationships between 
geographically isolated wetlands and navigable waters.
    Past court interpretations, at all levels, of what constitutes a 
tributary seem to overwhelmingly support a broad definition. Because of 
the obvious ability of any pollutant or fill material to flow downhill 
through a tributary watercourse, even intermittently, and ultimately 
degrade water quality of a downstream navigable water, the courts have 
consistently recognized the functional connections of tributary water 
to navigable waters. This has generally been the case for even altered 
or artificial connections such as channelized streams and drainage 
ditches. The surface water relationships between tributaries and 
navigable waters are apparent and easily observed, and the effect of 
this perspective has been to responsibly provide CWA protections to 
waters with clear surface connections to navigable waters.
    In SWANCC, the Supreme Court's view of wetlands with respect to the 
issue of jurisdiction seemed to search for a similarly obvious physical 
connection to navigable waters. Their discussion placed an emphasis on 
isolation and adjacency, terms usually used within the context of 
physical proximity. Although the seeming importance of proximity may 
appear intuitive if one looks only at surface water connections between 
wetlands and navigable waters, this limited perspective fails to 
recognize the functional relationships that generally exist between 
these waters, even in the absence of surface connections. Nevertheless, 
these functional linkages have a direct impact on Federal interests 
such as water quality, flood storage and damage abatement, and 
navigation, and thus a direct bearing on the issue of jurisdiction. 
Therefore, the regulatory definitions of adjacency and significant 
nexus are critical to resolving the limits of Federal jurisdiction in 
addressing Congress' intent with the CWA ``to restore and maintain the 
. . . integrity'' of the Nation's waters. We believe that these 
regulatory definitions should be accurate and science-based, and 
functional adjacency more accurately represents the genuine, physical 
connections between wetlands and other jurisdictional waters than does 
mere geographic adjacency and connection via surface flow.
    Riverside Bayview and other Section 404-related cases in which 
adjacency was central to evaluating jurisdiction have tended to 
interpret the term from within a strictly geographic context. However, 
the Supreme Court's ruling in Riverside Bayview was at the same time 
based on an implied connection between wetlands and the navigable 
waters to which they were adjacent but not necessarily connected via 
surface waters. The Court's previously cited and other assertions 
carried an implicit but clear recognition that water quality of 
navigable waters is directly related to water quality in wetlands 
located in close physical proximity even if not directly connected. The 
Supreme Court thereby implicitly acknowledged wetland function as being 
an essential element of proximity and determination of Federal 
jurisdiction. In SWANCC, the Court re-stated that ``It was the 
significant nexus between the wetlands and 'navigable waters' that 
informed our reading of the CWA in Riverside Bayview Homes'' (U.S. Case 
No. 99-1178, para. 12). Therefore, the Court accepted that adjacency 
carries with it the presumption of a functional relationship, i.e., the 
significant nexus, between the wetlands and navigable waters.
    A functional foundation for jurisdictional decisions related to 
wetlands, whether geographically isolated or not, would help advance 
the discussion beyond having to attempt to base jurisdictional 
decisions on what could otherwise be an arbitrary delineation of what 
constitutes adjacency. In addition, this approach is lent support by 
the recent report on ``Compensating for Wetland Losses Under the Clean 
Water Act'' (National Research Council 2001). Recognizing the 
advancements in wetland science over the last 30 years, that report 
places some emphasis on the use of wetland functional assessment to 
provide an avenue for improving wetland mitigation within the CWA. In 
addition, the U.S. Army Corps of Engineers' December 24, 2002 
Regulatory Guidance Letter No. 02-2 (p.3) on``. . . Compensatory 
Mitigation Projects . . . Pursuant to Section 404 of the Clean Water 
Act . . . ,'' positively acknowledged the recommendations of the 
National Research Council's report and placed a special emphasis on 
``one-to-one functional replacement'' of wetlands.
    Therefore, in light of the acknowledged interrelationship and 
existing judicial precedence involving these terms (i.e., ``adjacent'' 
and ``significant nexus''), we suggest that conceptual clarity and a 
scientific basis for Federal jurisdiction would be advanced by 
replacement of these two terms with a single one, ``functional 
adjacency.'' The central issue here would be the recognition that 
adjacency, from the standpoint of water quality maintenance as the 
primary purpose of the CWA, cannot be viewed as being simply limited by 
physical proximity, but rather must be viewed in terms of functional 
linkages. Thus, functionally adjacent wetlands might be physically 
distant from a navigable water (just as a surface tributary deemed 
jurisdictional may be located miles upstream of a navigable water), yet 
its direct functional linkage to (i.e., its significant nexus with) the 
navigable water for purposes of maintaining water quality as directed 
by the CWA would remain as the central element of a jurisdictional 
decision.

    Question 5. Ducks Unlimited does extensive wetlands restoration 
work. In your comments regarding the ANPRM you make clear that the 
benefits of your work and that of programs like the Wetlands Reserve 
Program, and the U.S. Fish and Wildlife Service's Partners for Fish and 
Wildlife Program aren't sufficient to ensure habitat for ducks.
    Response. The statement above is an accurate reflection of a 
portion of our comments. If there is a question related to this point, 
or an issue upon which you would like us to elaborate, we stand 
prepared to provide that at any time.

    Question 6. How important is duck hunting and other wildlife-
related recreation to the economy?
    Response. The report, ``2001 National Survey of Fishing, Hunting, 
and Wildlife-Associated Recreation,'' referenced in our response to 
Question 1 and attached as an electronic file, contains a wealth of 
information related to the importance of duck hunting and other 
wildlife-related recreation to the U.S. economy. Over 82 million U.S. 
residents 16 years old and older participated in wildlife-related 
recreation in 2001. Their expenditures totaled $108 billion. The 
nation's 37.8 million hunters and anglers expended $70.0 billion in 
2001, including $35.6 billion on fishing, $20.6 billion on hunting, and 
$13.8 billion on items used for both. In addition, other economic 
studies have indicated that total economic impacts are three or more 
times larger than direct expenditures. For example, a similar survey in 
1991 estimated that with their expenditures of $1.3 billion, waterfowl 
hunters had a total economic multiplier effect of $3.9 billion 
considering the 46,000 additional jobs and $176 million in sales and 
income tax revenues produced. In 2001, the 3.0 million migratory bird 
hunters devoted 29 million days on 24 million trips for hunting these 
birds, with much of this activity being dependent upon wetland 
habitats. The 2001 survey found that 14 percent of this migratory bird 
hunting activity was interstate in nature, with this commerce being 
particularly significant in particular regions. For example, in North 
Dakota, with its large number of prairie pothole wetlands and 
associated waterfowl resources, 47 percent of the State's approximately 
64,000 waterfowl hunters in 2001 were non-residents. In Arkansas, there 
were approximately 89,000 waterfowl hunters in 2002 and over 42 percent 
traveled there from other States. Almost all of the waterfowl harvested 
in mid-and southern latitude States such as Arkansas migrate there from 
northern production areas that contain abundant wetlands, most of which 
would be considered ``geographically isolated.''
    In addition to the economics associated with hunting and fishing, 
the 2001 survey estimated that there were 66.1 million wildlife 
watchers in the U.S. who spent $38.4 billion annually. This activity 
was most common among citizens over 35 years old, peaking with 39 
percent of 55-64 year-olds participating in wildlife-observation at 
their residences. A relatively high percentage of the U.S. population 
with 4 years of college (34 percent) or more (41 percent) actively 
participated in this form of residential wildlife-related recreation. 
Nearly all wildlife observers (e.g., 96 percent of residential 
observers) watch birds. The majority of wildlife watching done away 
from the home by almost 22 million people was in association with 
wetlands and other water bodies. Furthermore, waterfowl were observed 
or photographed more than any other group of wildlife by those who took 
trips away from their home to watch wildlife.
    The statistics cited here highlight only a few of the results 
reported in the complete U.S. Fish and Wildlife Service's ``2001 
National Survey of Fishing, Hunting, and Wildlife-Associated 
Recreation.'' The report contains many other data which underscore the 
importance of hunting and wildlife-related recreation to the U.S. 
economy, highlight the breadth and magnitude of the U.S. population 
involved in this personal activity, and documents the dependence of a 
high percentage of this activity on the nation's wetland and water 
resources.

            Estimated expenditures on migratory bird hunting
------------------------------------------------------------------------
                   State                       Estimated expenditures
------------------------------------------------------------------------
Alabama...................................                   $41,184,888
Alaska....................................                   *$6,069,352
Arizona...................................                   $26,878,558
Arkansas..................................                   $74,132,798
California................................                  *$49,855,390
Colorado..................................                  *$23,843,882
Connecticut...............................                           \1\
Delaware..................................                   *$3,468,201
Florida...................................                   *27,745,608
Georgia...................................                  *$37,283,161
Hawaii....................................                           \1\
Idaho.....................................                  *$16,473,955
Illinois..................................                   *26,011,508
Indiana...................................                   *13,005,754
Iowa......................................                  *$24,277,407
Kansas....................................                   $34,248,485
Kentucky..................................                  *$24,710,933
Louisiana.................................                   $63,728,195
Maine.....................................                           \1\
Maryland..................................                  *$20,375,681
Massachusetts.............................                   *$8,236,978
Michigan..................................                  *$23,843,882
Minnesota.................................                   $79,768,624
Mississippi...............................                   $33,814,960
Missouri..................................                  *$29,913,234
Montana...................................                   *$9,971,078
Nebraska..................................                   $20,809,206
Nevada....................................                   $12,572,229
New Hampshire.............................                   *$2,601,151
New Jersey................................                           \1\
New Mexico................................                  *$14,739,855
New York..................................                  *$43,786,038
North Carolina............................                   $44,219,564
North Dakota..............................                   $26,445,033
Ohio......................................                  *$30,346,759
Oklahoma..................................                   $35,115,536
Oregon....................................                  *$18,208,056
Pennsylvania..............................                  *$36,849,636
Rhode Island..............................                           \1\
South Carolina............................                   $30,780,284
South Dakota..............................                   $22,109,782
Tennessee.................................                   $43,352,513
Texas.....................................                  $216,762,566
Utah......................................                   $22,543,307
Vermont...................................                           \1\
Virginia..................................                  *$19,075,106
Washington................................                  *$21,676,257
West Virginia.............................                           \1\
Wisconsin.................................                  *$23,843,882
Wyoming...................................                   *$3,901,726
------------------------------------------------------------------------
* Estimate based on small sample size.
\1\Sample size too small to report data reliably

                               __________
            Statement of the American Farm Bureau Federation

    The American Farm Bureau Federation wishes to submit the following 
statement for the hearing record.
    The American Farm Bureau Federation's farmer and rancher members 
produce virtually every agricultural commodity grown or raised 
commercially in the United States. They own or lease significant 
amounts of land on which they depend for their livelihoods and upon 
which all Americans rely for food and other basic necessities. In 
recent years farmers and ranchers have become increasingly subjected to 
restrictive laws and regulations that impair their ability to farm 
efficiently, and, in some instances, have eliminated their ability to 
farm altogether. The protection of wetlands under Section 404 of the 
Clean Water Act (CWA) poses one of the more onerous regulatory problems 
production agriculture faces today.
    While American farmers and ranchers have the highest production 
rates in the world, multiple layers of restrictive regulations at the 
local, State and national levels have impaired their ability to farm 
and ranch efficiently in an increasingly competitive global market. The 
type of land-use restriction placed on farmers and ranchers by such an 
expansive regulatory interpretation of the CWA is far beyond what 
Congress intended, at best creating uncertainties about permissible 
conduct and at worst exposing farmers and ranchers pursuing routine 
farming activities to substantial penalties.
    Section 404 of the CWA, 33 U.S.C. ' 1344, regulates ``the discharge 
of dredged or fill material into the navigable waters at specified 
disposal sites.'' From its inception in 1972, the Section 404 permit 
program has been a very controversial, complex and contentious program. 
Its application and misapplication to farms and farming have played a 
key role in its evolution.
    While Congress has rejected Federal land-use controls, the Section 
404 wetlands program has, unfortunately proven an effective mechanism 
to control portions of the nation's farming and ranching landscape. 
Federal agencies, especially the Environmental Protection Agency, the 
Army Corps of Engineers (Corps) and the Fish and Wildlife Service have 
expanded the reach of the Section 404 wetlands program far beyond 
``navigable waters'' and wetlands immediately adjacent to ``navigable 
waters.'' Section 404 has become ``a symbol to many Americans of how a 
well-intentioned legislative initiative can turn into a quagmire of 
disruption, frustration, and bureaucratic entanglement for ranchers, 
farmers, foresters, and average citizens of this country.''\1\
---------------------------------------------------------------------------
     \1\A Legislative History of the Clean Water Act of 1977: A 
Continuation of the Legislative History of the Water Pollution Control 
Act (``Legislative History'') 902 (1978) (statement of Sen. Bentsen, 
(D-TX))
---------------------------------------------------------------------------
    The Clean Water Act authorizes the U.S. Army Corps of Engineers to 
exercise limited jurisdiction over navigable waters. Farm Bureau does 
not question the power of Federal agencies to regulate the discharge of 
a pollutant into ``navigable'' interstate waterways or adjacent 
wetlands. Proximity to ``navigable'' waters is very important and 
clearly helps define the outer limits of Federal CWA authority. In 
Solid Waste Agency of Northern Cook County v. United States Army Corps 
of Engineers ET AL. 531 U.S. 159 (2001) (SWANCC), the Court limited 
Federal jurisdiction to ``navigable waters'' and to wetlands 
immediately adjacent to ``navigable waters.''
    The majority and minority opinions both held that mere hydrological 
connection is not enough to claim Federal jurisdiction and emphasized 
that there must be a clear and compelling connection between 
traditional navigability and the wetlands or waters to be regulated by 
Federal agencies. The SWANCC decision emphasized that ``navigable 
waters'' define the limits of the Clean Water Act jurisdiction and that 
. . .

  ``The term 'navigable' has at least the import of showing us what 
    Congress had in mind as its authority for enacting the CWA: its 
    traditional jurisdiction over waters that were or had been 
    navigable in fact or which could reasonably be so made.''

    The Court also stated that the Corps' . . .

  ``interpretation of the CWA, promulgated 2 years after its enactment, 
    is inconsistent with that which it espouses here. Its 1974 
    regulations defined Section 404(a)s 'navigable waters' to mean 
    ``those waters of the United States which are subject to the ebb 
    and flow of the tide, and/or are presently, or have been in the 
    past, or may be in the future susceptible for the use for purposes 
    of interstate or foreign commerce.'' 33 CFR Section 209.120(d)(1). 
    The Corps emphasized that it is the water body's capability of use 
    by the public for purposes of transportation or commerce which is 
    the determinative factor.'' Section 209.260(e)(1).

    Importantly, while the Supreme Court decided SWANCC on statutory 
grounds, it stated that the government's expansive interpretation of 
its jurisdiction under the CWA in the ``migratory bird rule'' raised 
``serious constitutional questions.'' First, there is a ``significant 
constitutional question'' whether birds supply a sufficient connection 
to commerce to bring all land and water used by birds within the 
Federal Government's ``commerce power.'' Second, asserting such broad 
Federal authority ``would result in a significant infringement of the 
States' traditional and primary power over land and water use''--power 
reserved to the States by the U.S. Constitution's Tenth Amendment.
    The U.S. Supreme Court in the SWANCC case clearly rejected the 
Corps of Engineers' claim of Clean Water Act jurisdiction over non-
navigable, isolated, intrastate waters under the Migratory Bird Rule. 
Of critical importance to the Court's conclusion was the plain text of 
the CWA, which grants jurisdiction over only ``navigable waters.'' The 
Court found that ``[t]he term 'navigable' has at least the import of 
showing us what Congress had in mind as its authority for enacting the 
Clean Water Act: its traditional jurisdiction over waters that were or 
had been navigable in fact or which could reasonably be so made.'' 
SWANCC, 531 U.S. at 172. Because the Migratory Bird Rule was based on 
Congress' broader power to regulate activities substantially affecting 
interstate commerce--not on Congress' ``commerce power over 
navigation''--the Migratory Bird Rule exceeded the scope of the CWA. As 
the Court observed, ``this is a far cry, indeed from the 'navigable 
waters' and 'waters of the United States' to which the statute by its 
terms extends.''
    SWANCC clearly eliminates CWA jurisdiction over isolated waters 
that are intrastate and non-navigable, where the sole basis for 
asserting CWA jurisdiction is the actual or potential use of the waters 
as habitat for migratory birds. Similarly, jurisdiction cannot be based 
on other affecting commerce clause rationales in the Corps' existing 
regulations at 328.3(a)(3)(i)-(iii) (use of the water by interstate or 
foreign travelers for recreational or other purposes; the presence of 
fish or shellfish that could be taken and sold in interstate commerce; 
use of the water for industrial purposes by industries in interstate 
commerce.) These factors, like the Migratory Bird Rule, are founded on 
an ``affecting interstate commerce'' theory of jurisdiction, not on 
Congress' commerce power over navigation. Therefore, these other 
factors are impermissible in light of SWANCC and cannot be used as a 
basis for jurisdiction.
    Prior to the SWANCC decision, the Migratory Bird Rule had allowed 
the Corps and EPA to essentially assert jurisdiction over any water, 
anywhere under the ``affecting commerce'' theory of jurisdiction. Under 
such a theory, field regulators did not have to determine whether 
something was a ``tributary,'' whether something was ``adjacent,'' or 
whether something qualified as an ``impoundment.'' Now that the 
Migratory Bird Rule is gone, however, the meaning of these other 
regulatory terms is critical. In fact, the Corps' existing nationwide 
permit regulations already define the term ``isolated waters'' as 
something that is not a tributary and not adjacent, thus calling into 
question the meaning of these other terms. See 33 C.F.R. ' 330.2(e).
    The Army Corps of Engineers and the Environmental Protection Agency 
must conduct a rulemaking not only to define the term ``isolated'' but 
more importantly to establish clear definitions of the specific terms 
on which the agencies are relying to establish jurisdiction: 
``tributary,'' ``adjacent,'' ``impoundment,'' and ``ordinary high water 
mark.'' All these terms are either vague or undefined under the 
existing regulations. In the absence of a rulemaking to define these 
terms, field regulators have unbridled discretion to make up meaning 
(and thereby jurisdiction) on an ad-hoc, arbitrary, and inconsistent 
basis.
    Fundamental principles of due process and good government require 
the regulatory agencies to clearly and uniformly set forth the scope of 
Federal jurisdiction. The regulated public must be given fair notice as 
to what conduct is prohibited under the CWA. Vague and ambiguous 
regulatory requirements lead to lengthy, costly and often unnecessary 
permitting requirements for critical public infrastructure and private 
projects.
    AFBF believes the SWANCC decision clearly limited the scope of 
Federal CWA jurisdiction to ``navigable waters'' and wetlands and other 
waters that abut ``those waters of the United States which are subject 
to the ebb and flow of the tide, and/or are presently, or have been in 
the past, or may be in the future susceptible for use for purposes of 
interstate or foreign commerce.'' 33 CFR Section 209.120(d)(1). In 
1974, the Corps' intent was to ``emphasize that it is the water body's 
capability of use by the public for purposes of transportation or 
commerce which is the determinative factor.'' Section 209.260(e)(1). We 
encourage the agencies to reaffirm this position. The fact that this 
intent was so clearly stated so soon after enactment of the CWA 
reflects most accurately the intent of Congress when it enacted the 
CWA.
    We look forward to working with you on this important issue.

                               __________
   Statement of P. Scott Hassett, Secretary, Wisconsin Department of 
                           Natural Resources

    Thank you for the opportunity to present the following comments on 
the need to protect the nation's so-called ``isolated'' wetlands and 
their benefits for people and wildlife across America.
    Wisconsin has a well-founded reputation and tradition of 
environmental protection and has strongly supported the Clean Water 
Act. We believe that the Clean Water Act and its section 404 program 
complements our State program and provides comprehensive protection of 
Wisconsin's valuable water resources.
    When the Supreme Court restricted protection of isolated waters in 
its 2001 decision, Solid Waste Agency of Northern Cook County v. U. S. 
Army Corps of Engineers, Wisconsin found itself without the authority 
to regulate ``isolated'' wetlands. We were not alone--along with 35 
other States we did not have stand-alone wetland regulations that would 
automatically fill the gap in the loss of Federal jurisdiction. Rather, 
our wetland program piggybacked on Federal jurisdiction and wetland 
protection depended on the Corps' regulatory jurisdiction under the 
Clean Water Act.
    Nearly 30 percent of Wisconsin's wetlands (over 1 million acres) 
are ``isolated'' and suddenly lost regulatory protection. Wetlands 
determined to be no longer protected by the Federal Government included 
some of the State's most sensitive wetlands-prairie potholes, glacial 
kettles, coastal swales, bogs, calcareous fens and other basin 
wetlands. These are wetlands that the public often don't recognize as 
wetlands, yet they provide crucial functions, especially as critical 
habitat for Wisconsin plants, fish and wildlife. Of Wisconsin's 370 
species of birds, 39 percent live in or use wetlands. Many important 
game birds, mammals and fish are associated with wetlands, among them 
waterfowl, white-tailed deer, ring-necked pheasants, northern pike and 
walleye. Fully one-third of the plants and animals on Wisconsin's State 
endangered and threatened list depend on wetlands. The proportion is 
even higher (43 percent) for plant and animal species in Wisconsin that 
are on the Federal endangered and threatened species list. Wisconsin 
wetlands protect water quality by filtering out polluted runoff, 
prevent flooding by storing water and provide recreation for boaters, 
hunters, canoeists, wildlife watchers and others. In addition, 
Wisconsin wetlands are intimately associated with other major community 
types in the State--lakes, rivers, prairies, forests--and they play a 
critical role in maintaining the overall health and functioning of 
these communities. Similar impacts have reported by most States and in 
numerous reports and studies since the SWANCC decision.
    Legislative response was swift in Wisconsin. Then Governor Scott 
McCallum issued a strong statement that the Supreme Court ruling, 
``will not result in a retreat from our long-standing commitment to 
protect Wisconsin wetlands''. Almost 4 months to the day after the 
Supreme Court decision, the Wisconsin legislature unanimously passed 
legislation giving the Department of Natural Resources the authority to 
protect isolated waters.
    While Wisconsin has taken action to protect its own wetlands, we 
remain concerned about the fate of isolated wetlands in other States A 
large percentage of Wisconsin's wildlife migrates and spends some 
portion of their life in other States and countries. If the wetlands 
are lost along migration routes on wintering or summering grounds, 
Wisconsin will suffer enormously. The recent reintroduction of whooping 
cranes to Wisconsin is a prime example--not only do the birds winter 
and summer in isolated wetlands, they use isolated exclusively as 
stopovers in their migration to and from their wintering grounds.
    Wisconsin believes that the nation's isolated wetlands are 
extremely critical to the nation's environmental health and must be 
protected. While State protection of wetlands is very important, 
national action is needed to restore protection to the nation's 
``isolated'' waters. The move from Federal to State control over 
isolated wetlands has proven to extremely difficult for most States 
(only two other States have successfully passed legislation or rules). 
Inaction (or reliance on State action) will guarantee irreversible loss 
of precious water resources and the benefits they provide to this 
Nation.
    This concern is shared by other States. Over 60 State agencies from 
40 States responded to the recent Advance Notice of Proposed Rulemaking 
on the Definition of Waters of the U.S. By an overwhelming majority 
States supported maintaining the pre-SWANCC definition of Waters of the 
U.S. and opposed rulemaking that would make significant changes. Many 
of the States documented significant threats to isolated as well as 
other waters in the State that could result from changes in CWA 
jurisdiction. States support stronger State participation in protecting 
and managing the Nation's waters, but these need to be achieved by 
sharing responsibilities and strengthening partnerships, not through an 
abdication of Federal responsibility for these important resources.
    In summary, Wisconsin strongly believes that national legislation 
is needed to return protection to the nation's so-called ``isolated'' 
wetlands and the benefits they supply to this Nation. We urge you to 
support and take quick action on the Clean Water Authority Restoration 
Act introduced by Senator Feingold and Representatives Oberstar and 
Dingell.
                               __________


                               
                               
      Statement of Rollin Sparrowe, Wildlife Management Institute

    The Wildlife Management Institute (WMI) is pleased to submit 
written testimony for the hearing entitled, ``Current regulatory and 
legal status of Federal jurisdiction of navigable waters under the 
Clean Water Act.'' Founded in 1911, WMI is a non-profit scientific and 
educational organization staffed by experienced resource management 
professionals who are dedicated to improving the management of wildlife 
and wildlife habitats. The Institute has a long history of working to 
conserve our Nation's wetlands through oversight and support of State 
and Federal wetlands programs, particularly section 404 of the Clean 
Water Act (CWA) and Swampbuster provisions in the Federal Agricultural 
Policy Legislation (Farm Bill).
    For your review are the comments we sent to the Environmental 
Protection Agency (EPA) and the U.S. Army Corps of Engineers (COE) in 
response to the January 15, 2003, ``Advance Notice of Proposed 
Rulemaking on the Clean Water Act Regulatory Definition of 'Waters of 
the United States''' (ANPR). In summary, WMI asserts that under CWA:
      Jurisdictional determinations should focus on the 
hydrological or functional relationships among wetlands and other 
waters of the U.S.;
      The Supreme Court's ruling on the Solid Waste Agency of 
Northern Cook County v. United States Army Corps of Engineers et al. 
case does not restrict EPA or COE from considering the Migratory Bird 
Rule when making jurisdictional determinations; and
      EPA and COE must assess the ``aggregate effect'' of 
discharges of dredged or fill material on interstate commerce, opposed 
to looking at only the effect of regulating a particular wetland fill.
    2. Whether, and, if so, under what circumstances, the factors 
listed in 33 CFR 328.3(a)(3)(i)-(iii) or any other factors provide a 
basis for determining CWA jurisdiction over isolated, intrastate, non-
navigable waters?
    Our understanding of the factors listed in 33 CFR 328.3(a)(3)(i)-
(iii) is that they already do not exclude any other factors that 
provide a basis for determining CWA jurisdiction over the waters 
subject to this provision. Nevertheless, the three factors listed fail 
to capture the breadth of the effects on interstate or foreign commerce 
that could result from the destruction or degradation of the waters 
subject to paragraph (3). Reliance on these factors alone would lead to 
erroneous conclusions concerning the nexus between the discharge of 
dredged or fill material into these waters and resulting effects on 
interstate commerce. Any determination as to whether a significant 
nexus with interstate commerce results from discharge of dredged or 
fill material into waters subject to 33 CFR 328.3(a)(3) must be based 
on the hydrological and functional relationships of those waters to 
other waters of the U.S.
    The Clean Water Act (CWA) sets forth an explicit goal to ``restore 
and maintain the chemical, physical, and biological integrity of the 
Nation's waters''. The concept of ``integrity'' was recognized by 
Congress as having a broad, ecological context, i.e. ``a condition in 
which the natural structure and function of ecosystems is maintained'' 
(H.R. Rep. 92-911, 92d Cong., 2d Sess. 76 (1972). CWA jurisdiction, 
therefore, should extend to all waters of the United States that 
perform functions necessary to achieve the goal of the law, consistent 
with the Commerce Clause. Geographic isolation of waters is a poor 
surrogate by which to judge the function of these waters in achieving 
the goals of the CWA or their relation to interstate and foreign 
commerce.
    In United States v. Riverside Bayview Homes, Inc., the Supreme 
Court ``found that Congress' concern for the protection of water 
quality and aquatic ecosystems indicated its intent to regulate 
wetlands 'inseparably bound up with the 'waters' of the United States'' 
(474 U.S. 121, 1985, at 134). Geographically isolated wetlands are as 
inseparably bound up with waters of the U.S. as adjacent wetlands. 
Geographically isolated wetlands commonly are connected hydrologically 
to other wetlands or other waters by means of surface or subsurface 
flows (e.g., prairie potholes and Nebraska Sandhills wet meadows) or 
infrequent overflows (e.g., West Coast vernal pools). Tiner et al. 
(2002) note, ``Many wetlands considered isolated from the landscape or 
geographic perspective are connected hydrologically via groundwater to 
other wetlands and to rivers and streams . . . Other geographically 
isolated wetlands may become hydrologically linked to other wetlands 
during extremely wet years as surface water overflows from one 
depressional wetland to another.'' Prairie pothole wetlands and 
wetlands in karst regions are notable examples. Truly isolated wetlands 
that have no surface water or groundwater connection to other waters do 
exist (e.g., Southwest playas and Rainwater Basin wetlands in 
Nebraska), but such wetlands clearly are the exception (Tiner et al. 
2002). Many waters thought to be intrastate waters are likely in fact 
to be interstate waters when hydrological linkages are understood and 
taken into account.
    In United States v. Riverside Bayview Homes, Inc., the Supreme 
Court noted ``the evident breadth of congressional concern for 
protection of water quality and aquatic ecosystems,'' and ``the 
inherent difficulties of defining precise bounds to regulable waters'' 
(474 U.S. 121, 1985, at 133 and 134). The Supreme Court went on to 
conclude that regulation of wetlands in that case was warranted on the 
basis of, ``the Corps' ecological judgment about the relationship 
between waters and their adjacent wetlands.'' With respect to this 
hydrological relationship between waters and adjacent wetlands, the 
Supreme Court stated,
    ``For example, wetlands that are not flooded by adjacent waters may 
still tend to drain into those waters. In such circumstances, the Corps 
has concluded that wetlands may serve to filter and purify water 
draining into adjacent bodies of water, and to slow the flow of surface 
runoff into lakes, rivers, and streams thus preventing flooding and 
erosion'' (474 U.S. 121, 1985, at 134).
    This statement applies equally well to geographically isolated 
wetlands. Several studies have concluded that loss of prairie pothole 
wetlands, for example, contributes to flooding and flood damages (e.g., 
Brun et al. 1981; Campbell and Johnson 1975; Moore and Larson 1979). 
Similarly, an analysis for a Federal interagency task force determined 
that watersheds with prairie potholes would be the most effective for 
restoring wetlands to reduce flood damages downstream (Interagency 
Floodplain Management Review Committee 1994).
    The waters subject to 33 CFR 328.3(a)(3) often contribute to 
groundwater supplies (including regional aquifers) as water enters more 
permeable adjacent soils and moves downward to underlying aquifers and 
flows laterally to augment stream flows. According to Tiner et al. 
(2002), ``Many wetlands that appear isolated from surface waters 
actually are vital components of regional water systems, since they 
contribute to local and regional aquifers.'' Hubbard (1991) discusses 
the importance of prairie pothole wetlands in groundwater recharge. 
Playa lakes are major recharge sites in the Southern High Plains (Wood 
and Osterkamp 1984 as reported in Carter 1996). Comments by Ducks 
Unlimited on this ANPR provide extensive additional support to 
demonstrate the linkages among geographically isolated wetlands, 
groundwater and navigable waters within a broad variety of wetland 
categories.
    Geographically isolated wetlands and the other waters generally 
subject to 33 CFR 328.3(a)(3) also play an important role in 
maintaining the quality of other waters of the United States. 
Substantial sums are spent annually under section 319 and other 
provisions of the CWA to construct geographically isolated wetlands to 
control nonpoint source pollution and improve the quality of surface 
waters. These efforts under the CWA should not be undone by a narrow 
interpretation of the definition of ``waters of the United States.'' 
Destruction or degradation of geographically isolated wetlands 
contributes to the erosion of stream banks by increasing the frequency 
of high flows. The State of Illinois' 1997 Integrated Management Plan 
for the Illinois River Watershed describes how sedimentation, caused in 
part by stream bank erosion, is filling up backwater lakes on the 
Illinois River and creating problems for navigation. The development of 
geographically isolated wetlands also has other water quality impacts. 
Studies have shown, for example, that prairie potholes significantly 
reduce concentrations of pollutants in agricultural runoff, and 
conversely, a study in the prairie pothole region of northwestern Iowa 
has shown that pollution concentrations increase as wetland acreage is 
decreased by drainage (Hubbard 1988). Phillips et al. (1993) have shown 
on the eastern shore of the Chesapeake Bay that concentrations of 
nitrates decrease in correlation with the presence of forested 
wetlands, many of which are in isolated ``closed depressions.'' Tiner 
et al. (2002) discuss how the function of geographically isolated 
pocosin wetlands benefits estuaries by giving them more time to 
assimilate the fresh water without rapid and drastic fluctuations in 
water quality.
    Although the Supreme Court found in Solid Waste Agency of Northern 
Cook County v. United States Army Corps of Engineers et al. (SWANCC) 
that the COE had erred in relying exclusively on the existence of 
migratory bird habitat as a basis for regulation, the Court did not 
outlaw consideration of the use of wetlands by migratory birds, 
endangered species and other wildlife factors to be considered in 
making jurisdictional determinations. It merely ruled that such 
considerations could not serve as the sole basis for asserting 
jurisdiction. Isolated wetlands provide habitat functions that in many 
cases are distinct from, and interrelated with, the functions provided 
by other waters. Maintaining this functional linkage between 
geographically isolated wetlands and other waters is essential to 
restoring and maintaining the biological integrity of the Nation's 
waters.
    The great importance of geographically isolated wetlands and other 
waters identified under 33 CFR 328.3(a)(3) as habitat for migratory 
birds and endangered and threatened species is documented extremely 
well. Waterfowl, other migratory birds and many aquatic animals use 
these wetlands for critical stages of their lives even while depending 
on other waters at other times. The high density of geographically 
isolated wetlands in the prairie pothole region produces half of North 
America's waterfowl in an average year; 41 percent of the continent's 
breeding dabbling ducks use this area (Bellrose 1979, Smith et al. 
1964, Tiner et al. 2002). Geographically isolated wetlands east of the 
Rocky Mountains provide a series of feeding and resting areas for 
millions of birds that overwinter along the Gulf Coast and migrate to 
northern breeding grounds, and the geographically isolated wetlands of 
the Rainwater Basin provide habitat for nearly all of the mid-
continental population of greater white-fronted geese (Tiner et al. 
2002). The degradation, or destruction of these and other 
geographically isolated wetlands adversely affects nearly 3 million 
migratory bird hunters, including about 1.6 million duck hunters, and 
has a significant effect on interstate and foreign commerce. These 
hunters spent about $1.4 billion in 2001 for hunting related goods and 
services; 14 percent of this hunting nationwide took place in a State 
other than the one in which the participant resided (U.S. Fish and 
Wildlife Service 2002). In addition, 14.4 million people participated 
in watching waterfowl, with associated expenditures and values also 
measured in the billions of dollars (U.S. Fish and Wildlife Service 
2002).
    As demonstrated above, there are many reasons to protect wetlands 
that are directly related to the water quality goals that are clearly 
within the intent of Congress as interpreted by the Supreme Court in 
SWANCC and Riverside Bayview Homes decisions and within the scope of 
Congress' power under the Commerce Clause. The proposed rule should 
revise 33 CFR 328.3(a)(3) to make clear that, under applicable Supreme 
Court decisions, it is the ``aggregate effect'' of discharges of 
dredged or fill material on interstate commerce that must be evaluated, 
not simply the effect of regulating a particular wetland fill. As the 
Supreme Court acknowledged in the SWANCC decision, most discharges of 
dredge or fill material involve the kind of economic activity that 
falls squarely within the Commerce Clause.
    WMI recommends, therefore, that 33 CFR 328.3(a)(3) be revised to 
read as follows:
    (3) All other waters such as intrastate lakes, rivers, streams, . . 
. or natural ponds, the use, degradation or destruction of which in the 
aggregate could affect interstate or foreign commerce including any 
such waters:
    (i) which are or could be used by interstate or foreign travelers 
for recreational or other purposes; or
    (ii) from which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce: or
    (iii) which are or could be used for industrial purposes by 
industries in interstate commerce; or
    (iv) which through storage of water prevent or could prevent 
flooding of waters identified in paragraphs (a)(1)-(2) of this section; 
or
    (v) which recharge or could recharge interstate aquifers or waters 
identified in paragraphs (a)(1)-(2) of this section; or
    (vi) which affect or could affect the quality of waters identified 
in paragraphs (a)(1)-(2) of this section; or
    (vii) which provide or could provide water for livestock or crops 
sold in interstate commerce; or
    (viii) which, in combination with any waters under subparagraphs 
(i)-(vii), provide or could provide habitat for birds protected by 
Migratory Bird Treaties or for species listed under the Endangered 
Species Act (16 USC 1533 et seq.).
    3. Whether the regulations should define ''isolated waters,'' and 
if so, what factors should be considered in determining whether a water 
is or is not isolated for jurisdictional purposes?
    If the regulations define the term ``isolated waters,'' it should 
not be on the basis of geographic isolation, because such a definition 
has no basis in science. Jurisdictional determinations instead should 
be based on the hydrological or physical, chemical or biological 
functional relationships among wetlands and other waters. Jurisdiction, 
therefore, should extend to all waters of the United States that 
perform functions necessary to achieve the goal of the CWA, consistent 
with the Commerce Clause as interpreted by the Courts. Decisions 
concerning which intrastate waters fall within the jurisdiction of the 
CWA's definition of ``waters of the United States'' should be made on 
the basis of whether they fall within the revised definition of 33 CFR 
328.3(a)(3) recommended above for making jurisdictional determinations 
based on the aggregate effect of regulated activities on interstate 
commerce or on waters regulated under 33 CFR 328.3(a)(1)-(2). If the 
term ``isolated waters'' is defined, it should be defined as those 
waters that have no hydrological or physical, chemical or biological 
functional relationship with any waters that otherwise would meet the 
definition of ``waters of the United States.''

                               APPENDIX A

    WMI believes that the Joint Memorandum under Appendix A of the 
ANPR, which provides clarifying guidance regarding the Supreme Court's 
SWANCC decision, should be modified as follows:
    1. Clarify that the SWANCC decision did not invalidate any of the 
provisions of 33 CFR 328.3(a), which define ``waters of the United 
States.'' Only the total reliance on the use of waters as habitat by 
birds protected by Migratory Bird Treaties in the policy and guidance 
document known as the ``Migratory Bird Rule'' was invalidated. 
Moreover, the Joint Memorandum should clarify that the SWANCC decision 
did not bar jurisdictional determinations from considering the use of 
wetlands as habitat by migratory birds; only that such considerations 
could not be the sole basis for jurisdictional determinations.
    2. The Joint Memorandum should not effectively remove all waters 
under 33 CFR 328.3(a)(3) from CWA jurisdiction by requiring field staff 
to seek formal project-specific Headquarters approval prior to 
asserting jurisdiction over such waters. We view this requirement as a 
substantial overreaction to the SWANCC decision and ask that it be 
deleted from the guidance.
    3. WMI recommends that the Joint Memorandum guidance require 
assessment of the hydrological, physical, chemical and biological 
functions performed by wetlands within a given watershed in making CWA 
jurisdictional determinations. As discussed above, these functions 
include: flood control, erosion control, water quality maintenance, 
groundwater recharge, and conservation of biological diversity.

Literature Cited

Bellrose, F.C. 1979. Species distribution, habitats, and 
    characteristics of breeding dabbling ducks in North America. In 
    T.A. Bookhout, ed. Waterfowl and Wetlands--An Integrated Review. 
    Proceedings of a symposium, 39th Midwest Fish and Wildlife 
    Conference (December 5, 1977), Madison, WI. LaCrosse Printing 
    Company, Inc., LaCrosse, WI.
Brun, L.J., J.L. Richardson, J.W. Enz and J.K. Larsen. 1981. Stream 
    flow changes in the southern Red River Valley. M.D. Farm. Res. 
    38:1-14.
Campbell, K.L. and H.P. Johnson. 1975. Hydrologic simulation of 
    watersheds with artificial drainage. Water Resour. Res. 11:120-126.
Carter, V. 1996. Technical aspects of wetlands: wetland hydrology, 
    water quality and associated functions. In J.D. Fretwell, J.S. 
    Williams, P.J. Redman, eds. National Water Summary on Wetland 
    Resources, USGS Water Supply Paper 2425.
Dahl, T.E. 2000. Status and trends of wetlands in the conterminous 
    United States 1986 to 1997. U.S. Department of the Interior: Fish 
    and Wildlife Service, Washington, DC. 82 pp.
Hubbard, D.E. 1988. Glaciated prairie wetland functions and values: A 
    synthesis of the literature. U.S. Fish and Wildlife Service, 
    Washington, DC. Biol. Rep. 88 (43).
Hubbard, D.E. 1991. Statement before the U.S. Senate Subcommittee on 
    Environmental Pollution concerning the status of wetlands science. 
    U.S. Government Printing Office, Washington, DC. 49 pp.
Interagency Floodplain Management Review Committee. 1994. Sharing the 
    challenge: Floodplain management into the 21st Century. Pgs. 46-47.
Moore, I.D. and C.L. Larson. 1979. Effects of drainage projects on 
    surface runoff from small depressional watersheds in the North-
    central region. Univ. Minnesota Water Resour. Res. Cent. Bull. 99. 
    225 pp.
Phillips, P.J., J. M. Denver, R. J. Shedlock and P.A. Hamilton. 1993. 
    Effect of forested wetlands on nitrate concentrations in 
    groundwater and surface water on the Delmarva Peninsula. 13 
    Wetlands 75-83.
Smith, A.G., J.H. Stoudt, and J.B. Gollop. 1964. Prairie potholes and 
    marshes. Pages 39-50 in J.P. Linduska, ed. Waterfowl Tomorrow. U.S. 
    Fish and Wildlife Service, Washington, DC.
Tiner, R.W., H. C. Bergquist, G. P. DeAlessio, and M. J. Starr. 2002. 
    Geographically isolated wetlands: A preliminary sssessment of their 
    characteristics and status in selected areas of the United States. 
    U.S. Department of the Interior, Fish and Wildlife Service, 
    Northeast Region, Hadley, MA.
Wood, W.W. and W.R. Osterkamp. 1984. Recharge to the Ogallala Aquifer 
    from playa lake basins on the Llano Estacado (An outrageous 
    proposal?). Pages 337-349 in G.A. Whetstone, ed. Proceedings of the 
    Ogallala Aquifer Symposium II. Texas Tech University, Lubbock, TX.

                                 
