[Senate Hearing 109-1071]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 109-1071
 
        INTERPRETING THE RAPANOS/CARABELL SUPREME COURT DECISION

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON FISHERIES,
                          WILDLIFE, AND WATER

                                 of the

                             COMMITTEE ON 
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             AUGUST 1, 2006

                               __________

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


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED NINTH CONGRESS

                             SECOND 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

                 LINCOLN CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia             HILLARY RODHAM CLINTON, New York
LISA MURKOWSKI, Alaska               JOSEPH I. LIEBERMAN, Connecticut
JIM DeMINT, South Carolina           FRANK R. LAUTENBERG, New Jersey
DAVID VITTER, Louisiana              BARACK OBAMA, Illinois


                            C O N T E N T S

                              ----------                              
                                                                   Page

                             AUGUST 1, 2006
                           OPENING STATEMENTS

Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island     1
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New 
  York...........................................................     5
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     7
Jeffords, Hon. James M., U.S. Senator from the State of Vermont..    10
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................    15
Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska......    12

                               WITNESSES

Adler, Jonathan H., Professor of Law, Co-director, Center for 
  Business Law and Regulation, Case Western Reserve University 
  School of Law..................................................    32
    Prepared statement...........................................    76
    Responses to additional questions from:
        Senator Chafee...........................................    81
        Senator Inhofe...........................................    82
        Senator Jeffords.........................................    83
        Senator Murkowski........................................    87
Buzbee, William W., Professor of Law, Director of Environmental 
  and Natural Resources Law Program, Emory Law School............    34
    Prepared statement...........................................    87
    Responses to additional questions from:
        Senator Chafee...........................................    91
        Senator Inhofe...........................................    94
        Senator Jeffords.........................................    95
        Senator Murkowski........................................    96
Clayton, Chuck, The Izaak Walton League of America...............    36
    Prepared statement...........................................    97
    Responses to additional questions from:
        Senator Chafee...........................................    98
        Senator Inhofe...........................................   100
        Senator Jeffords.........................................   101
Cruden, John C., Deputy Assistant Attorney General, Environment 
  and Natural Resources Division, U.S. Department of Justice.....    21
    Prepared statement...........................................    63
    Responses to additional questions from:
        Senator Bond.............................................    75
        Senator Chafee...........................................    69
        Senator Inhofe...........................................    71
        Senator Jeffords.........................................    73
        Senator Murkowski........................................    75
Grumbles, Benjamin H., Assistant Administrator For Water, U.S. 
  Environmental Protection Agency; And John Paul Woodley, Jr., 
  Assistant Secretary of the Army for Civil Works, Department of 
  the Army.......................................................    18
    Prepared statement...........................................    50
    Responses to additional questions from:
        Senator Bond.............................................    61
        Senator Chafee...........................................    54
        Senator Inhofe...........................................    55
        Senator Jeffords.........................................    56
        Senator Murkowski........................................    62
Kisling, Keith, National Association of Wheat Growers, National 
  Cattlemen's Beef Association...................................    39
    Prepared statement...........................................   103
    Responses to additional questions from:
        Senator Inhofe...........................................   105
        Senator Jeffords.........................................   105

                          ADDITIONAL MATERIAL

Article, ELR News & Analysis; Could SWANCC Be Right? A New Look 
  at the Legislative History of the Clean Water Act..............   124
Letters:
    Environmental Protection Agency (EPA)........................    48
    Frank H. Murkowski, Governor, State of Alaska................   109
    Undersigned by: American Rivers, Audubon, Clean Water Action, 
      Earthjustice, Environmental Integrity Project, Friends of 
      the Earth, Natural Resources Defense Council, River 
      Network, Sierra Club, U.S. Public Interest Research Group..   141
Statements:
    Croton Watershed Clean Water Coalition (CWCWC)...............   123
    Feingold Hon. Russ, U.S.Senator from the State of Wisconsin..    17
    State of Alaska, Position on the Reach of Federal Wetlands 
      Jurisdiction Under the Clean Water Act.....................   117
    Undersigned by: Earnest Ballard, Gregg D. Renkes, Tom Irwin, 
      Kevin Duffy, Mike Barton...................................   110


        INTERPRETING THE RAPANOS/CARABELL SUPREME COURT DECISION

                              ----------                              


                         TUESDAY, AUGUST 1, 2006

                               U.S. Senate,
         Committee on Environment and Public Works,
            Subcommittee on Fisheries, Wildlife, and Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:30 p.m. in 
room 406, Dirksen Senate Office Building, the Honorable Lincoln 
Chafee (chairman of the committee) presiding.
    Present: Senators Chafee, Inhofe, Jeffords, Lautenberg, 
Murkowski, and Clinton.

OPENING STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE 
                     STATE OF RHODE ISLAND

    Senator Chafee. Good afternoon. This is the Subcommittee on 
Fisheries, Wildlife and Water, and a hearing on The Water of 
the United States: Interpreting the Rapanos/Carabell Decision.
    Welcome to today's subcommittee hearing. This is of course 
as a result of the recent U.S. Supreme Court decision in the 
joint cases of Rapanos v. United States and Carabell v. U.S. 
Army Corps of Engineers.
    As you know, the Constitution creates a Government of 
limited power. Congress can only enact legislation in areas 
that are specifically set out under the Constitution. Congress 
is specifically prohibited from enacting legislation in other 
areas, leaving this authority to the States for the 10th 
Amendment. In the 10th Amendment, it says the power is not 
delegated to the United States by the Constitution or reserved 
to the States respectively or to the people. Every law enacted 
by Congress must be based on one of the powers enumerated in 
the Constitution. The framers of the Constitution gave Congress 
broad power to regulate immigration, national security and 
economic activity between the States and left most of the 
powers to the States.
    However, Section 8 of Article I states that the Congress 
shall have the power to regulate commerce among the several 
States. This is the Commerce Clause, and it is the most 
powerful provision in the Constitution providing Congress the 
authority to enact legislation in a host of areas, including 
environmental protection.
    The Clean Water Act is one of our most successful 
environmental statutes, aimed at restoring and maintaining the 
chemical, physical and biological integrity of the Nation's 
waters. Originally enacted in 1948, the Act was amended 
numerous times until it was reorganized and expanded in 1972. 
Among the provisions include in the 1972 Act was Section 404, 
which in combination with Section 301(a) requires persons 
wishing to discharge dredged or fill material into navigable 
waters to obtain a permit from U.S. Army Corps of Engineers.
    At the same time, Congress defined navigable waters under 
the broad term of the waters of the United States, and 
indicated in the conference report to the 1972 Act that this 
new phrase was intended to be given ``the broadest possible 
constitutional interpretation.'' The new definition for 
``navigable waters'' was retained during the 1977 amendments to 
the Clean Water Act, after Congress debated and ultimately 
rejected amendments that would have narrowed the corps' 
jurisdiction under the Section 404 program.
    Solid Waste Energy of Northern Cook County v. The Army 
Corps of Engineers. In this case, the Supreme Court limited the 
authority of Federal agencies to extend the Clean Water Act 
protections to non-navigable, interstate, isolated wetlands 
based solely on their use by migratory birds.
    The Rapanos and Carabell cases, and the Supreme Court's 
ruling once again raise significant questions in relation to 
the comprehensive nature of the Clean Water Act. In crafting 
the Clean Water Act in 1972 and amending the law in 1977, what 
geographic scope did Congress intend the Clean Water Act to 
encompass? Further, is the application of the Clean Water Act 
to the wetlands at issue in these cases a permissible exercise 
of Congressional authority under the Commerce clause of the 
Constitution?
    On June 19th, the Supreme Court held by a vote of 5-4 that 
the judgments of the Sixth Circuit in the joint cases of 
Rapanos and Carabell be vacated and remanded both cases to the 
lower court for further consideration. We are now here to 
analyze the Supreme Court's ruling in these cases. The Rapanos 
case arose as a civil enforcement action filed by the United 
States in 2000, seeking penalties for the filling of Michigan 
wetlands without a Clean Water Section 404 permit. The Carabell 
petitioners were denied a Corps permit to fill in the wetlands 
on their property near Lake St. Clair in order to construct 130 
condominium units.
    The Court presented us with a total of five opinions. In 
the Scalia plurality decision, four justices supported a more 
constrictive interpretation of the term ``waters of the United 
States.'' Through this interpretation, the plurality would 
place limits on waters flowing intermittently or ephemerally, 
exempt non-navigable interstate isolated waters associated with 
the SWANCC decision I referred to earlier from coverage under 
the Act, and require that wetlands covered by the Act be only 
those with a continuous surface connection to traditionally 
navigable waters.
    The Stevens and Breyer dissenting opinions stated that the 
corps' existing approach regarding wetlands regulation is the 
correct interpretation of the Clean Water Act. It is Justice 
Kennedy's opinion that one must look at most closely. While 
Kennedy agreed with the plurality to remand the cases, he 
rejects the plurality's arguments regarding the need for 
continuous surface connection. Instead, Justice Kennedy sets up 
a ``significant nexus'' test, also raised in SWANCC, that 
requires regulators to determine on a case by case basis if 
wetlands have a significant nexus with navigable waters.
    We have two panels of witnesses here today to assist the 
subcommittee and members of the full committee in interpreting 
the Rapanos/Carabell decision. Our two panels include witnesses 
representing the Federal Government as well as two legal 
experts and two witnesses representing the regulated and 
environmental community.
    As Congress continues to assess this ruling and determine 
whether legislative remedies are necessary to clarify the 
intent of the Clean Water Act, we look forward to your 
testimony and your interpretation of the joint cases. We also 
hope you will be able to shed some light on the situation.
    I am joined by the Chairman of the full committee, Senator 
Inhofe; Senator Murkowski; the Ranking Member of the 
subcommittee, Senator Clinton; Senator Jeffords, Ranking Member 
of the full committee; and Senator Lautenberg. I will now turn 
to the Ranking Member of the subcommittee, Senator Clinton.
    [The prepared statement of Senator Chafee follows:]

        Statement of Hon. Lincoln Chafee, U.S. Senator from the 
                         State of Rhode Island

    Good morning. Welcome to today's subcommittee hearing on the recent 
U.S. Supreme Court decision in the joint cases of Rapanos v. United 
States and Carabell v. U.S. Army Corps of Engineers.
    As you know, the Constitution creates a Government of limited power 
Congress can only enact legislation in areas that are specifically set 
out under the Constitution. Congress is expressly prohibited from 
enacting legislation in other areas, leaving this authority to the 
States per the Tenth Amendment ``The powers not delegated to the United 
States by the Constitution are reserved to the States respectively, or 
to the people''.
    Every law enacted by Congress must be based on one of the powers 
enumerated in the Constitution. The Framers of the Constitution gave 
Congress broad power to regulate immigration, national security and 
economic activity between the States, and left most other power with 
the States.
    However, Section Eight of Article I states that ``the Congress 
shall have the power to regulate Commerce among the several States''. 
This is the Commerce Clause and it is the most powerful provision in 
the Constitution providing Congress the authority to enact legislation 
in a host of areas including environmental protection. A key Supreme 
Court case regarding the Commerce Clause was in 1942 when the Supreme 
Court upheld legislation that allowed USDA to set quotas on local wheat 
growing. The Court noted that while crops regulated may never actually 
enter into interstate commerce, such local activity, coupled with 
similar activity in other States as an aggregate has a direct impact on 
interstate commerce. Since then using the ``aggregate effects test'' or 
``substantial effects test,'' Congress has passed broad ranging 
environmental legislation such as the Clean Water Act, which we are 
here to discuss today.
    The Clean Water Act is one of our most successful environmental 
statutes, aimed at restoring and maintaining the chemical, physical and 
biological integrity of the Nation's waters. Originally enacted in 
1948, the Act was amended numerous times until it was reorganized and 
expanded in 1972.
    Among the provisions included in the 1972 Act was Section 404, 
which in combination with Section 301(a) requires persons wishing to 
discharge dredged or fill material into ``navigable waters'' to obtain 
a permit from the U.S. Army Corps of Engineers.
    At the same time, Congress defined ``navigable waters'' under the 
broad term of ``the waters of the United States,'' and indicated in the 
conference report to the 1972 Act that this new phrase was intended to 
be given ``the broadest possible constitutional interpretation''.
    The new definition for ``navigable waters'' was retained during the 
1977 Amendments to the Clean Water Act, after Congress debated and 
ultimately rejected amendments that would have narrowed the corps' 
jurisdiction under the Section 404 Program.
    The last time the Supreme Court ruled on a major Clean Water Act 
case was in 2001 with Solid Waste Agency of Northern Cook County v. 
Army Corps of Engineers (SWANCC). In this case, the Supreme Court 
limited the authority of Federal agencies to extend Clean Water Act 
protections to non-navigable, intrastate, ``isolated'' wetlands based 
solely on their use by migratory birds.
    The Rapanos and Carabell cases and the Supreme Court's ruling have 
once again raised significant questions in relation to the 
comprehensive nature of the Clean Water Act In crafting the Clean Water 
Act in 1972, and amending the law in 1977, what geographic scope did 
Congress intend the Clean Water Act to encompass? Did the U.S. Army 
Corps of Engineers act reasonably in interpreting the term ``waters of 
the United States'' as it appears in the Act to encompass a broad range 
of wetland areas? Further, is the application of the Clean Water Act to 
the wetlands at issue in these cases a permissible exercise of 
Congressional authority under the Commerce Clause of the Constitution?
    Additionally, the Clean Water Act has broad authority over not only 
the wetlands permitting program, but also programs such as the Section 
301 program governing discharges of pollutants; requirements to obtain 
permits prior to discharge under Section 402; water quality standards 
under Section 303; and oil spill liability, prevention, and control 
measures under Section 311, among others. All of these programs utilize 
the one definition of ``navigable waters'' that applies to the entire 
Clean Water Act.
    On June 19th, the Supreme Court held, by a vote of 5-4 that the 
judgments of the Sixth Circuit in the joint cases of Rapanos and 
Carabell be vacated, and remanded both cases to the lower court for 
further consideration. We are now here to analyze the Supreme Court's 
ruling in these cases.
    The Rapanos case arose as a civil enforcement action filed by the 
United States in 2000, seeking penalties for the filling of Michigan 
wetlands without a Clean Water Act Section 404 permit. The question 
posed by this case is the Army Corps of Engineers' jurisdiction over 
wetlands that are adjacent to non-navigable tributaries of 
traditionally ``navigable'' waters.
    The Carabell petitioners were denied a corps permit to fill in the 
wetlands on their property near Lake St. Clair in order to construct 
130 condominium units. The question posed by this case is the Federal 
Government's jurisdiction over wetlands that are not hydrologically 
connected to any ``waters of the United States''.
    The Court presented us with a total of five opinions--Justice 
Scalia issued a plurality opinion along with Chief Justice Roberts, 
Justice Thomas, and Justice Alito. Chief Justice Roberts wrote a 
separate opinion concurring with the plurality. Justice Kennedy wrote 
an opinion concurring in the judgment of the plurality. Justice 
Stevens, with whom Justices Souter, Ginsberg, and Breyer joined, wrote 
a dissenting opinion. Justice Breyer also issued his own separate 
dissenting opinion.
    In the Scalia plurality decision, four justices supported a more 
constrictive interpretation of the term ``the waters of the United 
States''. Through this interpretation, the plurality would place limits 
on waters flowing intermittently or ephemerally; exempt non-navigable, 
intrastate, ``isolated'' waters addressed in SWANCC from coverage under 
the Act; and require that wetlands covered by the Act be only those 
with a continuous surface connection to traditionally ``navigable 
waters''.
    The Stevens and Breyer dissenting opinions state that the corps' 
existing approach regarding wetlands regulation is the correct 
interpretation of the Clean Water Act. It is Justice Kennedy's opinion 
that one must look at most closely. While Kennedy agreed with the 
plurality to remand the cases, Kennedy rejects the plurality's 
arguments regarding the need for a continuous surface connection. 
Instead, Justice Kennedy sets up a ``significant nexus'' test also 
raised in SWANCC that requires regulators to determine on a case-by-
case basis if wetlands have a significant nexus with navigable waters.
    We have invited two panels of witnesses here today to assist the 
subcommittee and members of the full committee in interpreting the 
Rapanos/Carabell decision. Our two panels include witnesses 
representing the Federal Government, as well as two legal experts and 
two witnesses representing the regulated and environmental communities. 
As Congress continues to assess the Rapanos/ Carabell ruling and 
determine whether legislative remedies are necessary to clarify the 
intent of the Clean Water Act, we look forward to your testimony and 
your interpretation of the joint cases. We also hope you will be able 
to shed some light on the situation.

    Senator Chafee. Senator Clinton.

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

    Senator Clinton. Thank you very much, Mr. Chairman. At the 
outset, I ask unanimous consent that a letter about the 
Rapanos/Carabell decision, signed by the Crotan Watershed Clean 
Water Coalition, be made a part of the record. Senator Chafee. 
Without objection, so ordered.
    [The referenced letter can be found on page 123.]
    Senator Clinton. This is an extremely important hearing, as 
it goes to the heart of the Clean Water Act, which I believe is 
one of our Nation's greatest environmental success stories. We 
should just think back, before the Clean Water Act was enacted, 
rivers were so polluted they caught on fire. And wetlands were 
routinely filled with the blessing and even the assistance of 
the Federal Government.
    Thanks to those who crafted this invaluable statute back in 
1972, and those who have implemented and enforced it ever 
since, we have come a very long way in cleaning up our Nation's 
rivers, lakes, streams and coastlines, and in protecting 
valuable wetlands. But we still have work to do. The most 
recent water quality report for New York, for example, from 
2002, indicates that 14 percent of our rivers and streams, 75 
percent of our lakes, ponds and reservoirs, and 52 percent of 
our bays and estuaries are impaired, meaning they are not 
suitable for at least one designated use, such as recreation, 
drinking water, or fishing. So the implications of the Rapanos/
Carabell decision are incredibly important.
    While the 4-1-4 decision of the Court largely left the 
protections of the Clean Water Act intact, it was a close call. 
Justice Scalia's reasoning, supported by Justices Roberts, 
Alito and Thomas, would have eliminated protections for 
millions of acres of wetlands, tributaries and intermittent or 
ephemeral streams. That would have been a devastating result.
    The litigation centers, as the Chairman said, on the 
definition of the waters of the United States, a term that 
governs much more than just the wetlands fill program. In fact, 
that definition also applies to permits for discharge of 
pollutants, water quality standards, oil spill liability, 
prevention and control measures and enforcement. So the full 
range of Federal water quality protections is at issue. That is 
why so many stakeholders, including New York Attorney General 
Elliott Spitzer and 32 other attorneys general, 4 former EPA 
administrators, the City of New York and many others filed 
amicus briefs supporting the Government's position in this 
case.
    The Government's position very briefly was, ``the corps and 
EPA have acted reasonably in defining the Clean Water Act term 
the `waters of the United States' to include wetlands adjacent 
to tributaries of traditional navigable waters. The connection 
between traditional navigable waters and their tributaries is 
significant in practical terms, because pollution of the 
tributary has the potential to degrade the quality of the 
traditional navigable waters downstream. If tributaries of 
traditional navigable waters are covered by the Clean Water 
Act, then wetlands adjacent to those tributaries are covered as 
well.''
    That is the Government's position. I obviously agree with 
it. And I want to highlight one reason why this is so important 
to New York. Millions of New Yorkers rely on New York City's 
drinking water, which has historically in many blind tasting 
tests been considered the best water, the best tap water in 
America.
    Now, New York City negotiated an agreement with the EPA 10 
years ago whereby the city did not have to filter water from 
its Catskills reservoirs. The water quality is highly dependent 
on the protection and treatment provided naturally within the 
nearly 2,000 square miles of land that drain into the city's 19 
collecting reservoirs, including the extensive wetlands, 
approximately 25,800 acres in the watershed area. That is why 
New York City filed an amicus brief, because they did an 
inventory of the wetlands in their watershed. Nearly 10,000 
acres, or 40 percent, are not subject to regulation by New York 
or the city, because these are very small wetlands. But they 
are significant and provide very important water quality 
benefits.
    So the city thus relies on the Federal Government 
protection of its wetlands. So how we define the waters of the 
United States is not some abstract matter for New Yorkers. It 
has profound impact for the quality of our drinking water and 
on our water rates. And that is just one example of why this 
issue is so important. I think Congress needs to clarify this 
position and restore the strongest possible Federal protections 
for our Nation's waters under the Clean Water Act. This is a 
success story, and we should not abandon the States and 
localities who have relied on this Act for more than 30 years.
    So Mr. Chairman, thank you for holding this important 
hearing, and I hope that we will be able to reach bipartisan 
agreement on legislative solutions.
    [The prepared statement of Senator Clinton follows:]

    Statement of Hon. Hillary Rodham Clinton, U.S. Senator from the 
                           State of New York

    Thank you Mr. Chairman.
    At the outset, I ask unanimous consent that a letter about the 
Rapanos-Carabell decision signed by the Croton Watershed Clean Water 
Coalition be made a part of the record.
    This is an extremely important hearing, as it goes to the heart of 
the Clean Water Act, which is one of our greatest environmental success 
stories. Before its enactment, rivers were so polluted they caught on 
fire. And wetlands were routinely filled with the blessing or even 
assistance of the Federal Government.
    Thanks to those who crafted this invaluable statute back in 1972 
more than 30 years ago and those who have implemented and enforced it 
ever since, we have come a long way in cleaning up our Nation's rivers, 
lakes, streams, and coastlines, and in protecting valuable wetlands.
    But we still have work to do. The most recent water quality report 
for New York, from 2002, indicates that 14 percent of rivers and 
streams, 75 percent of lakes, ponds and reservoirs, and 52 percent of 
bays and estuaries are ``impaired,'' meaning that they are not suitable 
for at least one designated use, such as recreation or drinking water.
    So the implications of the Rapanos-Carabell decision are very 
important.
    While the ``4-1-4'' decision of the Court largely left the 
protections of the Clean Water Act intact, it was a close call. Justice 
Scalia's reasoning, supported by Justices Roberts, Alito and Thomas, 
would have eliminated protections for millions of acres of wetlands, 
tributaries, and intermittent or ephemeral streams. That would have 
been a devastating result.
    The litigation centers on the definition of ``the waters of the 
United States,'' a term that governs much more than just the wetlands 
fill program under directly at issue in the case. In fact, that 
definition also applies to permits for discharge of pollutants, water 
quality standards, oil spill liability, prevention and control 
measures, and enforcement.
    So the full range of Federal water quality protections is at issue.
    And I think that is why so many stakeholders including the New York 
Attorney General and 32 other attorneys general, 4 former EPA 
Administrators, the city of New York, and many others filed amicus 
briefs supporting the Government's position in this case.
    I want to briefly outline what the Government's position in the 
case was. The Government argued that, quote: ``the corps and EPA have 
acted reasonably in de fining the CWA term the waters of the United 
States' to include wetlands adjacent to tributaries of traditional 
navigable waters. The connection between traditional navigable waters 
and their tributaries is significant in practical terms, because 
pollution of the tributary has the potential to degrade the quality of 
the traditional navigable waters downstream. If tributaries of 
traditional navigable waters are covered by the CWA, then wetlands 
adjacent to those tributaries are covered as well.'' End quote.
    I agree with that assessment, and I want to highlight one reason 
why this is so important to my State, and in particular, to the 
millions of New Yorkers who rely on New York City's drinking water. As 
I think my colleagues are aware, New York City negotiated an agreement 
with the EPA in 1997 whereby the city does not have to filter water 
from its Catskill reservoirs. But that water quality is highly 
dependent on the protection and treatment provided naturally within the 
nearly 2,000 square miles of land that drain into the City's nineteen 
collecting reservoirs, including the extensive wetlands approximately 
25,800 acres in that watershed area. As I mentioned before, New York 
City filed and amicus brief in this case, and I want to read a portion 
of that brief. Quote: ``Based on the City's inventory of wetlands in 
the watershed of its water supply, nearly 10,000 acres, or 40 percent 
of these wetlands are not subject to regulation by New York State or 
the City because these smaller wetlands, which nonetheless provide 
significant water quality benefits, approximately 4,300 acres, or 43 
percent, lack regular, obvious surface connections to surface waters 
The City thus relies on Federal protection of smaller wetlands within 
its watershed.'' End quote.
    So how we define ``the waters of the United States'' is not an 
abstract matter for New Yorkers. It has profound impacts for the 
quality of their drinking water, and on their water rates, as building 
a filtration plant would cost billions of dollars.
    That's just one example of why this issue is so important to my 
constituents.
    I think Congress needs to act to clarify this position, and to 
restore the strongest possible Federal protections for our Nation's 
waters under the clean Water Act. We should not abandon States and 
localities, who have relied on the Act for more than 30 years.
    Mr. Chairman, I thank you for holding this important hearing, and I 
hope that we can follow this with a hearing in the fall to look at 
possible legislative solutions.

    Senator Chafee. Thank you, Senator Clinton.
    Senator Inhofe.

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

    Senator Inhofe. Thank you, Chairman Chafee, for holding the 
subcommittee hearings. I would observe this is the first 
subcommittee hearing in this room since it has been rebuilt. So 
that steps it up a little bit.
    The Federal authority to regulate discharges into ``waters 
of the United States'' rests on the Constitution's Commerce 
Clause. The discharge must in some way impact, we are talking 
about what the law is and what the courts have interpreted, 
impact interstate navigable waters. Many have sought to broaden 
this authority in the name of protecting the environment. 
However well-intentioned they may be, those who seek to expand 
Federal jurisdiction must do so within the bounds of the 
Constitution.
    We have wrestled unnecessarily with how to define the point 
at which the corps and the EPA exceed not just Congressional 
intent but constitutional limitations since the passage of the 
Act in 1972. I agree with Senator Clinton on the significance 
of that successful Act in 1972. In its most recent decision on 
the matter, the Supreme Court has clearly sought to rein in the 
corps and narrow Federal jurisdiction. In the 2001 SWANCC 
decision, the Court struck down the corps' jurisdiction over 
non-navigable, isolated, intrastate wetlands. However, the 
corps and EPA failed to issue new regulations reflecting the 
corps' decision, instead pursuing a case by case analysis for 
these areas.
    In June of this year, the Court again visited the question 
of where the limits on Federal control over local land use 
decisions lie. While the Court didn't go as far as I believe it 
should have in its Rapanos decision, the Court ruled that the 
corps had overstepped its authority by regulating areas as 
wetlands over which it had no jurisdiction. The plurality 
issued a strong defense of the Constitution. Justice Kennedy 
agreed that the corps had over-reached and sent the case back 
to the Sixth Circuit for rehearing. In doing so, Justice 
Kennedy stated, ``The dissent concludes that the ambiguity in 
the phrase navigable waters allows the corps to construe the 
statute as reaching into all non-isolated wetlands.'' This, 
though, seems incorrect.
    The Clean Water Act, in addition to protecting the 
navigable waters, also protects the rights of the States to 
regulate and oversee waters within their borders. State and 
local Governments are fully able to step in and protect these 
water bodies as they see fit. Indeed, in most cases, this is 
the most appropriate means of protecting these areas.
    There are State and local environmental regulatory programs 
for isolated waters within 35 States. While many would argue 
that these are lacking resources, States have not stepped up to 
protect these areas because they have not needed to. They have 
yielded their authority to the Federal bureaucracy, all to 
eager to expand its power to regulate local land use. This 
trend must be reversed.
    Most of these intrastate, non-navigable areas are on 
private property. Behind me are some pictures of these 
intrastate, non-navigable areas. I say areas, because you will 
notice that most of them are dry. The Constitution protects the 
right of property owners to develop that property as he sees 
fit. The determination that a dry wash is a wetland immediately 
devalues that land and infringes on the right of an individual 
to use his land.
    Numerous State and local permits in regulations govern as 
appropriate the development of these properties. The decision 
on how to use these resources most appropriately belongs at the 
State and local levels of Government, where land use and 
community planning decisions belong.
    For those who might argue that this is just those property 
rights people being paranoid, we have heard that over and over 
again, here is a quote from a letter that EPA Region IX 
recently sent to the area Corps office, arguing that more 
Federal intrusion was needed to develop projects that have the 
support of the local communities in the State in which they are 
planned: ``Through our permitting programs, the Federal 
Government is playing a central role [in this development].'' 
It is not the right or the responsibility of the Federal 
Government to play a central role in any development. How we 
define waters of the United States is critical to protect the 
rights of citizens, local Governments and States to regulate 
their lands.
    I hope the EPA and the corps will issue new definitions 
consistent with the Rapanos/Carabell decision that fully 
accounts for the constitutional limitations.
    And I would like to say, we will have a witness on the 
second panel from Oklahoma who is very familiar with some of 
the problems that we have out there. We have, I say to my 
fellow Senators, one county called Kingfisher County in 
Oklahoma, very arid county. It is very rare that there is any 
water. In fact, I don't think any wetlands really exist there. 
I can remember during a town hall meeting there, one of the 
farmers who had 360 acres said that they had declared a problem 
with an acre and a half which destroyed the value of his entire 
property.
    And I have also felt, and I know that this view is not 
enjoyed by other members of this committee, or by many members 
of this committee, that having served on the local level of 
Government, having been a private property owner, having been 
on the State level, I have always felt that decisions made 
closer to the people are the best decisions. And that is 
consistent with my feelings about these court decisions and 
about the property rights involved in today's hearing.
    I would ask unanimous consent, Mr. Chairman, I have an 
article from the Environmental Law Institute which gives an 
excellent history of the definition of navigable waters. I ask 
unanimous consent that it be inserted into the record at the 
conclusion of my remarks. Senator Chafee. Without objection, so 
ordered.
    [The referenced article can be found on page 124.]
    [The prepared statement of Senator Inhofe follows:]

       Statement of Hon. James M. Inhofe, U.S. Senator from the 
                           State of Oklahoma

    First, I want to thank Chairman Chafee for holding this 
subcommittee hearing on the effects of the recent Supreme Court 
decisions. Federal authority to regulate discharges into ``waters of 
the U.S.'' rests on the Constitution's Commerce Clause. The discharge 
must in some way impact interstate navigable waters. Many have sought 
to broaden this authority in the name of protecting the environment. 
However well-intentioned they may be, those who seek to expand Federal 
jurisdiction must do so within the bounds of the Constitution.
    We have wrestled unnecessarily with how to define the point at 
which the corps and EPA exceed not just Congressional intent but 
Constitutional limitations since passage of the Act in 1972. In its 
most recent decisions on the matter, the Supreme Court has clearly 
sought to rein in the corps and narrow Federal jurisdiction. In the 
2001 SWANCC (pronounced SWANK) decision, the Court struck down the 
corps' jurisdiction over nonnavigable, isolated, intrastate wetlands. 
However, the corps and EPA failed to issue new regulations reflecting 
the corps decision instead pursuing case-by-case analyses for these 
areas.
    In June of this year, the Court again visited the question of where 
the limits on Federal control over local land use decisions lie. While 
the Court did not go as far as I believe it should have, in its Rapanos 
decision, the Court ruled that the corps had overstepped its authority 
by regulating areas as wetlands over which it has no jurisdiction. The 
plurality issued a strong defense of the Constitution. Justice Kennedy 
agreed that the Corps had overreached and sent the case back to the 
sixth circuit for rehearing. In doing so, Justice Kennedy stated, 
``[the dissent] concludes that the ambiguity in the phrase navigable 
waters' allows the corps to construe the statute as reaching all non-
isolated wetlands'. . .  This, though, seems incorrect.''
    The Clean Water Act in addition to protecting navigable waters also 
protects the rights of the States to regulate and oversee waters within 
their borders. State and local Governments are fully able to step in 
and protect these waterbodies as they see fit. Indeed, in most cases 
this is the most appropriate means of protecting these areas. There are 
State and local environmental regulatory programs for isolated waters 
in 35 States. While many would argue that these are lacking resources, 
States have not stepped up to protect these areas because they have not 
needed to. They have yielded their authority to a Federal bureaucracy 
all too eager to expand its power to regulate local land use. This 
trend must be reversed.
    Most of these intrastate, nonnavigable areas are on private 
property. Behind me are some pictures of these intrastate nonnavigable 
areas. I say areas because you will notice that most of them are dry. 
The Constitution protects the right of the property owner to develop 
that property as he sees fit. The determination that a dry wash is a 
wetland immediately devalues that the land and infringes on the right 
of the individual to use his land. Numerous State and local permits and 
regulations govern, as appropriate, the development of these 
properties. The decision on how to use these resources most 
appropriately belongs at the State and local levels of Government where 
land use and community planning decisions belong.
    For those who might argue, that this is just those property rights 
people being paranoid, here is a quote from a letter that EPA Region 9 
recently sent to the area corps office arguing that more Federal 
intrusion was needed into development projects that have the support of 
the local communities and the State in which they are planned, 
``Through our permitting programs, the Federal Government is playing a 
central role [in this development].'' It is not the right or 
responsibility of the Federal Government to play a central role in any 
development. How we define ``waters of the U.S.'' is critical to 
protecting the rights of citizens, Governments and States to regulate 
the use of their lands. I hope the EPA and the corps will issue a new 
definition consistent with the Raplocal Govanos/Carabel decision that 
fully accounts for the constitutional limitations on their authority.

    Senator Chafee. Senator Jeffords.

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

    Senator Jeffords. Mr. Chairman, I am pleased to be here 
today at this oversight hearing evaluating the implications of 
the Rapanos/Carabell Supreme Court decision on the jurisdiction 
of the Clean Water Act.
    The Clean Water Act was passed in 1972 to restore and 
maintain the chemical, physical and biological integrity of the 
Nation's waters. It was a landmark statute that completely 
overhauled the Nation's clean water programs. We have made 
significant progress in cleaning up our waters, but we have 
more to do.
    Just a few months ago, the EPA issued its first assessment 
of the water quality in streams nationwide that are too shallow 
to support boat traffic, and found that 42 percent of them are 
in poor condition. In the northeast, 51 percent of these 
streams, many of which are fantastic fishing spots, are in poor 
condition.
    Upon hearing these numbers, my natural reaction is, let's 
take action and help these waters recover. I am concerned that 
this Court decision, which I feel is completely contrary to the 
Congressional intent, would take us in the opposite direction, 
limiting clean water protections and leading to dirtier water.
    For example, in January the EPA stated in a letter that 
about 59 percent of the length of shallow streams in this 
Country flow only part of the year. This is one of the 
categories of waters that could be excluded from the Clean 
Water Act protections under some interpretations of the Supreme 
Court decision. I ask that the EPA's letter be entered into the 
record at this point.
    Senator Chafee. Without objection, so ordered.
    [The referenced letter can be found on page 48.]
    Senator Jeffords. This test would ignore the fact that it 
is patently obvious to any observer that the water flows 
downstream from small bodies of water to larger ones. Sometimes 
it rains, sometimes it doesn't. Just last week, it rained about 
2 inches in the Phoenix, AZ area, causing widespread flooding. 
Some streams in that region recorded a one foot increase in 
flow over the course of 2 hours. I am certain that any 
polluting sitting in those stream beds was washed downstream. 
This example shows that even if a shallow stream flows only 
part of the year, pollution will still make it downstream.
    With regard to the Administration planned response in this 
Court decision, I have a few concerns. The EPA depends heavily 
on the President's goal of ``overall gain'' in wetlands to give 
reassurance that wetlands will remain protected. Today, I will 
be sending a letter to the President with several of my 
colleagues asking some detailed questions about the program. 
For instance, overall gain is a two-side question. You measure 
gains and you measure losses. Then you balance the equation and 
figure out how you are doing. I am concerned that wetland 
losses may not be included in your calculations, providing an 
overall optimistic view of the status of threatened waters 
nationwide.
    Second, I am concerned that the Administration will issue 
guidance in response to this case that is overly broad, just as 
they have done in response to previous Supreme Court decisions. 
Mr. Chairman, in 1977, my predecessor, Senator Bob Stafford of 
Vermont, stated, ``The 1972 Federal Water Pollution Act 
exercises comprehensive jurisdiction over the Nation's waters 
to control pollution.'' It is a simple concept that Congress 
clearly needs to clarify with legislation in the wake of the 
Supreme Court decision.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Jeffords follows:]

     Statement of Hon. Senator Jim Jeffords, U.S. Senator from the 
                            State of Vermont

    Mr. Chairman, I am pleased to be here today at this oversight 
hearing evaluating the implications of the Rapanos Carabell Supreme 
Court Decision on the jurisdiction of the Clean Water Act.
    The Clean Water Act was passed in 1972 to restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters. It 
was a landmark statute that completely overhauled the nation's clean 
water programs.
    We have made significant progress in cleaning up our waters, but we 
have more work to do. Just a few months ago, the EPA issued its first 
assessment of the water quality in streams nationwide that are too 
shallow to support boat traffic and found that 42 percent of them are 
in poor condition. In the northeast, 51 percent of these streams, many 
of which are fantastic fishing spots, are in poor condition.
    Upon hearing these numbers, my natural reaction is, let's take 
action and help these waters recover. I am concerned that this Court 
decision, which I feel is completely contrary to Congressional intent, 
could take us in the opposite direction, limiting clean water 
protections and leading to dirtier water.
    For example, last January, the EPA stated in a letter that about 59 
percent of the length of shallow streams in this country flow only part 
of the year. This is one of the categories of waters that could be 
excluded from Clean Water Act protections under some interpretations of 
the Supreme Court decision. I ask that the EPA's letter be entered into 
the record.
    This test would ignore the fact that is patently obvious to any 
observer that water flows downstream from small bodies of water to 
larger ones. Sometimes it rains, sometimes it doesn't.
    Just last week it rained about two inches in the Phoenix, AZ., 
area, causing widespread flooding. Some streams in that region recorded 
a one-foot increase in flow over the course of only a few hours. I am 
certain that any pollution sitting in those streambeds was washed 
downstream. This example shows that even if a shallow stream flows only 
part of the year, pollution will still make its way downstream.
    With regard to the Administration's planned response to this Court 
decision, I have a few concerns. The EPA depends heavily on the 
President's goal of an ``overall gain'' in wetlands to give reassurance 
that wetlands will remain protected.
    Today I will be sending a letter to the President with several of 
my colleagues asking some detailed questions about the program. 
``Overall gain'' is a two-sided question you measure gains and you 
measure losses, then you balance that equation and figure out how 
you're doing. I am concerned that wetland losses may not be included in 
your calculations, providing an overly optimistic view of the status of 
these threatened waters nationwide.
    Second, I am concerned that the Administration will issue guidance 
in response to this case that is overly broad, just as they have done 
in response to previous Supreme Court decisions.
    Mr. Chairman, in 1977 my predecessor, Senator Bob Stafford of 
Vermont, stated, ``The 1972 Federal Water Pollution Control Act 
exercised comprehensive jurisdiction over the Nation's waters to 
control pollution.''
    It is a simple concept that Congress clearly needs to clarify with 
legislation in the wake of this Supreme Court decision.

    Senator Chafee. Thank you, Senator Jeffords.
    Senator Murkowski.

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

    Senator Murkowski. Thank you, Mr. Chairman. Thank you for 
holding the hearing today.
    For about 30 years now, the courts have wrestled with how 
we define waters of the United States, and for about 30 years 
or more, they have produced different and certainly conflicting 
opinions. When the Supreme Court heard and decided the SWANCC 
case, the Solid Waste Agency of Northern Cook County, I think 
it raised hopes that the country would finally get some clear 
guidance. But that guidance has not been forthcoming, either 
from the Court or from the agencies or from Congress.
    The SWANCC decision did provide some rays of light. First, 
it indicated that not all wetlands can be considered navigable 
waters within the meaning of the Act. I guess I look at that 
and say, it is so self-evident that I find it amazing that 
there would be those that would argue otherwise.
    Secondly, it suggested that in order to be protected, a 
wetland must have a significant nexus with navigable waters. I 
think that too, seems self-evident. But the Court was reluctant 
to take that step of defining the term ``significant nexus'' 
and it was this test that is left for either the Agency or for 
Congress.
    As far as the Clean Water Act itself, I don't think that 
there is anything at fault with the Act. The Act itself is 
clear. What is less clear, what is muddy is the implementation. 
This suggests to me that the Administration should take steps 
to clarify it.
    When we talk about the issue of how we define our waters of 
the United States and wetlands, this clearly affects all 
States, and we are hearing that from the committee members 
today. But it has significant impact to the State of Alaska. 
First, in the State of Alaska, we have some 174 million acres 
of wetlands. This is more than all of the other States 
combined.
    Secondly, much of those wetlands are vastly different in 
character than wetlands in the other States, many of our 
wetlands are frozen for nine or so months out of the year, and 
they are underlain by a layer of permafrost. So their 
hydrologic functions are completely different than what you 
might see in other parts of the country.
    Now, I'm certainly not suggesting these wetlands are 
without value, but that their value may stem from different 
considerations than those perhaps envisioned by the Clean Water 
Act, and in that vein can't be appropriately addressed by that 
Act. I want to make sure people understand, I am looking at 
this and suggesting that one size perhaps does not fit all. And 
rather than attempt to force all wetlands into a mold for which 
they are not well suited, it seems better to seek to clarify 
their status, which can best be done by administrative 
rulemaking.
    A majority of the Supreme Court justices appear to agree. 
Justice Breyer's summary calls for regulations to be written 
speedily. Chief Justice Roberts pointed out that the failure to 
establish a rule in response to the SWANCC case helped ensure 
the result of the most recent cases. The Agency has had ample 
opportunity to act, and indeed the Corps and the EPA began the 
process after the SWANCC case, but unfortunately, by the 
beginning of 2004, that effort was abandoned, which leaves us 
now in a state of limbo.
    In April of 2003, the State of Alaska provided some very 
extensive comments for the previous rulemaking attempt. And 
these comments continue to be of value, as they clearly explain 
why not all wetlands are equal. In addition, in January of 
2004, after that effort was abandoned, the State registered its 
dismay in a letter in which the Governor noted that asserting 
Clean Water Act jurisdiction over all wetlands without 
limitation would lead to a patchwork of conflicting court 
decisions and create uncertainty for all those involved, which 
is precisely our current situation.
    Mr. Chairman, I do have copies of both of these documents, 
the April 2003 comments from the State, as well as the January 
2004, which I would like to have included as part of the record 
for this hearing.
    Senator Chafee. Without objection, so ordered.
    [The referenced documents can be found on page 111.]
    Senator Murkowski. Mr. Chairman, I have one more paper 
prepared by the State which again argues that this matter 
demands a clear and consistent approach and that rulemaking is 
the appropriate measure to take.
    Senator Chafee. Without objection, that will be included 
also.
    [The referenced paper can be found on page 118.]
    Senator Murkowski. So with that, Mr. Chairman, again I 
thank you for conducting the hearing this afternoon and look 
forward to the comments of the witnesses.
    [The prepared statement of Senator Murkowski follows:]

  Statement of Hon. Senator Lisa A. Murkowski, U.S. Senator from the 
                            State of Alaska

    Mr. Chairman, I want to thank you for holding this hearing. The 
country is deeply divided on the issue of appropriate wetlands 
protections, and the gap isn't getting any narrower. For 30 years or 
more, the courts have wrestled with how to define ``waters of the 
United States.'' For 40 years or more, they have produced different and 
conflicting opinions.
    When the Supreme Court heard and decided the Solid Waste Agency of 
Northern Cook County (SWANCC) case, it raised hopes that the country 
would finally get some clear guidance. Unfortunately, such guidance has 
not been forthcoming, either from the court, or from the agencies, or 
from Congress.
    The SWANCC decision did provide some rays of light. First, it 
indicated that not all wetlands can be considered navigable waters 
within the meaning of the Act. That is so self-evident it is mind-
boggling to think there are those who argue otherwise.
    Second, it suggested that in order to be protected, a wetland must 
have a ``significant nexus'' with navigable waters. That too, seems 
self evident.
    However, the court was reluctant to take the activist step of 
defining the term ``significant nexus.'' That task is left either for 
the Agency or for Congress.
    Mr. Chairman, there are times when allowing another entity make the 
first move can be productive, and I believe this is one of those times.
    I don't think there is anything at fault with the Clean Water Act 
itself. The Act is clear it is the implementation that is muddy. That 
suggests to me that the Administration should take steps to clarify it.
    This issue affects every State, but Alaska more than most, for two 
reasons: first, because Alaska has 174 million acres of wetlands, more 
than all the other States combined; and second, because much of those 
wetlands are vastly different in character than wetlands in other 
States frozen 9 months of the year and underlain by permafrost, so 
their hydrologic functions are completely different.
    Even the most casual observer if willing to look at the science of 
wetlands management rather than the politics of it, must accept the 
idea that not all wetlands serve the same function, nor are they 
equally important in cleaning and conditioning water resources, nor are 
they equally important in mitigating storm damage.
    Make no mistake I am not suggesting these wetlands are without 
value, but that their value may stem from different considerations than 
those envisioned by the Clean Water Act, and cannot therefore be 
appropriately addressed by that Act. One size does NOT fit all.
    Some people seem to believe that when it comes to wetland 
protection, the Clean Water Act is the only option. But that is not 
true.
    In fact, Alaska's wetlands would be protected without Federal law, 
because Alaska's Constitution mandates that its resources be managed 
under sustainable use principles, and the resulting pollution control 
statutes are among the nation's strictest. In many ways that is purely 
self-interest; our Constitution was drafted in response to decades of 
Federal mismanagement, and we knew that keeping valuable resources such 
as fish and game populations at useful, productive levels meant 
conserving their habitats, as well.
    Rather than attempt to force all wetlands into a mold for which 
they are not well-suited, it seems better to seek to clarify their 
status, which can best be done by administrative rulemaking. A majority 
of Supreme Court justices appear to agree. Justice Breyer's summary 
calls for regulations to be written ``speedily.'' Chief Justice Roberts 
pointed out that the failure to establish a rule in response to the 
SWANCC case helped ensure the result of the most recent cases.
    The agency has had ample opportunity to act. Indeed, the Corps and 
the EPA began the process after the SWANCC case. Unfortunately, by the 
beginning of 2004, the effort was abandoned, leaving behind the limbo 
in which we now find ourselves.
    In April, 2003, the State of Alaska provided extensive comments for 
the previous rulemaking attempt. Those comments continue to be of 
value, as they clearly explain why not all wetlands are equal. In 
addition, in January of 2004, after the effort was abandoned, the State 
registered its dismay in a letter in which the Governor noted that 
asserting Clean Water Act jurisdiction over all wetlands without 
limitation would lead to a ``patchwork'' of conflicting court decisions 
and create uncertainties for all those involved precisely our current 
situation.
    Mr. Chairman, if there is no objection, I would like to have both 
those documents added to the record for this hearing.
    More recently, the State prepared yet another paper addressing this 
issue in the context of the most recent decision. Once again, it argues 
that this matter is demands a clear and consistent approach and that 
rulemaking is the way to achieve it.
    I must agree and would like to submit this paper for the record as 
well.
    Thank you, Mr. Chairman. I look forward to hearing from our 
witnesses, and hope very much they will support the completion of a 
sensible and comprehensive rulemaking effort.

    Senator Chafee. Thank you, Senator Murkowski.
    Senator Lautenberg.

  OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR 
                  FROM THE STATE OF NEW JERSEY

    Senator Lautenberg. Thank you, Mr. Chairman.
    Mr. Chairman, I listened with interest and not a lot of 
surprise, but some disappointment when we hear that the value 
of properties looms as the largest consideration. I think there 
is something for the value of lives that has to be included in 
our review and our commentary.
    For more than three decades, the Clean Water Act has 
improved the lives of every American. It has protected our 
Nation's rivers, lakes, wetlands, streams and other waters. But 
now in the wake of disturbing legal reasoning by Justice Scalia 
and three of his colleagues on the Supreme Court, the 
protections of the Clean Water Act are in serious danger.
    Since 1972, the Clean Water Act has prohibited the 
discharge of pollution from point sources into our Nation's 
waters without a permit. But in the recent Rapanos decision, 
Justice Scalia, joined by Justices Thomas, Roberts and Alito, 
attempted to invent two new exceptions to the Clean Water Act 
that would endanger thousands of streams and wetlands. First, 
they asserted that only streams that run continuously, year-
round, are protected under the Clean Water Act. Based upon EPA 
estimates, this would leave almost 60 percent of our Nation's 
streams with no protection under the Clean Water Act.
    Secondly, Justice Scalia's opinion asserted that only those 
wetlands that have a continuous surface flow of water into the 
streams they adjoin are protected under the Act. This 
interpretation would similarly exclude tens of millions of 
acres of wetlands from Federal protection. If this 
interpretation of the Clean Water Act were actually to prevail, 
streams and wetlands across the country would suddenly lose 
their Federal protection. These waters could be left open to 
unpermitted dumping of industrial pollution, sewage waste and 
to dredging and filling.
    We hear about the fact that State supervision can take care 
of many of these things. But when they flow into streams, those 
streams cross touch many States on their way to their final 
destination. To ignore the fact that the contamination could be 
transmitted so quickly and so easily I think is dangerous. The 
results would be devastating: more pollution downstream, 
significant loss of wildlife habitat, increased flooding and 
great drought in the final analysis.
    This weakening of the Clean Water Act would affect the 
quality of the water we drink and the rivers, lakes and streams 
where our children fish and swim. The only good news about 
Justice Scalia's opinion is that he was only able to get three 
of his colleagues to agree with it. Four Justices dissented, 
and Justice Kennedy took a middle-ground approach. But he 
sharply criticized Justice Scalia's opinion, saying that it is 
``without support in the language and purposes of the Act'' or 
in our case interpreting it.
    Now, I will be interested to hear from today's witnesses 
how EPA and the Army Corps plan to continue protecting the 
Nation's wetlands, streams and other waters in light of the 
recent Supreme Court decision. Even though a majority of 
Justices did not agree with Justice Scalia, the Rapanos case is 
an open invitation for polluting industries to keep using the 
courts to reduce the number of waters protected by the Clean 
Water Act.
    We have got to act, Congress has got to act to reaffirm the 
historic scope of the Clean Water Act. Senator Feingold's Clean 
Water Authority Restoration Act, S. 912, of which I am an 
original co-sponsor, would do just that. I hope we can have a 
hearing on the Feingold bill as soon as possible.
    Mr. Chairman, I look forward to hearing from today's 
witnesses.
    [The prepared statement of Senator Lautenberg follows:]

 Statement of Hon. Senator Frank R. Lautenberg, U.S. Senator from the 
                          State of New Jersey

    Mr. Chairman, for more than three decades, the Clean Water Act has 
improved the lives of every American. It has protected our Nation's 
rivers, lakes, wetlands, streams and other waters. But now, in the wake 
of disturbing legal reasoning by Justice Scalia and three of his 
colleagues on the Supreme Court, the protections of the Clean Water Act 
are in danger.
    Since 1972 the Clean Water Act has prohibited the discharge of 
pollution from ``point sources'' into our Nation's waters without a 
permit. But in the recent Rapanos decision, Justice Scalia, joined by 
Justices Thomas, Roberts and Alito, attempted to invent two new 
exceptions to the Clean Water Act that would endanger thousands of 
streams and wetlands.
    First they asserted that only streams that run continuously year-
round are protected under the Clean Water Act. Based upon EPA 
estimates, this would leave almost sixty percent of our Nation's 
streams with no protections under the Clean Water Act. Second, Justice 
Scalia's opinion asserted that only those wetlands that have a 
continuous surface flow of waters into the streams they join are 
protected under the Act. This interpretation would similarly exclude 
tens of millions of acres of wetlands from Federal protections.
    If this interpretation of the Clean Water Act were actually to 
prevail, streams and wetlands across the country would suddenly lose 
Federal protections. These waters could be left open to unpermitted 
dumping of industrial pollution, sewage, and waste, and to dredging and 
filling. The results would be devastating more pollution downstream, 
significant loss of wildlife habitat, increased flooding and greater 
drought.
    This weakening of the Clean Water Act would affect the quality of 
the water we drink, and the rivers, lakes and streams where our 
children fish and swim. The only good news about Justice Scalia's 
opinion was that he was only able to get three of his colleagues to 
agree with it. Four justices dissented, and Justice Kennedy took a 
middle ground approach. But he sharply criticized Justice Scalia's 
opinion saying that it is ``without support in the language and 
purposes of the Act or in our cases interpreting it.''
    I will be interested to hear from today's witnesses how EPA and the 
Army Corps plan to continue protecting the nation's wetlands, streams 
and other waters in light of the recent Supreme Court decision. Even 
though a majority of Justices did not agree with Justice Scalia, the 
Rapanos case is an open invitation for polluting industries to keep 
using the courts to reduce the number of waters protected by the Clean 
Water Act.
    Congress should act to reaffirm the historic scope of the Clean 
Water Act. Senator Feingold's Clean Water Authority Restoration Act (S. 
912), of which I am an original co-sponsor, would do just that. I hope 
we can have a hearing on the Feingold bill as soon as possible.
    Mr. Chairman, I look forward to hearing from today's witnesses.

    Senator Chafee. Thank you, Senator Lautenberg.
    I do have a statement by Senator Feingold which I would 
like to submit for the record. I do anticipate a hearing on any 
legislation that might be proposed at another date.
    [The prepared statement of Senator Feingold follows:]

        Statement of Hon. Russ Feingold, U.S. Senator from the 
                           State of Wisconsin

    I appreciate the leadership of Senator Chafee and Senator Clinton 
in holding today's subcommittee hearing on interpreting the effect of 
the U.S. Supreme Court's recent decision in the joint cases of Rapanos 
v. United States and Carabell v. U.S. Army Corps of Engineers on the 
waters of the United States. I also appreciate the offer from Senator 
Chafee's office to work to hold a subsequent hearing on legislative 
responses in the wake of the most recent Supreme Court decision. As the 
lead sponsor of S. 912, the Clean Water Authority Restoration Act, I 
look forward to testifying about the issues surrounding, and the need 
for, legislation that will ensure that the waters of our country are 
protected as originally intended by the Clean Water Act. I believe that 
this legislation is now needed more than ever and I appreciate the 
willingness of the subcommittee to press ahead on this most important 
issue.
    When the Clean Water Act was passed in 1972, its stated purpose was 
to ``restore and maintain the chemical, physical and biological 
integrity of the Nation's waters.'' For most of the past 30 years, the 
Clean Water Act has been interpreted to provide protection for the 
myriad waters that enhance and contribute to human health and well-
being, the economy, and the environment. Unfortunately, over the past 
few years, the fundamental purpose of the Clean Water Act has been 
questioned and jeopardized by Supreme Court decisions.
    In the 2001 case Solid Waste Agency of Northern Cook County v. Army 
Corps of Engineers (SWANCC), the U.S. Supreme Court limited the 
authority of Federal agencies to extend Clean Water Act protections to 
non-navigable, intrastate, ``isolated'' waters based solely on their 
use by migratory birds. Now, with the Rapanos/Carabell decision, four 
Justices indicated that they believe that the Clean Water Act applies 
only to ``permanent, standing or continuously flowing bodies of 
water.'' Thus, the American public now knows that the Supreme Court is 
one vote away from a majority that would jeopardize roughly 60 percent 
of the Nation's rivers and streams and all of the wetlands adjacent to 
them. And, to put these bodies of water into perspective, according to 
the Environmental Protection Agency 110 million Americans get their 
drinking water from sources that include the very intermittent and 
ephemeral bodies of water that the four justices said were not 
protected by the Clean Water Act. Fortunately, five Justices rejected 
this radical rewrite of the Act and that opinion does not have the 
force of law. Nonetheless, the waters protected by the Clean Water Act 
for the last three decades are still in jeopardy.
    While I hope today's hearing delves in depth into the recent cases, 
it is clear to me that Congress must act and that time is most 
definitely of the essence. Every single day that goes by, streams and 
wetlands are lost. For example, following the SWANCC decision, the 
relevant agencies have been issuing approximately 400 no jurisdiction' 
determinations a quarter 1,600 per year. While some of these may have 
merit, I worry that many of them do not and that they represent a loss 
for the water resources that all citizens of our country depend upon. I 
also am concerned about what will happen based on the most recent 
decision, and unfortunately, I need not look far for an indication of 
what will come. For example, a fifth circuit district court judge, in a 
case looking at an oil spill, essentially discarded Justice Kennedy's 
opinion in Rapanos/Carabell, saying that, ``This test [the significant 
nexus] test leaves no guidance on how to implement its vague, 
subjective centerpiece.'' The fifth district judge went on, ``Because 
Justice Kennedy failed to elaborate on the significant nexus' required, 
this Court will look to the prior reasoning of this circuit.'' The 
judge then relied heavily on Justice Scalia's opinion in the Rapanos/
Carabell decision to rule that the Federal Government had no ability 
under the Clean Water Act to take action against a major oil company 
for spilling oil into an intermittent stream.
    Enough is enough. Congress must provide the needed leadership to 
step in and clarify the intent of the Clean Water Act. Such action must 
ensure that all waters of the United States, waters that are valuable 
for drinking, fishing, swimming, and a host of other economically vital 
uses not just navigability are protected. I look forward to working 
with the members of the subcommittee to pass such vital legislation.

    Senator Chafee. And now we will proceed to our first panel. 
We have the Honorable Ben Grumbles, Assistant Administrator for 
the EPA Office of Water; the Honorable John Paul Woodley, Jr., 
Assistant Secretary for Civil Works for the U.S. Department of 
the Army; and Mr. John Cruden, Deputy Assistant Attorney 
General of the Environment and Natural Resources Division of 
the U.S. Department of Justice.
    Welcome, and let's start with Mr. Grumbles.

  STATEMENT OF THE HONORABLE BENJAMIN H. GRUMBLES, ASSISTANT 
ADMINISTRATOR FOR WATER, UNITED STATES ENVIRONMENTAL PROTECTION 
AGENCY; AND JOHN PAUL WOODLEY, JR., ASSISTANT SECRETARY OF THE 
          ARMY FOR CIVIL WORKS, DEPARTMENT OF THE ARMY

    Mr. Grumbles. Thank you, Mr. Chairman.
    Mr. Chairman, this Administration is pro-wetlands. This 
Administration is pro-wetlands, because we recognize wetlands 
are at the core of this country's rich cultural heritage and 
are central to its prosperity and future. The Administration is 
supportive of wetlands programs, restoring and protecting them, 
because we recognize their central importance.
    The President reaffirmed the no net loss goal and has also 
stated a bold new goal for this country of gaining wetlands, 
moving beyond just the no net loss goal. The no net loss goal 
of the Administration was reaffirmed in 2002, when it also 
established a multi-agency, 17 step mitigation action plan to 
make progress on compensatory mitigation and restoring wetlands 
that were unavoidably lost due to development activities.
    Even more importantly, on Earth Day 2004, the President 
established this new goal of gaining wetlands, of increasing 
the quality and quantity of wetlands throughout the country and 
tasks the Federal agencies specifically with the goal of using 
the tools of cooperative conservation to restore, create, 
improve and protect 3 million acres by 2009.
    Since Earth Day 2004, the Administration has been taking a 
variety of positive, pro-wetland steps to make progress on 
those ambitious goals. One of the things I would like to 
mention is that in the President's budget request, fiscal year 
2007 request, the Administration is requesting $403 million for 
the USDA's Wetlands Reserve program. That is over $150 million 
above and beyond the previous request. It will lead to a total 
of 250,000 acres in the Wetlands Reserve program.
    There are other activities beyond the budget, but 
particularly in the 2007 budget, Assistant Secretary Woodley 
will describe the regulatory program for the Corps of 
Engineers, implementing Section 404 and the importance of those 
resources in that program to help protect and restore wetlands. 
U.S. EPA has a variety of programs as well to advance the goals 
of the President on wetlands as well as the goal of the Clean 
Water Act, which Senator Clinton and others on the panel have 
stated. It is critically important, and that goal is to restore 
and maintain the chemical, physical and biological integrity of 
the Nation's waters. Because we recognize that wetlands are a 
central part of that effort, we are using the tools we have 
under cooperative conservation, as well as under the Clean 
Water Act.
    EPA is working closely with the Army Corps of Engineers, 
because our two agencies share the Clean Water Act Section 404 
program on several important initiatives and efforts. One of 
them I want to mention is the proposed wetlands mitigation 
rule, which was proposed earlier this year. This is a science-
based, results-oriented rule that will help us use market-based 
approaches to continue to make progress toward the goal of no 
net loss of wetlands throughout the country.
    We are also working closely in multiple Agency efforts to 
heed the advice of the National Academy of Sciences. When they 
issued a report several years ago, they said more work needs to 
be done on the science of wetlands restoration and protection, 
to ensure that we do continue to make progress towards that no 
net loss goal. We are fulfilling that objective, working on 
that as well as with the mitigation rule.
    These are all important activities, they are important 
steps recognizing cooperative conservation plus the regulatory 
tools and non-regulatory tools under the Clean Water Act are 
all important to help us meet the President's objectives and 
goals for wetlands protection.
    The purpose of this hearing, this extremely important 
hearing, is to focus on the decision, the Rapanos/Carabell 
decision. Immediately after the decision, the EPA and the Army 
Corps sent field guidance to our staffs, telling them, continue 
to carry out your programs, carry out authorities and programs 
under the Clean Water Act. Defer for a while on making any new 
interpretations of this new decision, and on changing 
jurisdictional delineation procedures, so that we could work on 
interim guidance. We are now working on interim guidance, 
developing it. We hope to get it issued as soon as possible. It 
will be an important tool to help us to continue to use the 
Clean Water Act as a valuable tool. The focus of that guidance 
will be to add clarity and consistency so that we can continue 
to use tools available under the Clean Water Act.
    In closing, Mr. Chairman, I would just like to say that all 
wetlands have value. The question is what tools, what 
authorities, what programs and at what level of Government are 
available to help continue to advance in an effective, 
efficient and equitable manner these wetlands protection and 
restoration goals. It will take all of us working together, all 
of us working together, to achieve that. We look forward to 
working with you.
    At this point, I would like to turn it over to Assistant 
Secretary Woodley. Mr. Chairman, thank you.
    Senator Chafee. Thank you, Mr. Grumbles. Mr. Woodley, 
welcome.
    Mr. Woodley. Thank you, Senator. It is wonderful to see you 
again, and also the members of the committee and subcommittee.
    I certainly associate myself with my very distinguished 
colleague's remarks. Congress enacted the Clean Water Act, as 
has been indicated, to restore and maintain the physical, 
chemical and biological integrity of the Nation's waters, 
including wetlands, through programs such as Section 404, 
administered by my Agency. That section regulates discharges of 
dredged or fill material, helping to protect wetlands and 
aquatic environments, of which they are an integral part, and 
maintain the environmental and economic benefits provided by 
these valuable natural resources.
    The Bush administration has shown its support for the 
continuing protection of wetlands by proposing to increase 
funding for the Corps of Engineers' regulatory budget from $138 
million in fiscal year 2003 to $173 million proposed in fiscal 
year 2007, which amounts to about a 25 percent increase. I 
encourage members, particularly those of you who may know 
appropriators, to examine that request that we have pending in 
fiscal year 2007. The corps is responsible for the day to day 
administration, including reviewing permit applications and 
deciding whether to issue or deny permits. In that context, we 
make more than 100,000 jurisdictional determinations and 
provide over 80,000 written authorizations in a given year. The 
data do indicate that we are achieving our goal of a no net 
loss of wetlands in the 404 regulatory program.
    Mr. Grumbles has described some of the actions we have 
taken to improve the program in recent years, in conjunction 
with our colleagues at EPA. But certainly should not be 
neglected the efforts that the corps has underway pursuant to 
its aquatic ecosystem restoration mission, which includes many 
projects that have restored and are restoring hundreds of acres 
of wetlands and streams every year. Indeed, Mr. Chairman, I 
hope to see you in Rhode Island later this year at the Lonsdale 
Marsh project, which is restoring some very valuable wetlands 
in the State of Rhode Island. These actions, as well as others, 
will enable us to better protect and improve these resources 
and tell us where and how to restore, enhance and protect these 
important resources.
    We are now working together with our colleagues at the EPA 
to understand and implement the June 2006 Supreme Court 
decision that has been described here today. The judgment of 
the Court was to vacate and remand these two cases for further 
proceedings. Those proceedings will be undertaken. In addition, 
the Court introduced different tests for evaluating and 
determining jurisdiction for tributaries to traditional 
navigable waters and their adjacent wetlands. These tests will 
have important implications for the administration of the Clean 
Water Act.
    As my colleague indicated, we have issued interim guidance 
that seeks to advise our subordinates in the field of their 
responsibilities under this ruling. Since that has been issued, 
we have been working very closely with our colleagues at the 
Department of Justice to interpret the decision, to arrive at 
an understanding of its legal implications and its impacts on 
the scope of the definition of waters of the United States 
protected under the Clean Water Act. We are now working on 
joint EPA/Corps of Engineers interim guidance to clarify our 
jurisdiction in light of these decisions, with the focus, of 
course, on the critical issue of defining the term 
``significant nexus'' as used by Justice Kennedy in applying 
that rule to the field. We certainly hope that this guidance 
will move us beyond our disagreements over how widely we assert 
jurisdiction and having an approach that is not about a larger 
or smaller jurisdiction, but about better results using the 
tools that we have to provide clarity for the public and ensure 
consistency and predictability in our jurisdictional 
determinations nationwide.
    Thank you very much for the opportunity to address you 
today.
    Senator Chafee. Thank you very much, Mr. Woodley. Mr. 
Cruden, welcome.

STATEMENT OF JOHN C. CRUDEN, DEPUTY ASSISTANT ATTORNEY GENERAL, 
   ENVIRONMENT AND NATURAL RESOURCES DIVISION, UNITED STATES 
                     DEPARTMENT OF JUSTICE

    Mr. Cruden. Chairman Chafee and other members of the 
Committee and Subcommittee, thank you for inviting me here to 
talk about an extremely important case right now. I am a Deputy 
in the Environment and Natural Resources Division, and as most 
of you know, that is one of the litigating divisions of the 
Department of Justice. We have responsibility for over 70 
statutes in the environment and natural resources arena, and we 
appear in court representing virtually every Federal agency.
    One of the statutes that we have responsibility for is the 
subject of this hearing today, which is the Clean Water Act. 
And one part of that statute is what we are narrowly addressing 
today, and that is what I refer to as the 404 program, which is 
our wetlands protection area.
    As has already been said, Federal wetlands took on 
significance with the Clean Water Act amendments of 1972 and 
1977, and the corps and EPA implemented those in regulations in 
1974, 1977 and 1986. There have been numerous decisions 
involving certainly the Clean Water Act, and more specifically 
wetlands law. But clearly the most important are the three most 
recent ones by the Supreme Court, which Senator Chafee has 
already mentioned: the unanimous Riverside Bayview decision in 
1985; the divided SWANCC decision in 2001; and now the 
splintered Rapanos decision that was just decided.
    When we are appearing in court, we go back to the statute 
to try to tell the court the significance of that statute. And 
we very often start with the goal of the Clean Water Act, which 
has already been stated as restoring and maintaining the 
chemical, physical and biological integrity of the Nation's 
waters. Specifically in wetland areas, the statute prohibits 
the discharge of a pollutant by any person without a permit. 
Discharge of a pollutant is further defined as the addition of 
a pollutant to navigable waters. And then navigable waters is 
defined as ``waters of the United States.'' So that is how we 
get to ``waters of the United States,'' through a series of 
definitions.
    The corps and EPA have promulgated regulations and they 
have substantially the same definition of ``waters of the 
United States,'' and that is what we have been applying in 
court. In Riverside Bayview, the Supreme Court held that the 
corps had acted reasonably in interpreting the Act to require 
permits for discharges of fill material into wetlands adjacent 
to waters of the United States. In SWANCC, however, the Supreme 
Court held that isolated, non-navigable intrastate waters did 
not become waters of the United States based on migratory bird 
usage.
    Now let's turn to Rapanos. Rapanos is actually two cases. 
The Supreme Court was once again reviewing the phrase, ``waters 
of the United States.'' In the first case, Rapanos, that was a 
developer who without a permit filled about 54 acres of 
wetlands that were adjacent to tributaries of navigable-in-fact 
water bodies.
    But there was another case. The second case, Carabell, 
involved a permit applicant who was denied authorization to 
fill wetlands that were physically proximate to, but they were 
divided by about a four-foot berm from, a navigable-in-fact 
water body, Lake St. Clair.
    The judgment of the Supreme Court was to vacate the 
decisions of the Sixth Circuit and remand both cases for 
further proceedings. There is no majority opinion. Instead, we 
have a plurality opinion of four Justices, a concurring opinion 
by Justice Kennedy and a dissent by four Justices. Chief 
Justice Roberts also wrote a separate concurring opinion to the 
plurality. Justice Breyer wrote a separate concurring opinion 
to the dissent.
    The plurality opinion authored by Justice Scalia concluded 
that the lower court should determine whether the ditches or 
drains near each wetland are waters in the ordinary sense, 
containing a relatively permanent flow, and if they are, 
whether the wetlands in question are adjacent to those waters 
in the sense of having a continuous surface connection.
    Justice Kennedy concurred in the judgment of the Court, but 
he has a separate and different test, concluding that the cases 
should be vacated and the test should be whether the specific 
wetlands at issue possess a significant nexus with navigable 
waters.
    It is a challenge to discern clarity in this particular 
case. I think Chief Justice Roberts in his concurring opinion 
said it best: ``It is unfortunate that no opinion commands a 
majority of the Court on precisely how to read Congress's 
limits on the reach of the Clean Water Act. Lower courts and 
regulated entities will now have to feel their way on a case-
by-case basis.'' Senators, that is what we have been doing 
since the time of this opinion. It would not surprise you to 
know that in many cases we sought more time from courts, so 
that we could coordinate with a lot of other people and work 
with the Environmental Protection Agency and the Corps of 
Engineers.
    In some cases we have had to take positions. We have 
already settled two cases. We have already filed a new case. 
And today, we are advising the Sixth Circuit in Rapanos and 
Carabell what we think the next step should be. We advised in 
both cases that we think that the test should be when you are 
applying the Rapanos and Carabell decision, that in order to 
determine ``waters of the United States,'' we ought to be able 
to meet either test, either the test of the plurality or the 
concurring test by Justice Kennedy.
    I look forward to your questions about in this very 
important decision, and I am pleased you are having this 
hearing. Thank you.
    Senator Chafee. Thank you very much, panelists, for your 
testimony. We will have a 5 minute round of questioning. Seeing 
how you ended up, Mr. Cruden, on some of the questions I wanted 
to ask, maybe I could just get some details. You are saying 
that you will apply both the plurality test, either the 
plurality test or the Kennedy test?
    Mr. Cruden. That is correct.
    Senator Chafee. But not both? Maybe you could give me a 
further description of how that will work.
    Mr. Cruden. We believe that the rule of law that comes out 
of this will in fact allow us to apply either test in a 
particular factual situation. I say that for three reasons. 
First of all, I believe that Chief Justice Roberts, in his 
concurring opinion, pretty much pushed us in that direction 
when he said lower courts and regulated entities will now have 
to feel their way on a case-by-case basis. He went on to say, 
this situation is certainly not unprecedented. And he cites two 
decisions, a Marks decision, which was an old obscenity 
decision, and a decision of Grutter v. Bollinger, which is an 
affirmative action case.
    In both of those decisions, they were also fragmented 
decisions. In the one case, the obscenity case, the Court 
applied the plurality opinion. In the other case, the 
affirmative action case, which goes back to the well-known 
Bakke decision, they applied the single opinion by Justice 
Powell. So I think that Justice Roberts pushes us in the 
direction of applying either one of the two tests.
    In the dissent, Justice Stevens says that ``I actually 
think the more appropriate test in the future would be either 
test as well.'' So we have that out of the opinion. And then 
frankly, I think there is just an element of common sense. If 
in fact we meet Justice Scalia's test, that probably means 
eight Justices would agree. If we meet Justice Kennedy's test, 
we probably would satisfy five Justices. Therefore I think 
going forward we will have to see what courts say in reaction 
to our proposal. But I do believe that we will have, we should 
have the ability to meet either one of the tests in order to 
establish waters of the United States.
    Senator Chafee. Thank you very much. I don't want to put 
you on the spot, but you mentioned some decisions that the 
Justice Department has pursued since the Supreme Court 
decision. Can you tell us in any detail about those? You have 
settled some, you said, and brought new action on others. Can 
you give us any details on what has happened in your department 
since the Supreme Court decision?
    Mr. Cruden. In two cases that we settled, one in Michigan 
and one in Georgia, frankly we had been negotiating those 
before the Rapanos decision came out. Both of them involved 
wetlands. And after the decision came out, we went back to the 
parties and said, would you still like to continue negotiating? 
They did, and we were able to finish then. So notwithstanding 
the decision, there are parties who still wanted to settle.
    Recently, last week, we filed a case in Virginia. The case 
involved a housing project for senior citizens and individuals 
who, without a permit, essentially filled in what we think are 
the headwaters of a stream. We believe that act would probably 
meet either of the tests. So we have filed that as a new 
complaint.
    Third, we were recently challenged in a criminal case. An 
individual was indicted in Florida because in a labor camp, he 
bypassed the septic tank that was holding human excrement and 
let it run directly into a river. He attempted to use Rapanos 
to say that ``I should not be charged with this crime, because 
that was not a continuous flowing river.'' We disagreed with 
him, and we do not believe Rapanos stands for that position.
    [Laughter.]
    Senator Chafee. Thank you, Mr. Cruden.
    Mr. Woodley, under the Kennedy significant nexus test, 
requiring agencies to determine on a case by case basis what 
constitutes a significant nexus between a wetland and navigable 
in fact waterway, who has the burden of illustrating the nexus? 
Will it be the property owners applying for permits or the 
agencies themselves?
    Mr. Woodley. Senator, I believe it is the responsibility of 
the agency to advise property owners as to our views on 
jurisdictional determinations. And we do that under the current 
law. We will provide a landowner with a jurisdictional 
determination upon request.
    Senator Chafee. Very good. The five minute round moves 
quickly, so I will turn to Senator Clinton.
    Senator Clinton.Thank you, Mr. Chairman.
    Mr. Cruden, I believe that the first district court to 
apply Rapanos is U.S. v. Chevron Pipeline Company. That is an 
oil spill case in Texas that seemed to dismiss Justice 
Kennedy's significant nexus test and focused instead on Justice 
Scalia's plurality opinion. In this case, the Court ruled that 
EPA lacks authority under the Clean Water Act to enforce the 
law against an oil company that spilled 126,000 gallons of oil 
into a tributary stream that was dry part of the year, wet part 
of the year and several miles from the nearest navigable water.
    What is your opinion of this case, and what implications 
does it have for other Clean Water Act programs?
    Mr. Cruden. Senator, you are correct that that is a 
decision that has come out. I think it is the only one. And we 
are still in the appeal period. I want to say at the outset 
that the time has not run for us to make an appeal decision on 
that case. So I don't want anything I say to indicate what we 
are going to do yet, because we simply have not made up our 
mind.
    But this is a case, as you indicate, brought under the Oil 
Pollution Act, which still has the magical phrase ``waters of 
the United States'' but is a little bit different law. That 
statute also covers discharges to adjoining shorelines, which 
if you think about it makes sense, because if you have a 
discharge in a pipeline spill case, it very often goes down the 
shoreline into the water of the United States.
    We allege that the rough equivalent of four or five 
swimming pools worth of oil was discharged in an oil break and 
went into a tributary. And I have seen pictures of that 
tributary flowing with water, but not all of the year. Not all 
of the year, and perhaps not at the time that the discharge 
occurred.
    So based on that, we brought the case. But we asked the 
court--because we brought it before Rapanos--we asked the 
court, don't do anything, stay it until Rapanos is decided. But 
the court did not agree with us. So the court went forward 
anyway and both parties filed pleadings. Almost immediately 
after the Rapanos decision, before we filed anything with the 
court about what Rapanos meant, the judge gave the decision 
that you were just talking about.
    Although the court mentions both the Kennedy test and what 
I call the plurality test, it seems that the court was more 
focusing on the plurality.
    Senator Clinton. Mr. Cruden, I am going to have to 
interrupt you. I am sorry, because our time is so short. If you 
characterize the Kennedy test as significant nexus, what is the 
characterization of the Scalia test? The human excrement test? 
I mean, what is it?
    Mr. Cruden. No, the Scalia test is in fact tied to--it, he 
has a long explanation of the statutory phrase and places great 
emphasis on the fact of ``waters,'' in ``waters of the United 
States.'' So for the plurality test, in order for there to be a 
water of the United States, he has defined that as relatively 
permanent flow. That is what----
    Senator Clinton. But again, but then we come to the problem 
in the Chevron case, where in many parts of the country, we 
heard from Chairman Inhofe, sometimes it is dry and sometimes 
it is wet. And when it is wet, it flows. And it flows 
somewhere, or it goes into the ground and maybe into an 
aquifer. So the water is present at certain times of the year.
    So, you know, I find it very difficult because of the 
complexity and the confusion in the plurality opinion, as to 
exactly what it means. And let me just drive forward a little 
bit further here. As you noted in your brief before the Supreme 
Court, effective regulation of the traditional navigable waters 
would hardly be possible if pollution of tributaries fell 
outside the jurisdiction of those responsible for maintaining 
water quality downstream. And I agree with this, I think it is 
a common sense principle.
    Now, do you anticipate then that there will be increasing 
numbers of challenges based on this confusing plurality opinion 
from people who disregard the principle that waters are in many 
instances are interconnected?
    Mr. Cruden. Of all the things that I am confident about 
this opinion, it is that we are going to litigate it and its 
application a lot. But I will say with regard to your point--
about the fact that pollution actually does go downstream in 
those classic pollution cases. By the way, human excrement is 
in fact a pollutant. In responding to that case, we referred to 
Justice Scalia. Because Justice Scalia, in the case of what we 
would call classic polluters, said no court has held that that 
a pollutant has to go directly into the waters of the United 
States. It can actually wash downstream----
    Senator Clinton. Well, exactly.
    Mr. Cruden [continuing]. in those instances, which I think 
is common sense----
    Senator Clinton. But the court in Chevron concluded that 
dumping 126,000 gallons of oil that could get into the 
tributaries was not. So I think that is what argues so strongly 
for us trying to sort this out. So thank you.
    Senator Chafee. Thank you, Senator Clinton.
    Senator Inhofe. Mr. Cruden, let me just ask you first of 
all, there is always an assumption that if you are in the 
Senate you are a lawyer. That isn't always the case. There are 
several of us up here who are not.
    So I would like to have you explain a couple of things to 
the non-lawyers. In Rapanos/Carabell, five Justices voted to 
vacate the Sixth Circuit decisions. The last time I read the 
Constitution, there were nine Justices. So I think that is a 
majority. And in your statement, you said ``Based on all these 
decisions, the Department of Justice has advised courts that it 
believes the applicable standard to determine if a wetland is 
governed by the Clean Water Act is whether either the Rapanos 
plurality is or Justice Kennedy's test is met in a particular 
fact situation.''
    I would just like to have you explain, because there are a 
lot of them who are still saying that the Court's minority 
would set national policy. And I would like to have you explain 
to us that anyone could possibly argue that the opinion of a 
minority of the Supreme Court would rule.
    Mr. Cruden. In this case, of course, we don't have an 
overall majority opinion. And the plurality decision 
consciously disagrees with the concurring decision by Justice 
Kennedy and vice versa. They are two different tests. They are 
apples and oranges in approach.
    This is not the first time in our history that we have had 
to interpret when the Supreme Court simply does not have a 
majority opinion. So when Chief Justice Roberts referred us to 
the Marks decision, we know that as an old obscenity law case. 
In the obscenity law case somebody got convicted of obscenity. 
And the question on appeal was, what law applied. And it was 
another case like this one, where there were just a lot of 
different views.
    And what the Supreme Court said in Marks is, well, the 
narrowest position or maybe the one that has the greatest 
commonality is the one that would control. So I think Justice 
Roberts was doing his best to point us in a direction to help 
us decide what the standard would be.
    Senator Inhofe. Okay, that is fine. But five is still 
majority.
    Mr. Cruden. Five is still a majority.
    Senator Inhofe. Mr. Grumbles, first of all, let me thank 
you for coming out and talking about the commitment that this 
Administration and this President has to wetlands. I appreciate 
it, and we know his initiatives are very far reaching. But 
there are a lot of people who are going to be criticizing him 
no matter what he does. It is kind of like his Clear Skies 
initiative, which is the most far-reaching reduction, mandated 
reduction in pollutants SOX, NOX and 
mercury, of any program, of any President, of any 
administration in history. And yet people are still criticizing 
him.
    I have some pictures up here, Mr. Grumbles, and first of 
all, as my colleagues would know, Mr. Grumbles and I worked 
together in the House committee many, many years ago. These are 
a few pictures of areas designated as waters of the United 
States. However, you will note that there is not any water in 
the pictures. Doesn't water of the United States need water, 
would be my first question. And where in the Congressional 
history of the statutes does it say Congress intended to 
regulate land through the Clean Water Act?
    Mr. Grumbles. Mr. Chairman, thank you for that question. 
Because it is an important opportunity for us to explain that 
waters of the United States, the term that is used throughout 
the statute, where it is in the definitions, is not simply 
traditional navigable waters. It can be adjacent waters and it 
can get into the tributary system.
    A key question is, Justice Scalia in the plurality opinion 
acknowledges that you don't always need the hydrology to be 
there every point in time, that there can be seasonal rivers. 
And of course, an important part of the discussion of the whole 
case is in the committee opinion and also in the dissenting 
opinion about the importance of flow and duration and volume.
    So the point is that over the years, as the agencies have 
interpreted the statute and implemented the regulations, we 
have recognized that it is not just the hydrology, it is 
hydrophytic vegetation, etc., it is soil, you look at a variety 
of factors.
    Senator Inhofe. Let me ask you, because time is going fast 
here, it was confusing to me when you used the term significant 
nexus. I would like to have each one of you define nexus for 
me.
    Let's start with you, Mr. Cruden. Your definition.
    Mr. Cruden. Well, Justice Kennedy says in order for the 
water to be a water of the United States, there must be a 
significant nexus between that tributary or that wetland and a 
navigable water.
    Senator Inhofe. Secretary Woodley.
    Mr. Woodley. I think that the court is trying to describe, 
or the Justice is trying to describe some kind of hydrological 
connection.
    Senator Inhofe. A connection or a relationship?
    Mr. Woodley. Yes, sir.
    Senator Inhofe. You think?
    Mr. Woodley. That's what I think.
    Senator Inhofe. What do you think, Mr. Grumbles?
    Mr. Grumbles. I don't think that you have an agreement 
among the Justices in the Court. But the key, Justice Kennedy--
--
    Senator Inhofe. No, I am just talking about defining nexus.
    Mr. Grumbles. He basically says that the nexus is when you 
have wetlands either alone or in combination with similarly 
situated lands in the region, that significantly affect the 
chemical, physical and biological integrity of what are 
commonly known as traditional navigable waters. Senator Inhofe. 
Wouldn't it be a good idea at some point to have a definition 
drawn out so you don't have to think and we can know? Thank 
you, Mr. Chairman.
    Senator Chafee. Thank you, Senator Inhofe.
    Senator Jeffords.
    Senator Jeffords. Mr. Grumbles, in 2003, I exchanged 
correspondence with the Agency regarding the jurisdictional 
status of Lake Champlain. I ask unanimous consent that copies 
of these letters be included in the record.
    Senator Chafee. Without objection, so ordered.
    [The referenced letters can be found on page 48.]
    Senator Jeffords. At the time, EPA stated ``Lake Champlain 
and its tributaries are currently jurisdictional under the 
Clean Water Act.'' Has the situation changed with Lake 
Champlain as a result of the Supreme Court decision?
    Mr. Grumbles. Senator, I don't know. I think we need to 
look at the specific facts of the situation on Lake Champlain. 
I can't give you a definitive answer on that. I would like to, 
because I want to be accurate, get back to you on that 
specifically. One of the issues for us as we work together to 
issue joint interim guidance to the field as soon as we can is 
to interpret the decision, Rapanos/Carabell decision, as it 
relates to tributaries and adjacency. So I would like to be 
able to get back to you on that specific Lake Champlain 
question.
    Senator Jeffords. How will the Army Corps, Mr. Woodley, 
document on the ground decisions regarding the Clean Water Act 
jurisdiction in the wake of this decision, and make that 
information available to Congress and the public?
    Mr. Woodley. Senator, we have substantially increased and 
improved our documentation and our efforts to make things 
available in response to our work that we have been trying to 
do to understand the implications of the SWANCC decision. So my 
current impression is that those procedures are pretty robust 
and afford a substantial opportunity for the public to examine 
our decision-making in a transparent way. I am delighted to 
revisit it if I should hear that in fact that is not taking 
place in the field.
    Senator Jeffords. Thank you.
    Mr. Grumbles, I have a three part question for you. Are 
wetlands important to water quality and flood control? Do 
pollutants flow downstream from small tributaries to larger 
bodies of water? And when it rains in a normally dry area, as 
it did in Phoenix, Arizona last week, are the contents of dry 
stream beds carried downstream with the water?
    Mr. Grumbles. Senator, I think a clear answer to the first 
question is yes, and a clear answer to the second question is 
yes. On the third question, I think it really does depend on 
the specific, the hydrologic, the conditions of a particular 
tributary or water body.
    I can also tell you, one of the areas that we are working 
together and interpreting and reviewing the decision is how it 
relates to desert washes and dry arroyos and other water bodies 
or tributaries that may not be season rivers, but may also 
significantly affect chemical, physical and biological 
integrity of downstream navigable waters.
    Senator Jeffords. Mr. Cruden, does the Justice Department 
anticipate that the Rapanos decision will lead to increased 
challenges to the Administration's authority to protect 
tributaries and adjacent wetlands? And do you anticipate that 
any changes will be limited within the wetlands program?
    Mr. Cruden. Senator, any time we have a case of this 
nature, almost always we can anticipate increased litigation 
that comes out of it. I once figured out the number of reported 
cases we had between the SWANCC decision in 2001 and now. I 
think we had about 17 or 18 court of appeals decisions and 
about the same number of district court decisions. And that was 
SWANCC--a more narrow case.
    So Senator, I am confident that we will litigate this for 
the foreseeable future.
    Senator Jeffords. I expect you will.
    Mr. Grumbles, the Clean Water Authority Restoration Act 
would take the EPA's and the Corps' definition of waters and 
add it to the statute. Wouldn't this bill have essentially the 
same effects as the position taken by the Administration and 
court?
    Mr. Grumbles. Senator, I appreciate the question and feel 
confident in saying that on an issue of this importance, and 
when there is legislation or a legislative proposal that the 
best way to get an Administration position is to seek one. I 
don't believe we have an Administration position, I don't 
believe we have been asked to take a position on the 
legislation.
    But I can also say, I know all of us, appreciate the 
opportunity to begin this dialogue, to work with Congress, 
Senators, members in the House on authority questions, 
budgetary questions about the ambitious wetlands goals of the 
Administration, and also to try to provide technical assistance 
if you have questions about legislative as opposed to 
regulatory as opposed to budgetary responses to the decision.
    Senator Jeffords. Thank you very much.
    Senator Chafee. Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    Mr. Grumbles and Mr. Woodley, both of you have referred to 
working on an interim guidance to add some clarity on this 
issue. You have used the term guidance, joint interim guidance, 
interim guidance. This suggests to me that perhaps we are not 
moving forward on proposed rulemaking. I am not entirely 
certain what it is that we mean when we say this interim 
guidance. Can you clarify for me?
    Mr. Grumbles. I can start and say that we simply have not 
made a decision as to whether or not to do a rulemaking. A 
priority for us has been to issue guidance to the field as soon 
as we can. So where we are in the process right now is putting 
our maximum effort at working, coordinating with the Department 
of Justice on interpreting and providing useful guidance that 
will advance and help improve the clarity and consistency of 
the jurisdictional decisions and determinations.
    Senator Murkowski. But if that is what you are trying to 
do, why don't you give that clarity through the rulemaking?
    Mr. Grumbles. We will certainly, and I can assure you we 
are going to give it every consideration and look at whether or 
not rulemaking is the best approach. For me, one of the first 
decisions and factors to ask in choosing whether to not a 
rulemaking or legislative or some other process is appropriate 
is: is this approach going to advance the ambitious wetlands 
goals of the President.
    We are focused on the results, and focusing on the results, 
we then want to ask about timing and complexities of a 
rulemaking. And all of those factors we are going to be taking 
into account. But we just simply have not made the decision yet 
about a rulemaking. We hear and we understand that many 
interests and several Justices have signaled that that might be 
the right way to go.
    Senator Murkowski. Let me ask you, Mr. Cruden, because you 
have indicated that if there is one thing that is certain, it 
is litigation. Wouldn't it help you, rather than having some 
interim guidance and some suggestions coming out of the field, 
to have something more concrete through a rulemaking process?
    Mr. Cruden. Certainly changes in legislation or changes in 
regulation, all of those, can provide more certainty. I do not 
want to minimize the importance of Agency guidance, largely 
because you can do it faster and it can actually help people 
provide some understanding right away. As we have seen right 
now in this hearing, there are a lot of different views about 
what this opinion means and its application.
    So to the extent that a guidance can come out and deal with 
some of those areas, it just comes out a lot faster, and I 
think it is helpful to the public to have that.
    Senator Murkowski. I mentioned in my opening statement, 
that many wetlands in Alaska are just different. We have more 
of them, and they have different hydrological functions. Would 
you not agree that when we are dealing with frozen wetlands 
most of the year, when you are dealing with an underlying 
permafrost area, that it may be a different animal than what we 
see down here? Am I correct in that? I throw that out to any of 
you.
    Mr. Woodley. Yes, Senator. You are correct.
    Mr. Grumbles. You are.
    Senator Murkowski. Then given that, and recognizing that 
the application, the Federal application of the Clean Water 
Act, is intended to control that pollution, the contribution of 
pollution to navigable waters, why should activities in a 
permafrost wetland, where you really can't have that kind of a 
contribution, why should it be then under the same Federal 
control? I am trying to understand. I know it is different up 
there. We have kind of a cookie cutter application, which is 
what we deal with when we deal with Federal laws.
    So how can we best move forward in a State like Alaska, 
where we are trying to do the right thing with our wetlands, 
with a one size fits all approach? Mr. Woodley?
    Mr. Woodley. Senator, a large part of the difficulty with 
the administration of this program is the fact that we are 
essentially seeking to apply universal principles to an 
infinitely varied landscape. All land is unique. So we are 
grappling with the issue that you raise for Alaska in every 
part of the country, and we have improvements that we are 
seeking to make. I hope that you are aware of them. I would 
like the opportunity to discuss them with you in greater detail 
when I have more time. We are seeking ways to apply these 
universal principles to the unique situation that you do find 
in Alaska.
    I have, by the way, been to the permafrost. I don't know if 
you have visited our permafrost tunnel.
    Senator Murkowski. Yes.
    Mr. Woodley. It is a unique engineering research facility 
that we manage outside of Fairbanks. I am not in doubt about 
the matters that you raise, or the special situation that 
Alaska presents in our arena of wetlands regulation.
    Senator Murkowski. I will look forward to talking with you 
when both of us have a little more time. Thank you, Mr. 
Chairman.
    Senator Chafee. Thank you, Senator Murkowski. I would like 
to thank the panel also for their testimony and answers to the 
questions--I am sorry. You came in behind me, Senator 
Lautenberg. You were gone for a while and you came back. My 
apologies. Senator Lautenberg.
    Senator Lautenberg. Thanks, Mr. Chairman. I know that you 
never intend to be unfair, and I respect and appreciate it 
greatly.
    Mr. Grumbles, how does EPA track the volume of wetlands in 
existence at all? Is that a process?
    Mr. Grumbles. Senator, we work with our Federal partners, 
U.S. Fish and Wildlife Service specifically, carries out with 
other Federal agencies support the National Wetlands Inventory. 
We also work closely with the Army Corps of Engineers as they 
carry out their regulatory program on tracking wetlands loss, 
permitting.
    Senator Lautenberg. That being the case, do you have 
anything quickly at hand that tells us where the volume or the 
area to that wetlands covered, before let's say, going back 5, 
6 years? Some indication of whether or not there was a net loss 
or net growth in wetlands? Mr. Grumbles. I think maybe one of 
the most useful, not the only but one of the most useful 
documents is the National Wetlands Inventory that was recently 
issued by the Fish and Wildlife Service, tracking wetlands 
losses.
    Senator Lautenberg. Do you recollect whether or not there 
was a reduction in the last 6, 8, 10 years?
    Mr. Grumbles. I do, and we feel it is very important, there 
is a positive trend in reducing the loss of wetlands. When you 
look at 460,000 acres a year being lost back in the 1950s and 
1960s to in the 1990s then much less----
    Senator Lautenberg. Due to the Clean Water Act?
    Mr. Grumbles. Yes. And the most recent Fish and Wildlife 
Service National Wetlands Inventory has indicated that there is 
a net increase in wetlands with an important asterisk, and that 
is that some of those wetlands, using the Coarden methodology, 
include wetlands that may not have as much ecological value as 
other wetlands. That is an important asterisk that the 
Administration provided when we released that report.
    Senator Lautenberg. Would that period of time include a 
broader interpretation of CWA or do you think that what we see 
in the plurality--Mr. Cruden, I am still trying to figure out 
how four out of eight votes gets to be a plurality. But the 
fact is that with this so-called plurality opinion, is that a, 
wouldn't that be a narrowing of the area covered, protected 
under the wetlands statutes?
    Mr. Grumbles. I think the methodology that has been used 
for that National Wetlands Inventory over the last several 
decades, it doesn't align exactly with the Clean Water Act 
definition. It certainly doesn't take into account Supreme 
Court decisions over the last few years. It can be a much 
broader category of wetlands than the legal defined term in the 
Clean Water Act, the defined term of navigable waters.
    Senator Lautenberg. Because if we narrow it to the 
navigable or nexus thereunto, I think there would be, how much 
of a percentage of streams and wetlands do you think might 
change positively or negatively if left without Clean Water Act 
protection?
    Mr. Grumbles. Senator, I appreciate the question. I would 
say it is extremely hard to quantify. We have the National 
Hydrography Data Base that is an approach to try to measure the 
number of perennial and non-perennial streams. It is very hard, 
it is somewhat like apples and oranges.
    Senator Lautenberg. Forgive me, Mr. Grumbles.
    Mr. Chairman, what I would say is, this is a fairly 
available bit of data. Can I ask if you would get back to me 
with some of these comparisons?
    Mr. Grumbles. I would be happy to do that, Senator.
    Senator Lautenberg. Do you think before the clock goes out 
on me, what would be the implications for the protection of 
drinking water if we narrow the definition of what the Clean 
Water Act ought to administer?
    Mr. Grumbles. We view the available tools under the Clean 
Water Act are critically important for source water protection, 
thinking upstream, acting upstream to protect those who live 
downstream and drink from the water. So one of the reasons why 
the wetlands program is a central part of our cooperative 
conservation efforts and efforts under the Clean Water Act is 
because protecting the watershed upstream also can protect 
source waters that are used for drinking water downstream.
    Senator Lautenberg. If you are talking about small, some of 
the tributaries, the small streams that run into navigable 
waters, we have all seen unfortunately in the changes in the 
environmental condition that flooding is not unusual, 
torrential rains and then a drought. But during that torrential 
rain period, I mean, these wetlands become, these little 
streams become an important part of the flow. I think that 
before we remove that protection from some of those streams 
that we have to look at it very carefully. I hope that 
regulatorily or legislatively, Mr. Chairman, that we are going 
to be on the lookout for that.
    I thank you all for your testimony.
    Senator Chafee. Thank you once again, panelists, for your 
answers to the questions and your testimony. We will try and 
have our laws adhere to the Constitution. And any further 
questions will be submitted for the record. Hopefully the 
panelists will respond.
    We will now proceed to our second panel. We have Dr. 
Jonathan Adler, Associate Professor of Law with the Case 
Western Reserve University School of Law; Dr. William Buzbee, 
Professor of Law and Director of the Environmental and Natural 
Resources Law Program with Emory Law School; Mr. Chuck Clayton, 
Immediate Past President with the Izaac Walton League of 
America; and Mr. Keith Kisling, with the National Wheat Growers 
and National Cattlemen's Beef Association.
    I would like to welcome you all here today. As mentioned 
for the previous panel, I hope that your entire statement can 
be submitted for the record and your testimony can be limited 
to 5 minutes.
    Dr. Adler, whenever you are ready.

STATEMENT OF JONATHAN H. ADLER, PROFESSOR OF LAW, CO-DIRECTOR, 
 CENTER FOR BUSINESS LAW AND REGULATION, CASE WESTERN RESERVE 
                    UNIVERSITY SCHOOL OF LAW

    Mr. Adler. Thank you, Mr. Chairman, and members of the 
subcommittee, for the invitation to testify today on the 
Rapanos decision and its implications for wetlands 
protection.This issue is of particular interest to me, both 
given that a large share of my academic research has focused on 
wetlands conservation and the proper role of the Federal and 
State Governments in that conservation, and also because I am a 
fairly active outdoor recreationist and recognize the 
ecological services that much of my recreational activity 
depends upon and provided by wetlands.
    It has already become clear in this hearing that Rapanos is 
a very important case. Unfortunately, given the breakdown of 
the votes, it leaves many things ambiguous. But I think it is 
important not to understate what the opinion also makes very 
clear. Despite the lack of a single majority opinion, the Court 
did provide a discernible holding that the Clean Water Act only 
extends to those waters and wetlands that have a significant 
nexus to navigable waters of the United States. This indicates, 
among other things, that Clean Water Act jurisdiction over 
private lands is significantly more limited than Federal 
regulators have been willing to acknowledge in recent years.
    I think it also indicates the need for revisions to the 
current regulations defining waters of the United States under 
the Clean Water Act, because the existing regulations are no 
longer consistent with applicable Supreme Court precedent. 
Indeed, I would argue, they have not been consistent with 
Supreme Court precedent for at least the past 5 years.
    In terms of the specifics of the Rapanos holding, as has 
already been noted, the Supreme Court in Marks v. United States 
held that when a fragmented court decides a case and no single 
rationale explaining the result enjoys the assent of five 
Justices, the holding of the Court may be viewed as that 
position taken by those members who concurred in the judgment 
on the narrowest grounds. The judgments here were to vacate and 
remand the lower court opinions of the Sixth Circuit Court of 
Appeals; so therefore, the concurring opinion of Justice 
Kennedy and the grounds of the agreement between Justice 
Kennedy and the plurality authored by Justice Scalia form the 
holding of the Court.
    I don't think that one can cut and paste from the Scalia 
opinion and Stevens opinion to put together a holding of the 
Court, because the Stevens opinion was not part of the holding. 
Also because the Scalia opinion is written in terms where it 
establishes what is necessary for Federal jurisdiction, but 
makes clear it is not setting forth what would be adequate for 
jurisdiction. So for example, the Scalia opinion says that 
continuous flow is necessary but not adequate for establishing 
jurisdiction.
    In determining that a significant nexus between a given 
water or wetland and navigable waters is necessary, the Rapanos 
Court largely followed the reasoning adopted by the Supreme 
Court in SWANCC, Solid Waste Agency of Northern Cook County 
Army Corps of Engineers. Indeed, I would note the Court here is 
unanimous on the fact that the SWANCC opinion held that 
isolated waters that have no hydrological connection to 
navigable waters of the United States are beyond the scope of 
the Clean Water Act. That is something the Federal Government 
had not acknowledged, that is something that many policy makers 
have not acknowledged. But it is interesting that all nine 
Justices in Rapanos acknowledge that that is in fact what 
SWANCC held.
    I think it is also important to note here in Rapanos that 
Justice Kennedy and the plurality both explicitly agree that 
however important given environmental considerations may be, 
that does not justify ignoring, stretching or distorting the 
text of the statutes passed by Congress. That is not the 
Court's job. In Justice Kennedy's words, he said that 
environmental concerns provide no reason to disregard limits in 
the statutory text. I would further add that environmental 
concerns also provide no reason to disregard limits in the 
Constitution.
    Insofar as current Federal regulations purport to define 
waters of the United States to include intrastate waters that 
are isolated or that do not maintain a significant nexus to 
navigable waters, they exceed the holdings of both Rapanos and 
SWANCC. Similarly, as both the plurality and Justice Kennedy 
noted, the Corps of Engineers' current regulatory definition of 
what constitutes a tributary exceeds the scope of what the 
Clean Water Act will allow. Both opinions rejected the corps' 
current formulations.
    Until the Corps and EPA promulgate regulations that are 
consistent with Rapanos and SWANCC, they will have to engage in 
a case-by-case determination of what falls within Federal 
jurisdiction. This is not in the interest of the regulated 
community. It is not in the interest of the Federal Government, 
in terms of ensuring that Federal resources are effectively and 
efficiently focused and targeted on meeting Federal goals, and 
it is not in the interest of environmental conservation, 
because it means the Corps of Engineers will have an extremely 
difficult time fulfilling its conservation purpose.
    I would also suggest that in developing new regulations, 
the Corps should not make the mistake that it has made in the 
past of seeking to assert the broadest possible interpretation 
of waters of the United States. Rather, it should take the 
opportunity to adopt a definition of significant nexus that is 
in accord with the purposes, all of the purposes, of the Clean 
Water Act, and focus on those waters where the Federal interest 
is greatest, so the Federal Government is concentrating on 
those matters of greatest concern to the Federal Government, 
and allowing State and local Governments and non-governmental 
entities to play the important role they have historically 
played in helping us to meet the conservation challenges that 
we face with regard to water quality and wetlands.
    Thank you very much, Mr. Chairman.
    Senator Chafee. Thank you, Dr. Adler.
    Dr. Buzbee, welcome.

 STATEMENT OF WILLIAM W. BUZBEE, PROFESSOR OF LAW, DIRECTOR OF 
  ENVIRONMENTAL AND NATURAL RESOURCES LAW PROGRAM, EMORY LAW 
                             SCHOOL

    Mr. Buzbee. Thank you, Senators. I thank the Senators and 
their staff for this opportunity to discuss the Rapanos 
decision. I should say that in addition to being a professor at 
Emory Law School, I had the privilege in the Rapanos case of 
co-authoring a brief for a bipartisan group of four former EPA 
administrators. They expressed strong, united support of the 
Bush administration's position seeking to sustain these long-
existing protections of America's waters.
    As is quite clear after all the witnesses, the Supreme 
Court's decision is not the height of clarity. But I do think 
looking at this case and the other cases that have come before 
it, we can glean some fairly clear legal precepts that should 
guide all of us in the future.
    I will organize my comments into three sections. The first, 
briefly, is why were the stakes in Rapanos so high. Second is 
what did the Court actually do to the law in Rapanos, and here, 
the witnesses disagree with each other, including me. And then 
third, what is the appropriate political response to Rapanos.
    First, as several of the Senators indicated in their 
statements, the stakes in Rapanos were huge. The question of 
what count as waters of the United States is the linchpin of 
the statute. It applies not just to the wetlands protection, 
but it also applies to the Section 402 industrial discharge 
portions of the Clean Water Act. Any waters that are not 
Federal are not Federal for both programs. And Americans care a 
great deal about pollution into America's rivers.
    Despite the stakes in this case, in the end, a majority of 
the U.S. Supreme Court declined the opportunity to weaken the 
law's protections. But then the question is, where is the law 
left? There is no single majority opinion in this case speaking 
for five or more justices. So what we must then do is look at 
votes and opinion content to understand the decision and where 
the law is left.
    Most confusingly, what you have is a situation where five 
Justices agreed that the Army Corps of Engineers had to do 
better in establishing its jurisdiction, but five Justices 
overwhelming agreed with a broad protective rationale for 
jurisdiction under the Clean Water Act. It is this tension 
between concurrence in the judgment and the concurrence in the 
rationale that creates analytical difficulties.
    It is important to understand that five Justices, Justice 
Kennedy in concurrence and Justice Stevens with Souter, 
Ginsburg and Breyer in dissent, strongly and explicitly in 
their language disagreed with virtually all aspects of the 
plurality opinion by Justice Scalia. In addition, Justice 
Scalia at some length attacked Justice Kennedy's opinion. The 
suggestion by some witnesses today that the Scalia and the 
Kennedy opinions express agreement and should be read together 
I find puzzling. There are five Justices in agreement, but it 
is hard to put Scalia and Kennedy together in any way.
    The question is then what do we do in interpreting these 
splintered sets of opinions? As stated by the previous panel, 
the key swing opinion is that of Justice Kennedy. Both by 
itself and also looked at with the dissenting opinion with 
which Justice Kennedy agrees and vice versa, most of the 
statute's protections do remain intact.
    I want to state very clearly that I do not believe that 
Justice Scalia's opinion for a plurality of Justices represents 
the law. Justice Scalia and his fellow plurality Justices 
basically limit Federal protections to relatively permanent 
standing or continuous flowing waters. This view, had it been 
the Court's, would have discarded about three decades of 
established regulatory approaches and established Court 
precedent. The other Justices do agree that at least this many 
waters are protected. But five Justices believe Justice 
Scalia's opinion is way too narrow.
    Justice Kennedy explicitly and repeatedly rejects the 
Scalia opinion as captured in his line that the Scalia opinion 
is ``inconsistent with the Act's text, structure and purpose.'' 
It is hard to be more clear than that. To make Supreme Court 
law, you need five Justices in agreement, five Justices 
agreeing, assenting to the Court's rationale. Justice Scalia 
came up one vote short. Justice Kennedy's opinion is the key. 
His significant nexus test creates an overwhelming overlap both 
with existing regulatory approaches as well as with the 
approaches articulated in the dissents. There are five Justices 
saying the Clean Water Act's integrity goals remain standing. 
Five Justices agree that non-navigable tributaries must be 
covered if they and similar or comparable waters are needed to 
protect navigable waters downstream. Five Justices aligned make 
a Supreme Court precedent, and Kennedy plus the dissenters had 
overwhelming agreement.
    Again, the dissenters would have gone even further, but 
five Justices agree overwhelmingly on the rationale. So in the 
end, I agree that after Rapanos, waters protected would include 
both, and I emphasize both, waters that were protected under 
the Scalia opinion, a small set, plus the waters that would be 
protected under the Kennedy opinion, a much larger set.
    Then the question is, what are political responses, 
something I am sure you are all weighing. Justice Kennedy's 
approach does leave most protections in place, but as Mr. 
Cruden stated earlier, I think there is no doubt that this case 
will spawn a great deal of litigation, litigation over 
applications of it and litigation over any regulations, if new 
regulations are forthcoming. The risk here is of course that 
with new industry and real estate developer language to play 
with, the Army Corps of Engineers may begin to essentially fold 
its cards, fear litigation and too quickly decline 
jurisdiction.
    Somewhat surprising was an interim statement they gave to 
the field where they said, for the interim, let's shrink 
jurisdiction down to Section 10 of the Rivers and Harbors Act. 
That is where the law stood in 1899. I hope that this is not an 
indication of where the law is going to go. At this point, 
under any fair reading of Rapanos, SWANCC and Riverside Bayview 
Homes, a great deal of the law still stands.
    Now, can the Federal agencies cut back on the waters 
protected? I don't think they have much latitude to do so. The 
statute is still in place. It has been in place. Any 
regulations must conform to the statutory language, Riverside 
Bayview Homes, SWANCC language, as well as the Rapanos decision 
and Justice Kennedy's opinion.
    Senator Chafee. Dr. Buzbee, the time has run up, 
unfortunately.
    Mr. Buzbee. Thank you.
    Senator Chafee. Would you like to add a sentence or two to 
wrap up?
    Mr. Buzbee. Sure. I guess my main response is that my sense 
today is there is much discussion over whether there should be 
a regulatory or legislative fix. I think a legislative fix 
enacting into law regulatory protections in place for three 
decades would do a great deal to promote stability in the law 
and allow people to continue using wisdom they have built up 
over three decades, whether they be Republicans or Democrats. 
Thank you.
    Senator Chafee. Thank you, sir.
    Mr. Clayton, welcome.

 STATEMENT OF CHUCK CLAYTON, THE IZAAK WALTON LEAGUE OF AMERICA

    Mr. Clayton. Thank you, Mr. Chairman and members of the 
Committee. I really appreciate the time today to give you our 
points on this litigation.
    I am the immediate past president of the Izaak Walton 
League. We have been around since 1922. We are a science-based 
conservation organization. We have about 40,000 members. We all 
avid sportsmen and women. We have 20 State divisions with 300 
local chapters across the United States.
    We are joined in these comments today with a lot of 
organizations. My comments also represent the views of 
Americans who belong to many organizations: the Izaak Walton 
League, American Fisheries Society, American Fly Fishing Trade 
Association, American Sportfishing Association, Bass/ESPN 
Outdoors, Berkley Conservation Institute, National Wildlife 
Federation, Trout Unlimited and the Wildlife Society. So that 
is quite a number of sportsmen.
    As a land-owning resident of South Dakota and an avid 
hunter and angler, I appreciate the opportunity to share my 
views with the Committee and to illustrate just how the recent 
U.S. Supreme Court decision in the joint cases Rapanos and 
Carabell is affecting wetlands and stream protection where it 
matters most: out on the ground. Frankly, the benefits of 
extending comprehensive protections to the waters such as non-
navigable headwater streams and seasonally dry potholes are 
numerous and undeniable. Among their functions, these various 
forms of water improve the water quality by retaining and 
recycling nutrients such as nitrogen and phosphorous, which 
left unchecked lead to oxygen exhausting algae blooms and dead 
zones, such as red tides. Wetlands trap tremendous amounts of 
sediment, leading directly to clear, healthier downstream 
waters that otherwise would be choked by sunlight depleting 
sedimentation. When left intact, wetlands lessen the 
devastation caused by floods and storms, like that which we so 
painfully witnessed during the Gulf Coast storms of 2005.
    In addition to the important water quality functions that 
all wetlands perform and headwater streams play, they also 
provide critical habitat for many species of fish and wildlife, 
including numerous species that are listed as threatened and 
endangered. Salmon and trout use cold water headwaters for 
spawning. These streams often are intermittent and ephemeral. 
And as such, their protection under the Clean Water Act was 
left open for debate by the Supreme Court's decision in 
Rapanos.
    These ephemeral and intermittent streams make up nearly 60 
percent of the streams of the United States. Losing them would 
be yet another barrier to restoring native trout runs and 
salmon and shad runs. Other non-game fish, such as large mouth 
bass and northern pike use varied types of wetlands and 
headwaters for the same purposes. Each specific type of wetland 
provides a certain set of conditions, including the proper food 
and cover necessary for the survival of that specific species 
of fish. And by temporarily storing water, even isolated 
wetlands ensure that downstream flows remain both cool and 
relatively constant, critical elements for healthy fish 
populations, but also important elements to fight and stave off 
the negative effects of drought.
    The thousands of small wetlands that make up the prairie 
pothole region of the Dakotas, often referred to as North 
America's duck factory, annually support four million pairs of 
waterfowl that depend on high quality wetlands for nesting and 
the rearing of their young. The Supreme Court's decision in 
Rapanos leaves the status of virtually all prairie potholes in 
limbo. Losing these wetlands to development would put the 
future of these ducks in grave peril, and many other species 
also wetland-dependent. For example, deer, pheasants, quail and 
many songbirds, as well as reptiles and amphibians, such as 
turtles and frogs, depend on healthy wetlands and are a key 
component of their habitat during the year.
    The benefits of wetlands are important for people, too. 
Thirty-four million anglers and 13 million hunters rely on 
clean water and healthy fish and wildlife populations that 
isolated wetlands support. These sportsmen and women 
contributed directly to the sustained economic growth and 
viability of communities across the United States, to the tune 
of about $70 billion, with a B, annually.
    The economic benefit stems not just from hunters and 
anglers but also birdwatching, one of the most popular and 
fastest-growing pastimes in the Nation, which pumps millions 
more into local economies. Outside of recreation, wetlands are 
also vital to three-fourths of America's commercial fish 
production, which is worth about $111 billion. If wetlands were 
left unprotected from agricultural, residential and commercial 
development, the economic loss would be staggering.
    Despite the benefits, the protection of wetlands and many 
other waters has been bogged down by the bureaucratic 
misrepresentations, allowing important Clean Water Act 
determinations to be made on an ad hoc basis. While the 
Administration did a good job of defending the protection of 
wetlands and streams in the Rapanos case, they have not 
sufficiently led the way for consistent, vigorous use of the 
Clean Water Act to protect these vital resources. For instance, 
over a six month span in 2005, the Omaha region of the U.S. 
Army Corps of Engineers, which includes parts of six States, 
including my home State of South Dakota, the corps deemed that 
at least 2,676 acres of wetlands, lakes, streams and other 
waters fell outside the scope of the Clean Water Act. This 
approach to protecting our most important watershed resources 
is just not working.
    The Supreme Court decision in Rapanos further muddied the 
waters by providing little clarification to the agency 
officials in how they should proceed to protect the waters and 
providing no meaningful direction in how the Clean Water Act is 
to be applied. If this decision fails to provide what 
Government land managers and environmental regulators so 
desperately need, a clear formula for protecting our valuable 
water resources, protection should be the rule, not the 
exception. The conservation of our most important water 
resources now depends on the leadership in Congress to make the 
Clean Water Act explicitly inclusive to all wetlands and lakes 
and streams. The Environmental and Public Works Committee is 
currently considering legislation that would plainly codify the 
protection of these resources, the Clean Water Restoration Act.
    Senator Chafee. Mr. Clayton, you have gone over the time. A 
few seconds to wrap up.
    Mr. Clayton. I would be happy to answer any questions at 
the end.
    Senator Chafee. Thank you. Well done.
    Mr. Clayton. Talk about a little fish in a big pond--no pun 
intended.
    Senator Chafee. Well, you could make an auctioneer.
    [Laughter.]
    Senator Chafee. Mr. Kisling, welcome.

   STATEMENT OF KEITH KISLING, NATIONAL ASSOCIATION OF WHEAT 
         GROWERS, NATIONAL CATTLEMEN'S BEEF ASSOCIATION

    Mr. Kisling. Chairman Chafee and the committee, I 
appreciate the opportunity today to come before you and 
testify. It is quite an honor, I must say.
    My name is Keith Kisling. I am from Burlington, OK. I am 
here today testifying on behalf of the National Association of 
Wheat Growers and the National Cattlemen's Beef Association. I 
raise 1,500 head of stocker cattle on wheat pasture and 900 to 
1,000 cattle on a backgrounding lot. Additionally, I grow wheat 
on more than 3,000 acres.
    Currently, I am chairman of the Oklahoma Wheat Commission 
and am past chairman of the U.S. Wheat Associates. That is the 
marketing arm for wheat growers in our country. My family has 
been farming and ranching for more than 35 years.
    Where I farm and ranch in northwest Oklahoma, we are 
constantly challenged by the timing and lack of rainfall for 
crops and pasture. We are accustomed to dealing with 
uncertainty in weather and climate conditions. However, as 
landowners regulated under the Clean Water Act, we desperately 
need regulatory certainty.
    Members of NAWG and NCBA are on the land every day raising 
and growing food for our Nation and the world. We produce the 
cheapest and most plentiful supply of food in the world. Our 
producers respect and love the land in a way occasional 
visitors to the land may have difficulty comprehending. We know 
that food production must be sustainable for it to be 
economically viable in the long run.
    Approximately 70 percent of the land in the lower 48 States 
is owned privately. A substantial portion of this land is used 
for the production of food, which is arguably the most 
important use for the land. The production of food in our 
country cannot be taken for granted. Farmers and ranchers in 
other countries are increasingly able to produce comparable 
food at less cost to the American market. American producers 
face an ever-tightening web of regulations. While many, if not 
all, of the environmental and work-safety regulations are well 
intended and address demands of society for use of the land, it 
must also be recognized that limiting and ultimately choking 
the ability of farm and ranch operations to earn a living will 
come at a considerable cost.
    Private property rights are perhaps the most important 
principle in our Nation's laws and customers, against abusive 
Government conduct. People want to be left alone to use their 
property as they see fit. While we understand that Government 
can and should regulate private conduct in certain carefully 
prescribed instances, we expect in this country that regulation 
will be pursuant to law.
    With regard to the recent Supreme Court decision in 
Rapanos, we see some common ground between Justice Scalia's 
opinion and Justice Kennedy's concurrence as a starting point 
to mold a rational policy on wetlands. According to the Supreme 
Court, the EPA and the Army Corps of Engineers must adopt a new 
regulation clarifying the judicial reach of the Clean Water 
Act. We concur wholeheartedly. We are pleased the Court 
sustained and reaffirmed our long-held view that Federal 
agencies operating under the Act do not have unlimited 
authority to regulate private activities.
    Two fundamental things would benefit landowners. First, 
agencies should in a timely manner issue a final Agency action 
when asked to make a wetlands jurisdictional decision. 
Currently, the only means for a landowner to challenge a 
jurisdictional decision is to violate the law or seek a costly 
permit. Second, the 1987 Wetlands Delineation Manual is nothing 
more than Agency guidance subject to change at Agency whim. The 
manual lacks the due process afforded to landowners under the 
Administrative Procedures Act.
    Much agricultural protection land has some kind of water on 
it, either permanently or intermittently. Without clear notice 
of the extend of the Government's regulatory reach provided by 
rule, producers will always be uncertain about the extent they 
can use their land without running afoul of the proscriptions 
in the Act.
    Much has been made of Justice Kennedy's proposed 
significant nexus test for determining whether a wetland is 
within the reach of Government regulation under the Act. It may 
be that jurisdictional determinations for wetlands will have to 
be done on a case by case basis to some extent. However, the 
Supreme Court has offered some bright lines in the SWANCC 
decision and the common elements in Rapanos for excluding 
certain waters from the reach of the Act. There is just too 
much room for the different interpretations by agencies and 
courts about which lands are regulated as navigable waters and 
which activities are exempt. The current situation leaves 
farmers and ranchers with too much uncertainty and a 
significant risk of endangering activities that will engage in 
huge fines, jail time and the forfeiture of the use of their 
private property.
    Thank you.
    Senator Chafee. Thank you very much, Mr. Kisling.
    The Chairman of the full Committee would like to ask the 
first round of questions, which will be limited to five 
minutes, as was the past round.
    Senator Inhofe. Thank you, Mr. Chairman.
    First of all, let me thank you for allowing me to go first, 
and my colleagues for allowing me to. I have a Senate Armed 
Services required attendance that I am already late for. But I 
wanted you to know, Mr. Kisling, how refreshing it is to have 
someone come up from Oklahoma and say things that are so 
logical. I am reminiscent a little bit about what happened 40 
years ago this year. I came before this committee as a young 
State legislator, complaining about the property rights that 
were affected by Lady Bird's Highway Beautification Act of 
1965. Now here we are 40 years later, still worrying about 
property rights.
    So I appreciate the common sense you bring, and it runs in 
your whole family, I might add.
    I want to show you a few pictures here. These are areas 
that the corps is permitted, as navigable waters, under the 
Clean Water Act. If this were your farm, Mr. Kisling, would you 
know that these are navigable waters subject to Federal 
jurisdiction?
    Mr. Kisling. No, sir, I wouldn't. I have some instances in 
my neighborhood that would be close to some of these that are 
called wetlands. For a little information, I read the Rapanos 
ruling on my way here. It gave me a real insight on what is 
happening in wetlands that I didn't really know.
    And I think I understand now why EPA and the Corps of 
Engineers have expanded in the last 10 years their regulations 
and the way they penalize us on some of the things that are 
happening. I think it could be, we wonder if maybe it is the 
money that they get or if it is the power that they want.
    But I understand now that we spend $1.7 billion a year just 
for private permits, which was really not understandable to me. 
We also in that $1.7 billion, it takes $760 billion just to 
fulfill that permit. So we spend a lot of money doing those 
things.
    I just think that we need a bright line, we need something 
to show us some direction on the farm as to whether to go, 
whether we are within the regulation or whether we are not 
within the regulation.
    Senator Inhofe. Do you mean you are so naive as to suggest 
that we define a wetland?
    Mr. Kisling. Yes, Senator. I would like to see us have some 
direction, so that we don't cross over that line and it cost us 
63 days in jail.
    Senator Inhofe. You heard the example in my opening 
statement I made about Kingfisher County. You and I are 
familiar with Kingfisher County. Sometimes there is an 
advantage to not being a lawyer, because you read the 
Constitution and really know what it says. And taking property 
without due process is something that has become very 
commonplace.
    So I think you used the word certainty. And that is really 
what you are talking about, isn't it? You want certainty, you 
want a definition, you want the farmers in Oklahoma and 
throughout America to know in advance what they can and can't 
do, and to know what a definition of a wetland is? Is that the 
certainty you are looking for?
    Mr. Kisling. Yes, sir.
    Senator Inhofe. I think it is very reasonable.
    Mr. Kisling. Senator Inhofe, we have gone from the 
illustration that Ms. Clinton gave a while ago of the pipes, 
dumping sediment, dumping pollution into the streams to our 
potholes, our buffalo wallows in the middle of a wheat field 
today. That correlation has come a long way. Now they say that 
this little pothole in the middle of a wheat field and a duck 
flies away and gets in a tributary, or a molecule floats away 
or gets into a tributary is the connection. This is the 
distance that we have come since 1972 and the Clean Water Act.
    Senator Inhofe. I appreciate your remarks.
    And Dr. Adler, I appreciate your being back. You testified 
in our Gas Price Act, which is one that I still have hopes for. 
Let me just get something on the record with you. Following the 
League of Latin American Citizens v. Perry, some of the EPA 
have indicated that they believe future courts would uphold a 
regulation that complies only with the dissent, where it 
overlaps with Kennedy, using the League decision as 
justification. Do you agree with that?
    Mr. Adler. I am not sure what the League decision adds to 
that. The binding standard is Marks, which I quoted in my 
testimony. I think the LULAC decision, if one looks at it--and 
it is certainly a case that is a mess and hard to get through--
it complies with Marks. The holdings of that case are all those 
instances where five Justices agree on a judgment, and concur 
in this judgment. Whether you are looking at that case or 
whether you are looking at Bakke or you are looking at Grutter, 
you don't see things characterized as holdings that rely upon 
language in opinions that don't concur in the judgment. The 
reason for that is that such language is dicta, it has no 
legally binding force.
    In this case, that problem is compounded because there are 
places in Scalia's opinion where he makes clear that he is 
merely noting what an outer bound of Clean Water Act 
jurisdiction would be in his view. He is not saying what the 
precise test should be. In fact, in one of the footnotes he 
says explicitly that what is often cited as the test of the 
plurality is merely what is necessary but not necessarily 
adequate for the establishment of jurisdiction. That would be 
something very thin to rest jurisdiction on, trying to put that 
together with the dissent that didn't join the judgment.
    So I think the focus should be on Kennedy's opinion, just 
as in the Bakke decision the focus was on Justice Powell's 
opinion.
    Senator Chafee. Thank you, Dr. Adler. Thank you, Mr. 
Chairman, for taking me out of order.
    Thank you, Senator Inhofe.
    Senator Jeffords.
    Senator Jeffords. Dr. Buzbee, in his separate concurring 
opinion, Chief Justice Roberts says that because there is no 
opinion commanding a majority, then ``lower courts and 
regulated entities will now have to feel their way case by 
case.'' This seems to indicate that there is no binding 
precedent set by this decision. What do you interpret the case 
by case statement to mean?
    Mr. Buzbee. It is a slightly puzzling statement. I guess I 
have a couple of things to say about it. One is his statement 
there clearly does not constitute a majority view of the 
Supreme Court. That is his view about how people should work 
with this case.
    I think looking at this case, there are five Justices in 
overwhelming agreement about the protective rationale under the 
Clean Water Act. I think that is what lower courts and agencies 
and all people trying to comply with the Act need to look to 
from now on. I think there will be some case by case 
application, because it is a new case and people are going to 
have to figure out what it means. In that sense, I think he is 
stating a clearly correct point. But I don't think it is case 
by case in the sense of no law.
    Senator Jeffords. Mr. Clayton, in 2003, in comments to the 
EPA, Vermont, my State, stated ``If the Corps of Engineers 
loses jurisdiction over waters, what are merely tributaries to 
navigable waters, then many activities will go unregulated, and 
there is a great potential for the degradation of streams.'' 
Knowing that outdoor recreation accounts for 22 percent of all 
visitors to Vermont, how do you think a lack of protection for 
small streams in Vermont would affect our local communities?
    Mr. Clayton. Senator, thank you for the question, but I am 
not very familiar with Vermont. I live out in the heartland, in 
the northern plains of South Dakota. I can tell you that in the 
State of South Dakota, we have an $86 million fishing industry, 
and that is tourists coming to fish in South Dakota, because we 
have quite a few unspoiled waters.
    Sixty-five percent of our wetlands have not been drained, 
as opposed to States like Iowa, where 95 percent have been 
drained. That would be a huge hit for our State economy, 
because our State economy, the second biggest industry is 
tourism, between the hunting and the fishing. So I can just 
tell you from my own experience in my own State, it would be a 
huge hit to our economy.
    Senator Jeffords. Well, I appreciate hearing that. I think 
my people feel the same way.
    Mr. Clayton, what do you think of the proposition that it 
can be left largely to the States to determine which streams 
and wetlands should be protected from pollution? And based on 
your own experience, would this be a workable approach?
    Mr. Clayton. Senator, I have been a wetlands advocate 
forever. I can identify with Mr. Kisling here about the idea 
that he should have one place he can go and get delineation of 
wetlands, etc.
    But so far, you have noticed here this afternoon nothing 
has worked. I don't believe States should, would or could take 
care of wetland delineations and wetland problems. We have a 
navigable river in South Dakota that runs from almost the North 
Dakota border down to the southern border of South Dakota, 
dumps into the Missouri River and continues down to the Gulf. 
There is no way one single State should have that kind of 
jurisdiction over wetlands, etc. Right now, that river is not 
flowing, because we are in an extended drought.
    So what we would we do about that? That just kind of 
introduces you to some of the problem. But what is happening 
right now cannot be taken care of by State jurisdiction, we 
don't believe.
    Senator Jeffords. Thank you.
    Dr. Buzbee, do you believe that the agencies are required 
to rewrite their regulatory definitions of waters of the U.S. 
in response to the Supreme Court's decision? Or can the 
agencies continue to implement the law under their existing 
regulations?
    Mr. Buzbee. My view is if you look at the Justice's votes, 
there is no majority striking down the regulations. This case 
concerned a particular application of the regulations in two 
different circumstances. Several Justices basically expressed 
the desire that the agency go back and look at the regulations 
again.
    But there is a world of difference between the Supreme 
Court striking down a regulation, something that it does 
occasionally, and does so usually with great clarity, and 
Justices expressing a desire that the Army Corps and the EPA 
clarify the law. I think several Justices would like to see 
clarification in the law, but they are not mandating it. As the 
EPA witness earlier stated, the agencies have to weigh many 
factors in deciding whether it is worth issuing new 
regulations.
    Senator Jeffords. Dr. Buzbee, can you explain whether you 
believe this decision will affect parts of the Clean Water Act, 
other than the wetlands program, and if so, why?
    Mr. Buzbee. Yes, absolutely. As several people have stated, 
and I mentioned about the definition of waters, this is not 
just a case about wetlands. This case is about what count as 
waters, and most critically, that includes the pollution 
control provisions of so-called NPDES permits, the pollution 
discharge permits from factories and various waste facilities 
are protected or subject to Section 402. Only if waters are 
Federal are people prohibited from discharging, except in 
compliance with Section 402. So this is a case that concerns 
wetlands, as well as pollution discharges.
    Senator Jeffords. Thank you.
    Senator Chafee. Thank you, Senator Jeffords.
    Dr. Buzbee, you suggest at the end of your testimony that 
we are obviously looking for a legislative fix. And how are we 
going to accomplish that, without exceeding the constitutional 
restrictions in the Commerce Clause as defined by the Supreme 
Court? What advice can you give us?
    Mr. Buzbee. I guess I would say I don't think there would 
be any constitutional issue, that the Restoration Act, at least 
the versions I have seen earlier, really are trying to take 
three decades of regulatory approaches and turn them into 
statute. They have not been struck down on constitutional 
grounds. Only one case found a constitutional problem, and that 
was the SWANCC case involving migratory birds in isolated 
wetlands. There the court said it would interpret the statute 
to avoid a constitutional question.
    If you look at Rapanos, five Justices do not see a 
constitutional problem with protecting tributaries and 
wetlands, such as are at issue in this case.
    Senator Chafee. And Dr. Adler, can you comment on Dr. 
Buzbee's legislative fix?
    Mr. Adler. Yes. I am not sure that Professor Buzbee and I 
would agree on that. Justice Kennedy, for example, in his 
concurring opinion in Rapanos, says that the reason why there 
aren't any federalism concerns with the Clean Water Act is 
because there is a significant nexus requirement. And that 
requirement essentially protects the application of the Act 
from federalism-type concerns. And he does not disavow the 
opinion he joined in SWANCC, which suggested that a broader 
application of Federal authority would raise significant 
federalism concerns.
    I would also note that if one looks at text of the 
regulations themselves, the regulations the corps has not 
revisited significantly or meaningfully in some time, there is 
language in those regulations which on its face appears to be 
at odds with some of the Supreme Court's federalism cases, even 
despite the medical marijuana case of last year, in part 
because the Supreme Court test is that regulations must control 
activities that have a substantial effect on interstate 
commerce.
    The test of the regulations purports to assert Federal 
jurisdiction over things that could affect interstate commerce. 
There are two potential problems there. One is the fact that it 
is a conditional effect, rather than an actual effect. And two, 
that it is a sample effect as opposed to a significant effect. 
So in two respects, the regulations could potentially be 
broader than the Court's doctrine.
    This isn't just my view. For example, Professor Richard 
Lazarus at Georgetown wrote a column back in 1995, just after 
the Lopez decision, saying that the Corps of Engineers, as 
written at the time, were ``clearly out of bounds'' given the 
Lopez decision. He argued at the time that the Corps of 
Engineers could rewrite its regulations to achieve most of the 
same environmental goals without those constitutional problems. 
But the Corps of Engineers has not sought to do so, and that 
has led to some of the cases like SWANCC and like this.
    Senator Chafee. Do you recommend Congress have some action 
as a result of the Supreme Court decision?
    Mr. Adler. I think that the administrative process can 
actually handle this. I think the level of detail and 
specificity that would be required to develop a set of 
regulations that are tailored to the ecological considerations 
involved in wetland protection, and the fact that they are 
different from place to place, that is accomplished more easily 
in the administrative process than in the legislative process.
    And I don't think it is simply a question of adopting a one 
paragraph definition of what constitutes a water of the United 
States. I think it requires a more detailed process of what it 
is that creates a significant nexus between a given wetland or 
water and navigable waters. I think the administrative process 
whatever its faults, would do that more effectively.
    Senator Chafee. Do you agree with that, Dr. Buzbee?
    Mr. Buzbee. I don't, primarily for one reason, and that is, 
any new regulatory definition, if promulgated in a final sort 
of way, would itself undoubtedly, to litigation challenge, 
whether the regulations sought to strengthen the regulations, 
just hold them constant or weaken them. Legislation, in 
contrast, would stand a real chance of keeping a law stable and 
as it has been now for about three decades. I think avoiding 
litigation and uncertainty would address many people's 
concerns, be they environmentalists or be they cattle ranchers, 
around the country.
    Senator Chafee. And Mr. Kisling, in your experience and 
your members' experience, has the State done a good job of 
regulating wetlands in Oklahoma? Are there strong State laws 
that require you to obtain permits in order to fill wetlands?
    Mr. Kisling. Yes, Senator, I think they have. I have 
several wetlands on my farms. And we are kind of regulated on 
how we can farm, what types of practices that we can do on 
these farms that have wetlands on them.
    Senator Chafee. Can you describe the wetlands? Are they 
year-round?
    Mr. Kisling. Yes. The wetland I am talking about in 
particular are buffalo wallows, that happened a long time ago 
when the buffalo roamed in our area. They pressed down this 
land really hard and made a hard bottom to it. We farmed over 
those some, but we haven't been able to fill them in, and they 
will still hold a little bit of water.
    Senator Chafee. Year-round?
    Mr. Kisling. Well, I haven't dumped an inch of rain out of 
my rain gauge since October. So this year, no, but a lot of 
years, yes. We are not able to go in with a deep ripper and 
open those up. So a lot of times, yes, they do have a little 
bit of water in them, and you can't fill those like you do 
everything else, or you are illegal. You can't fill them or you 
are illegal. There have been a lot of neighbors turned in from 
trying to fill those with dirt, so that they don't hold water.
    Senator Chafee. Do you think you should be able to farm 
those wallows?
    Mr. Kisling. The way their interpretation is now of the 
connection, if an animal, a goose or a duck, and there is water 
in those, flies to a creek or a drainage ditch, and deposits 
that little bit of water in that drainage ditch from that 
wetland----
    Senator Chafee. I don't think we should stretch it too far. 
I am not disagreeing with that. But in your experience, these 
seem to be almost year-round in most years wetlands. Is it 
worth it? Do you think we should set the precedent nationwide, 
fill in these year-round wetlands? I am sure you could make a 
little extra money growing your crops there.
    Mr. Kisling. He said it shouldn't affect, the price of the 
property shouldn't be what we emphasize here, it ought to be 
people. But I don't think, and I agree that it should be 
people, but we live right here in that area where it is. We are 
not going to drink that water ourselves if it is polluted. So I 
don't think that that area should be considered a wetlands with 
that strict distinction. So that is why I think there needs to 
be a yellow line, some kind of a bright line there, so we know 
whether we have crossed that line or not.
    Senator Chafee. I think that is what we are going to try 
and do, as Senator Inhofe said, give some certainty here. The 
Supreme Court has made that task, presented that task to us. 
Dr. Adler is saying it can be done administratively, Dr. Buzbee 
is saying it can be done legislatively. That is why we are 
having this hearing.
    I am grateful for your testimony and your experience and 
bringing what you see on the ground in your farms in Oklahoma 
here to us in Washington. Mr. Clayton, likewise.
    Senator Lautenberg.
    Senator Lautenberg. Thank you. I appreciate how courteous 
were to permit our Chairman to ask his questions. So I kind of 
didn't want to be forgotten a second time. But you are very 
kind.
    [Laughter.]
    Senator Lautenberg. It is interesting to me to learn some 
of the definitions that we will occasionally get from the 
witness table. I did not know arithmetically that plurality is 
when both sides are equal. So thanks for clearing up that 
definition, Dr. Buzbee.
    I will tell you what surprises me, and I am so disappointed 
that Senator Inhofe is not here, because I don't get a chance 
to punch back when he is saying things, and I wait for the 
opportunity when he is finished, but then he disappeared. But 
we differ on a lot of things. He often talks about the pizza 
parlor which has been fined and penalized for throwing trash in 
the wrong place.
    I look at my State, the most crowded State, the most 
densely populated State in the country. We have more people per 
square mile. But Mr. Kisling, we also oddly enough have more 
horses per square mile than any other State in the country. 
That is always a surprise. Because it is not that we have that 
many horses, but we have very few acres. So it works out. In 
any event, the question that comes up, is the country better 
off for Government regulation or Government contribution in any 
way? When I hear some folks talk that say they want to get 
Government out of their lives, and let us be alone and so 
forth. But the problem is, our actions often affect our 
neighbors and other people's lives. So I think some regulation 
is in order. I believe in the free spirit of America, I have 
devoted my life to it, pretty much. In my business, 30 years in 
business, fairness and equity, as well as my 20 years in the 
United States Senate. Mr. Kisling, do your cattle graze at all?
    Mr. Kisling. Yes, sir.
    Senator Lautenberg. Do they graze on any Federal lands?
    Mr. Kisling. No, sir.
    Senator Lautenberg. Do you get the benefit of any support 
programs in wheat?
    Mr. Kisling. Yes, sir.
    Senator Lautenberg. You do. Because I know that you 
mentioned the fact, is it considered a drought in Oklahoma? 
Forgive me for not knowing.
    Mr. Kisling. Yes, sir, we are very dry. We had half a wheat 
crop this year.
    Senator Lautenberg. Wow. It is terrible, because we could 
give you some water from New Jersey, but we don't have a way of 
transmitting it.
    But so, there is a Government program, I take it. Has 
business been pretty good in your farming and ranching overall?
    Mr. Kisling. The cattle industry has been very good the 
last few years.
    Senator Lautenberg. Very good. Even with the fat scare and 
all that stuff? People went back to eating good steaks when 
they see them. So is it fair to say that there is some benefit 
from some Government intervention in this case? I mean, if they 
help you endure drought in your farming area, it is a 
worthwhile program, I would say, to keep people in business. Do 
Oklahomans buy bottled water at all, do you know?
    Mr. Kisling. Yes, sir, we do.
    Senator Lautenberg. They do. Why don't they just trust us 
to be good neighbors? And you and I, we all know why. But Dr. 
Buzbee, you recommend a legislative solution and your colleague 
at the table, Dr. Adler, recommends an administrative solution. 
But to me, it depends on whose administration it is that tells 
you where we ought to go. So I think legislative we ought to 
try to iron it out, just to be sure. I am hoping that the 
Supreme Court doesn't complicate things further, as we have 
seen by the inability to get a majority opinion there. Wouldn't 
you say that the Supreme Court decision in the Rapanos case is 
likely to lead to more litigation by industries seeking to undo 
the protections of the Clean Water Act?
    Mr. Buzbee. Yes, I do think so. I think that despite the 
fact that the case didn't really unsettle the law, there is new 
language, and Justice Kennedy's test gives lawyers the 
opportunity to fashion new challenges and tests and probe at 
the law. So I think we are virtually certain to see a great 
deal of new litigation.
    Senator Lautenberg. What weight should be given based on 
the numerical relationship in the Court to Justice Scalia's 
opinion? Where do we go with that?
    Mr.Buzbee. Is the question directed to me, Senator?
    Senator Lautenberg. Yes.
    Mr. Buzbee. Thank you. My sense is that the Justice Scalia 
opinion, the plurality, which states a limitation on the Clean 
Water Act, does not command the necessary five votes. To the 
extent continuously flowing or permanent waters might protect 
some waters that otherwise wouldn't be, I think you have a 
unanimous court saying that certainly should be at least 
enough. I think in the end, Justice Kennedy's opinion is really 
the key under any number of rationales, Justice Kennedy's 
opinion is the key, stating the significant nexus test. That 
leaves most of America's waters protected.
    Senator Lautenberg.  I close, Mr. Chairman, but I have to 
say to Mr. Kisling, I enjoyed hearing his testimony. Don't be 
fooled by Senator Inhofe. Now, he is a friend of mine. We don't 
agree on anything.
    [Laughter.]
    Senator Lautenberg. But I consider that we are good 
friends. So don't believe what he says that Oklahoma is the 
only place where common sense exists, please.
    [Laughter.]
    Senator Lautenberg. Thanks very much, Mr. Chairman.
    Senator Chafee. Thank you, Senator Lautenberg. Thank you, 
Senator Jeffords.
    If there are no further questions, there may be questions 
that we will submit for the record. Hopefully you will be able 
to respond as soon as you can. Once again, thank you for 
testifying.
    Yes, Senator Jeffords.
    Senator Jeffords. I only wanted to do that, because I want 
everybody to sit down, because I want to praise you for holding 
this hearing. It was done beautifully, well prepared. I may not 
see you again for a while.
    Senator Chafee. Thank you, Senator Jeffords. We are on 
August recess in a week.
    Senator Jeffords. That is right.
    Senator Chafee. We will reconvene in September. Thank you 
again, gentlemen.
    [Whereupon, at 4:53 p.m., the subcommittee was adjourned.]
    [Additional statements submitted for the record follow.]
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 
                          WASHINGTON, DC 20460
                            JANUARY 9, 2005
    Ms. Jeanne Christie
    Executive Director
    Association of State Wetland Managers
    2 Basin Road
    Wjndham, Maine 04062

    Dear Ms. Christie:
    Thank you for your letter of December 19, 2005, indicating that the 
Association of State Wetland Managers (ASWM) is developing an amicus 
brief in support of the Federal Government in the two cases currently 
before the U.S. Supreme Court, Rapanes v. United States and Carabell v. 
U.S, Army Corps of Engineers. I appreciate ASWM's interest in these 
important cases.
    Your letter requests information on a nationwide scale regarding 
the extent of nun-navigable tributaries and adjacent wetlands, as well 
as on the number of drinking water intakes and Clean Water Act (CWA) 
National Pollutant Discharge Elimination System (NPDES) permits on such 
waters. The Environmental Protection Agency (EPA) has received 
information from the public and conducted its own data search on these 
and related issues. Much of the data, for example, are extracted from 
national data sets and compared to information provided to EPA in 
public responses to the 2003 Advance Notice of Proposed Rulemaking 
(ANPRM) for the Clean Water Act Regulatory Definition of ``Waters of 
the United States.'' Most of the data used to conduct these analyses is 
publicly available. While these data represent a factual summary of 
information obtained from the public and from Government data sets, we 
have included any appropriate caveats where assumptions have been 
necessary in order to respond to your specific questions.
    Some of the analyses and data are identified below as preliminary 
because they are still being peer reviewed. Data and analyses reviewed 
and approved through an outside peer review process include the NHD 
methodology and analysis using start reaches and intermittent/ephemeral 
waters as a conservative approximation for ``non-navigable'' waters, 
and the location of NPDES dischargers into such waters.
    The extent of non-navigable tributaries is difficult to estimate 
nationwide because navigability is not a parameter included in national 
databases. For example, the publicly available National Hydrology 
Dataset (NHD) maintained by the U.S. Geological Survey docs not 
distinguish between navigable and non-navigable waters. Instead, the 
NHD characterizes stream reaches based on flow characteristics such as 
perennial and intermittent/ephemeral. We are providing data on the 
linear extent of intermittent/ephemeral streams and ``start reaches,'' 
stream segments in the NHD that lie at the head of the tributary system 
and have no other streams flowing into them, because streams with these 
characteristics arc likely to be non-navigable waters. We believe that 
the length of streams in these two categories provides a conservative 
range of the extent of non-navigable waters in the United States.
    Based on available 1:100,000 scale data from the NHD, we estimate 
that 53 percent of stream kilometers (2,915,824 km) in the U.S. outside 
Alaska are start reaches. Similarly, queries to the NHD indicate that 
59 percent (3, 214,641 km) of the total kilometers of streams in the 
U.S., excluding Alaska, are intermittent/ephemeral, This information 
suggests that the linear extent of non-navigable waters ranges from 
between 53-59 percent of the total length of streams in the U.S., 
excluding Alaska. These estimates appear consistent with those 
submitted by States commenting in response to the ANPRM. EPA has 
conducted a preliminary analysis to estimate the number of wastewater 
sources authorized under the Clean Water Act's Section 402 permits 
program to discharge into either start reaches or intermittent/
ephemeral streams nationwide based on data from the NHD and EPA's 
national database for the NPDES program, the Permit Compliance System 
(PCS), excluding Alaska. An analysis of PCS data from June 2004 shows 
that approximately 85 percent of the individual permits (approximately 
37,000 out or 43,000 permits in PCS at that time) have data necessary 
for determining the location of discharges with respect to 
intermittent/ephemeral streams and start reaches. As noted above, these 
water features from NHD have characteristics of non-navigable waters. 
EPA estimates that over 40 percent of the 37,000 permits with 
locational data discharge into either start reaches or intermittent/
ephemeral streams, excluding Alaska. Approximately 28 percent of these 
discharges are from municipal sewage treatment systems, systems that 
treat domestic sewage as well as wastewater from commercial and 
industrial users. The other 72 percent include an array of discharges 
from over 500 industrial categories, ranging from elementary and 
secondary schools to petroleum refining to industrial organic chemical 
facilities. The discharges covered by this estimate represent most of 
the individual discharges but do not include the much larger number of 
discharges covered by storm water and non-storm water general permits 
(permits that cover multiple, typically smaller, discharges, for which 
EPA lacks sufficient locational data). These data also are consistent 
with data submitted by States commenting in response to the ANPRM.
    We have also developed a preliminary estimate of public drinking 
water system intakes receiving water from start reaches or ephemeral/
intermittent streams, based on NHD data and information regarding 
source water protection areas (SWPAs). Preliminary estimates indicate 
that over 85 percent of identified SWPAs (for surface water intakes 
used us a drinking water source) included start reaches, and 
approximately 60 percent contain intermittent/ephemeral streams. In 
total, over 90 percent of surface water protection areas contain start 
reaches or intermittent/ephemeral streams. Public drinking water 
systems which use these intakes (as well as other sources) are 
estimated to provide drinking water to over 110 million people. Of the 
over 14,000 public water supply systems using surface waters, RPA has 
located (on the NHD) and mapped SWPAs for over 7,400 intakes (excluding 
Alaska but including Puerto Rico) serving 5, 646 public water supply 
systems. For the purposes of this analysis, SWPAs encompass the 
drainage area of up to 15 miles upstream from a drinking water intake, 
and any SWPA that contains at least one start. reach or intermittent/
ephemeral stream is included in the count. Please note that this 
analysis is preliminary, but nonetheless illustrates the important 
relationship between public health and the water quality of headwater, 
intermittent, and ephemeral streams.
    EPA remains committed to the protection of aquatic resources under 
the CWA. AS you know , President Bush announced an aggressive new 
national goal to move beyond no net loss of wetlands in America to 
achieve an overall increase of the Nation's wetlands. The President's 
challenge is to restore, improve and protect at least three million 
additional acres of wetlands over the next 5 years. For the President's 
Initiative, EPA committed to restore 6,000 acres of wetlands by 2009 
and to improve 6,000 acres of wetlands by 2009. We are currently 
putting together a tracking and reporting system to measure progress 
towards these goals. Thank you again for your interest in these cases. 
If you have further questions, please feel free to contact me or call 
Dave Evans, Director of the Wetlands Division, at (202) 566-0535.

    Benjamin H. Grumbles Assistant Administrator
                               __________
 Statement of Benjamin H. Grumbles, Assistant Administrator for Water 
   U.S. Environmental Protection Agency and John Paul Woodley, Jr., 
Assistant Secretary of the Army for Civil Works, Department of the Army

    Good afternoon, Mr. Chairman and members of the committee. We 
welcome the opportunity to present joint testimony to you today on 
issues concerning Clean Water Act (CWA) jurisdiction over waters of the 
United States. Our testimony will address the status of Federal 
jurisdiction in light of the Supreme Court ruling in Rapanos v. United 
States and Carabell v. United States. In particular, our testimony will 
provide background information on our agencies' roles and 
responsibilities under the CWA, summarize the Rapanos and Carabell 
decision, and discuss the steps our two agencies are undertaking to 
ensure all CWA programs, including section 404, are implemented in a 
manner consistent with the CWA.

               OVERVIEW OF ADMINISTRATION WETLANDS POLICY

From ``No-Net-Loss'' to Net Gain of Wetlands
    President Bush established, on Earth Day 2004, a national goal to 
move beyond ``no net loss'' of wetlands and to attain an overall 
increase in the quantity and quality of wetlands in America. 
Specifically, the President established a goal to increase, improve, 
and protect three million acres of wetlands by 2009. Since the 
President announced this objective, EPA, the corps, the U.S. Department 
of Agriculture (USDA), and the Department of Interior (DOI) have 
restored, created, protected or improved 1,797,000 acres of wetlands. 
We now have 588,000 acres of wetlands that did not exist in 2004, we 
have improved the quality of 563,000 wetland acres that already 
existed, and we have protected the high quality of 646,000 acres of 
existing wetlands.
    These accomplishments were achieved by assuring no net loss of 
wetlands through the regulatory requirements of the 404 program, and 
also through Federal agency conservation programs, including those 
administered by EPA, the corps, USDA, DOI, and the Department of 
Commerce.
    To sustain this commitment to wetlands conservation, the 
President's 2007 budget proposes $403 million, an increase of $153 
million over the 2006 level, to enroll 250,000 acres into the USDA's 
Wetlands Reserve Program (WRP). This program is crucial to the 
President's national wetlands initiative and, if enacted, the budget 
request would enable an annual enrollment of 250,000 acres, an increase 
of 100,000 acres over fiscal year 2006, and would bring total 
cumulative enrollment to more than 2.2 million acres. In addition, 
restored wetlands enrolled in the USDA's Conservation Reserve Program 
reached 2 million acres as of June, 2006. These restored wetlands are 
the result of several initiatives, including the 500,000 acre 
Bottomland Hardwood Timber Initiative and the new 250,000 acres Non- 
Floodplain Wetland Restoration Initiative.
    Congress is an essential partner in the President's conservation 
agenda, and we look forward to continuing our collaboration with you 
towards reaching our wetlands goals.
    Equally necessary to our continued commitment to wetlands 
conservation is the 404 regulatory program. Congress enacted the CWA 
``to restore and maintain the chemical, physical, and biological 
integrity of the nation's waters'', including wetlands, through 
programs such as section 404. Wetlands are among the Nation's most 
valuable and productive natural resources, providing a wide variety of 
functions. They help protect water quality, reduce downstream flooding 
by storing flood waters, maintain flows and water levels in traditional 
navigable waters during dry periods, support commercially valuable 
fisheries, and provide primary habitat for wildlife, fish, and 
waterfowl. Wetlands are at the core of this country's rich natural 
heritage and are central to its healthy, prosperous future.
    Since 1990, it has been the goal of the Environmental Protection 
Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to achieve no 
net loss of wetlands in the section 404 program. Under section 404, any 
person planning to discharge dredged or fill material to waters of the 
U.S. must first obtain authorization from the corps (or a Tribe or 
State approved to administer the section 404 program), through issuance 
of an individual permit, or must be authorized to undertake that 
activity under a general permit. In practice, the vast majority of 
projects (95 percent in 2003) are authorized under general permits, 
which require less paperwork by the project proponent than an 
individual permit application. In terms of the section 404 program, the 
no net-loss goal is being accomplished through avoidance, minimization, 
and compensation for unavoidable impacts to aquatic resources. Corps' 
data show that we continue to achieve no net loss of wetlands in the 
404 regulatory program. However, it is only one of the tools in the 
Administration's efforts to achieve an overall increase in wetlands 
nationwide.
    In the 34 years since its enactment, the CWA section 404 program--
together with Swampbuster, ongoing public and private wetlands 
restoration programs, and active State, Tribal, local, and private 
protection efforts--has helped to prevent the destruction of hundreds 
of thousands of acres of wetlands and the degradation of thousands of 
miles of rivers and streams. The annual rate of wetland loss, from 
development as well as subsidence and other natural causes, is 
estimated to have been reduced from 460,000 acres per year in the 
1950's to 60,000 acres annually between 1986 and 1997, and recent data 
indicates that we are achieving an annual net gain in certain types of 
wetland acreage and continuing to reduce the net loss of other types.
EPA and Corps Responsibilities Under Section 404
    The EPA and the corps coordinate to implement the section 404 
program under the CWA, which regulates discharges of dredged or fill 
material, helping to protect wetlands and the aquatic environments of 
which they are an integral part, and maintain the environmental and 
economic benefits provided by these valuable natural resources.
    The corps is responsible for the day-to-day administration of the 
section 404 program, including reviewing permit applications and 
deciding whether to issue or deny permits. Annually, the corps staff 
makes approximately 100,000 jurisdictional determinations, and reviews 
more than 80,000 individual permits and general permit authorizations. 
EPA comments on these permits as part of the public interest review 
process. EPA's role under CWA section 404 includes coordinating with 
States or Tribes that choose to administer the section 404 program, 
interpreting statutory exemptions from the permitting requirement, and 
sharing enforcement responsibilities with the corps. EPA also develops 
and implements, in consultation with the corps, the section 404(b)(1) 
guidelines, which are the environmental criteria that the corps applies 
when deciding whether to issue section 404 permits.
    In addition to its activities under section 404, EPA coordinates 
implementation of numerous other CWA provisions that involve ``waters 
of the United States.'' For example, EPA and approved States and Tribes 
issue permits under section 402 for discharges of pollutants other than 
dredged and fill material, and EPA reviews and approves water quality 
standards developed by approved States and Tribes under CWA Section 
303.

Cooperative Implementation of Section 404 and Wetlands Protection
    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 corps and EPA have concluded 
a number of written agreements to further these cooperative efforts in 
a manner that promotes predictability, consistency, and effective 
environmental protection. For example, on March 28, 2006, the U.S. Army 
Corps of Engineers and EPA published a proposed set of new standards to 
promote ``no net loss'' of wetlands and streams. This proposed 
``mitigation rule'' represents a collaborative effort between the corps 
and EPA to develop a consistent set of science-based standards to 
compensate for unavoidable impacts to wetlands, streams, and other 
aquatic resources. The rule establishes a single set of standards that 
all forms of compensation must satisfy, and that is based on better 
science, increased public participation, and innovative market-based 
tools.
    Implementation of the comprehensive, multi-agency Mitigation Action 
Plan (MAP) [December, 2004] and the Mitigation Regulations will improve 
the ecological performance and results of compensatory mitigation, and 
we are committed to ensuring that these two complementary efforts work 
together. To that end, we are making adjustments to some of the 
timelines for release of remaining MAP guidance documents to ensure 
that they are in harmony with the mitigation rule. The public comment 
period closed on the proposed mitigation rule on June 30, 2006, and the 
agencies are in the process of reviewing comments.
    Intergovernmental cooperation extends well beyond EPA and the 
corps. An important component of successful implementation of the CWA 
section 404 program is a close working relationship with States and 
Tribes. States and Tribes may assume operation of the section 404 
program, and to date two have done so (Michigan and New Jersey). Many 
States and Tribes have chosen to protect wetlands under State/Tribal 
law, while working cooperatively with the Federal agencies without 
formally assuming the 404 program.
    The Administration remains committed to a strong Federal-State 
partnership to protect the Nation's waters. Annually, EPA has awarded 
an average of $15 million to help enhance existing or develop new 
wetlands protection programs at the State, Tribal, and local levels. 
The Bush administration has asked Congress to appropriate an additional 
$1 million for these important programs as part of its fiscal year 2007 
budget request.
    In addition to the grants mentioned above, EPA provides funding 
assistance for a variety of CWA programs involving wetlands and other 
waters. For example, EPA awards grants to States and Tribes to 
implement projects and programs to reduce ``nonpoint'' sources of 
pollution, to support approaches of controlling stormwater and other 
``wet weather flows,'' and to reduce and prevent pollution of specific 
waters such as the Great Lakes and the Chesapeake Bay. The Agency also 
advances the President's Cooperative Conservation agenda through 
collaborative efforts such as the 5 Star Grants Program and the 
National Estuaries Program.

             SUPREME COURT DECISION IN RAPANOS AND CARABELL

    The judgment of the Supreme Court was to vacate and remand both 
cases for further proceedings. In summary, four Justices, in a 
plurality opinion authored by Justice Scalia, concluded that ``the 
lower courts should determine . . .  whether the ditches or drains near 
each wetland are `waters' in the ordinary sense of containing a 
relatively permanent flow; and (if they are) whether the wetlands in 
question are `adjacent' to these `waters' in the sense of possessing a 
continuous surface connection that creates the boundary-drawing problem 
we addressed in Riverside Bayview.'' 126 S. Ct. at 2235. Justice 
Kennedy, who concurred in the judgment of the Court, established a 
different test, concluding that the cases should be vacated and 
remanded to determine ``whether the specific wetlands at issue possess 
a significant nexus with navigable waters.'' Id. at 2252. Chief Justice 
Roberts joined in the plurality opinion and also wrote a concurring 
opinion. Justice Stevens, in a dissenting opinion in which Justices 
Souter, Ginsburg, and Breyer joined, would have affirmed the decisions 
by the lower courts. Justice Breyer also wrote a separate dissenting 
opinion.
    The plurality opinion, authored by Justice Scalia, first concluded 
that the petitioner's argument that the terms ``navigable waters'' and 
``waters of the United States'' are limited to waters that are 
navigable in fact ``cannot be applied wholesale to the CWA.'' Id. at 
2220. Citing CWA Section 502(7) and 404(g)(1), Justice Scalia opined 
that ``the Act's term `navigable waters' includes something more than 
traditional navigable waters.'' Id. Then, after reviewing the statutory 
language, the plurality concluded that ``waters of the United States,'' 
includes ``relatively permanent, standing or flowing bodies of water. 
The definition refers to water as found in `streams,' `oceans,' 
`rivers,' `lakes,' and `bodies' of water `forming geographical 
features.''' Id. at 2221 (citation omitted). The phrase does not 
include ``ordinarily dry channels through which water occasionally or 
intermittently flows.'' Id. The corps' interpretation of the term ``the 
waters of the United States,'' the plurality concluded, was not based 
on a permissible construction of the statute.
    Justice Scalia elaborated on this test in footnotes. He stated:
    By describing ``waters'' as ``relatively permanent,'' we do not 
necessarily exclude streams, rivers, or lakes that might dry up in 
extraordinary circumstances, such as drought. We also do not 
necessarily exclude seasonal rivers, which contain continuous flow 
during some months of the year but no flow during dry months-such as 
the 290-day, continuously flowing stream postulated by Justice Stevens' 
dissent. . . .
    It suffices for present purposes that channels containing permanent 
flow are plainly within the definition, and that the dissent's 
``intermittent'' and ``ephemeral'' streams . . . that is, streams whose 
flow is ``[c]oming and going at intervals. . .  [b]roken, fitful,'' . . 
. or ``existing only, or no longer than, a day; diurnal . . . short 
lived'' . . . are not. Id. at 2221 n.5 (citations omitted).
    The plurality then examined the factor of the adjacency of the 
wetlands under review to ``waters of United States.'' Justice Scalia 
concluded that ``only those wetlands with a continuous surface 
connection to bodies that are `waters of the United States' in their 
own right, so that there is no clear demarcation between `waters' and 
wetlands, are `adjacent to' such waters and covered by the Act. 
Wetlands with only an intermittent, physically remote hydrologic 
connection to `waters of the United States' do not implicate the 
boundary-drawing problem of Riverside Bayview, and thus lack the 
necessary connection to covered waters that we described as a 
`significant nexus' in SWANCC.'' Id. at 2226 (citation omitted and 
emphasis in original).
    In response to arguments that this opinion would ``frustrate 
enforcement against traditional water polluters [under CWA sections 301 
and 402] . . . '' the plurality concluded: ``That is not so.'' Id. at 
2227. The plurality went on to say that ``from the time of the CWA's 
enactment, lower courts have held that the discharge into intermittent 
channels of any pollutant that naturally washes downstream likely 
violates [section 301], even if the pollutants discharged from a point 
source do not emit `directly into' covered waters, but pass `through 
conveyances' in between.'' Id. (citation omitted).
    Justice Kennedy did not join the plurality's opinion, but instead 
authored an opinion concurring in the judgment. He agreed with the 
plurality that the statutory term ``waters of the United States'' 
extended beyond water bodies that are navigable-in-fact. Justice 
Kennedy, however, concluded that wetlands are ``waters of the United 
States'' where ``the wetlands, either alone or in combination with 
similarly situated lands in the region, significantly affect the 
chemical, physical, and biological integrity of other covered waters 
more readily understood as `navigable.''' Id. at 2248. The concurrence 
by Justice Kennedy stated, in relevant part, that ``[a]s applied to 
wetlands adjacent to navigable-in-fact waters, the corps' conclusive 
standard for jurisdiction rests upon a reasonable inference of ecologic 
interconnection, and the assertion of jurisdiction for those wetlands 
is sustainable under the Act by showing adjacency alone.'' Id. With 
respect to wetlands adjacent to nonnavigable tributaries, Justice 
Kennedy explained that: ``[a]bsent more specific regulations, . . . the 
corps must establish a significant nexus on a case-by-case basis[.]'' 
Id. at 2249.
    Justice Kennedy did not agree with the plurality's interpretation 
of ``waters of the United States'' and agreed with the dissent ``that 
an intermittent flow can constitute a stream. . . . It follows that the 
corps can reasonably interpret the Act to cover the paths of such 
impermanent streams.'' Id. at 2243 (citation omitted).
    In his concurring opinion, Chief Justice Roberts wrote that ``[i]t 
is unfortunate that no opinion commands a majority of the Court on 
precisely how to read Congress' limits on the reach of the Clean Water 
Act. Lower courts and regulated entities will now have to feel their 
way on a case-by-case basis. This situation is certainly not 
unprecedented. See Grutter v. Bollinger, 539 U.S. 306, 325. . .  (2003) 
(discussing Marks v United States, 430 U.S. 188. . . . (1977)).'' 126 
S. Ct. at 2236.
    The four dissenting Justices would have affirmed the lower courts' 
opinions and upheld the corps' exercise of jurisdiction in these cases 
as reasonable. Justice Stevens also concluded: ``In these cases, 
however, while both the plurality and Justice Kennedy agree that there 
must be a remand for further proceedings, their respective opinions 
define different tests to be applied on remand. Given that all four 
Justices who have joined this opinion would uphold the corps' 
jurisdiction in both of these cases-and in all other cases in which 
either the plurality's or Justice Kennedy's test is satisfied-on remand 
each of the judgments should be reinstated if either of those tests is 
met.'' Id. at 2265.
    The Department of Justice testimony will elaborate further on the 
effect of the Supreme Court Decision.

   STEPS TO CLARIFY CWA JURISDICTION AFTER THE RAPANOS AND CARABELL 
                                DECISION

The Rapanos and Carabell decision has important implications for 
        administration of the CWA.
    The United States will fully implement the CWA consistent with the 
Rapanos and Carabell decision. The Agencies are working closely with 
the U.S. Department of Justice to interpret the decision and its 
impacts on the scope of ``waters of the United States'' protected under 
the CWA. In particular, we are working on joint EPA/corps guidance 
clarifying CWA jurisdiction in light of the Rapanos and Carabell 
decision. It is our hope that the guidance moves us beyond disagreement 
over how widely we assert jurisdiction, and toward an agreement on how 
effective we are in protecting wetlands that provide ecological and 
social benefits. The development of guidance should not be about bigger 
or smaller jurisdiction but about better results.
    In the meantime, our field staff continues to administer CWA 
programs. To ensure consistent interpretation of the scope of ``waters 
of the U.S.'' in light of Rapanos and Carabell, EPA and the corps 
issued immediate guidance to field staff shortly after the decision, 
indicating that: the field staff should continue to process permit 
authorizations; to the extent circumstances permit, the field staff 
should temporarily delay making jurisdictional calls beyond the limits 
of the traditional section 10 navigable waters; and where delays are 
not possible and permit actions require taking a position on CWA 
jurisdictional scope, such determinations should be deferred, where 
possible, until further guidance is provided by Headquarters of both 
agencies.
    In summary, EPA and the corps are working quickly to develop 
interim guidance regarding the tests defined by the Supreme Court in 
the Rapanos/Carabell decision, in order to provide clarity for the 
public and to ensure consistency among CWA jurisdictional 
determinations nationwide.

                               CONCLUSION

    The agencies remain fully committed to protecting all CWA 
jurisdictional waters 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. Our goal in moving 
forward is to clarify what waters are properly subject to CWA 
jurisdiction in light of the Rapanos/Carabell decision and afford them 
full protection through an appropriate focus of Federal and State 
resources in a manner consistent with the Act. Working collaboratively 
and in cooperation with the Department of Justice, EPA and the corps 
will continue to assess CWA jurisdiction in light of Rapanos/Carabell 
issuing additional guidance and refinements as appropriate. We also 
wish to emphasize that although the Rapanos/Carabell decision and our 
testimony today focus on Federal jurisdiction pursuant to the CWA, 
other Federal or State laws and programs continue to protect waters and 
wetlands that may no longer be jurisdictional under the CWA following 
these decisions.
    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.
                                 ______
                                 
      Responses by Benjamin Grumbles to Additional Questions from 
                             Senator Chafee

    Question 1. While I understand informal guidance has been issued by 
the corps and EPA on the Rapanos/Carabell cases, how quickly does the 
Administration expect to release formal guidance addressing the Supreme 
Court's ruling? Would you provide this subcommittee with some 
indication of what will be in this guidance?
    Response. EPA and the corps are coordinating now to prepare 
guidance for our field offices to address the Supreme Court decision in 
Rapanos. The guidance will provide additional clarity to agency staff, 
regulated parties, states, and the public to ensure that jurisdictional 
determinations are consistent with the Rapanos decision. We will 
provide the Subcommittee on Fisheries Wildlife and Water with a copy of 
the guidance when it is completed.

    Question 2. In 2003, EPA and the corps issued guidance to their 
field staffs on how to implement the 404 program in accordance with 
SWANCC and lower court decisions interpreting SWANCC. Some groups 
believe that the corps and EPA took an unduly narrow approach in the 
2003 guidance, narrower than was required by SWANCC. How will the new 
guidance that EPA and the corps are developing in response to the 
Rapanos ruling affect the 2003 guidance?
    Response. We anticipate that the new guidance will focus only on 
issues raised by the Rapanos decision. The regulations at issue in 
Rapanos and Carabell were 33 CFR 328.3(a)(1), (a)(5), and (a)(7), not 
(a)(3) (the provision at issue in SWANCC).

    Question 3. Is there any specific type or category of tributaries 
or wetlands that you believe the agencies cannot continue to protect 
because of the Rapanos decision?
    Response. The agencies respectfully request to defer our answer to 
this question until we have completed our joint guidance addressing the 
Court's decision in Rapanos. We will provide a copy of that guidance to 
the Subcommittee when it is completed.

    Question 4. Earlier this year, you stated that EPA is putting 
together a tracking and reporting system to measure progress toward the 
President's commitment to restore 6,000 aces of wetlands and improve 
another 6,000 acres of wetlands by 2009. What is the status of that 
tracking and reporting effort?
    Response. The President's Earth Day 2004 Wetlands Initiative 
announced a performance-based goal to restore, enhance, and protect at 
least three million wetland acres over the next 5 years. In support of 
this goal, EPA and other Federal agencies have been coordinating 
closely with other Federal, State, Tribal, local, and private entities 
to track and report our progress in meeting this goal.
    Among the several Federal Agencies working to meet the President's 
wetlands goal, EPA's commitment is to achieve an increase of at least 
6,000 acres of restored wetlands and 6,000 acres of enhanced wetlands 
over the 5-year period. EPA is currently tracking progress against this 
commitment as part of the Office of Water's National Water Program 
Performance Reports. Under this measure EPA currently counts wetland 
acres restored or enhanced under Wetland Five Star Restoration Grants, 
the National Estuary Program, and CWA 319 nonpoint Source grants. The 
measure does not count acres restored or enhanced through enforcement 
or CWA 404 mitigation.
    At mid-year of fiscal year 2006, the cumulative total of acres 
restored or enhanced under EPA's programs since April 2004 was 97,940 
acres. These acres are included in The Council on Environmental 
Quality's April 2006 report, ``Conserving America's Wetlands 2006: Two 
Years of Progress Implementing the President's Goal,'' published in 
April 2006. The CEQ report indicates a total of 1.797 million acres of 
wetlands have been restored, improved, or protected in the United 
States since April 2004.

    Question 5. Many groups-especially States-worry about the 
implications of Rapanos and SWANCC for the geographic scope of sections 
of the Clean Water Act other than the Section 404 Program, that utilize 
the same jurisdictional phrase ``navigable waters''. The Oil Pollution 
Act uses the phrase as well. Justice Scalia's plurality opinion 
addresses this concern, saying that his opinion does not considerably 
reduce the scope of the 402 program (NPDES permit program) that is 
central to the Act. Do you agree that the plurality opinion does not 
affect the jurisdictional reach of 402, or other Clean Water Act 
provisions (such as Sections 301, 202, 309, 311, and 401), or are there 
still reasons for concern on this point?
    Response. The agencies respectfully request to defer our answer to 
this question until we have completed our joint guidance addressing the 
Court's decision in Rapanos. We will provide a copy of that guidance to 
the Subcommittee when it is completed.
                                 ______
                                 
      Responses by Benjamin Grumbles to Additional Questions from 
                             Senator Inhofe

    Question 1. Both the plurality and concurrence indicated that the 
application of the ordinary high water mark definition to determine 
upstream limits of jurisdiction has led the agencies to exceed the 
jurisdictional limits of the Clean Water Act. To determine the upstream 
limits, will you be revising the definition of ordinary high water 
mark, or will you be using a different test altogether?
    Response. The agencies respectfully request to defer our answer to 
this question until we have completed our joint guidance addressing the 
Court's decision in Rapanos. We will provide a copy of that guidance to 
the subcommittee when it is completed.

    Question 2. While a majority in the Rapanos case has rejected the 
use of the ordinary high water mark, I would like to ask a question 
about it because I think it shows just how far astray the corps has 
gone with its regulatory program. In its 2004 report, the GAO found 
that ``districts in the arid West developed a method for identifying 
the jurisdictional boundaries of dry channels that flood occasionally, 
expanding several times their normal size.'' How is this consistent 
with the ordinary high water mark, which according to numerous 
administrative documents and court cases does not include annual flood 
elevation or annual spring floods?
    Response. The agencies respectfully request to defer our answer to 
this question until we have completed our joint guidance addressing the 
Court's decision in Rapanos. We will provide a copy of that guidance to 
the subcommittee when it is completed.

    Question 3. Many desert drainages are just a few feet wide, carry 
water for only a few hours a year, and rarely, if ever, carry water to 
traditional navigable waters. Gage data maintained by Maricopa County, 
AZ from 1993 to 2000 shows that South Mountain Fan, a desert drainage 
in Phoenix, carried water for only 7 hours during the 7-year period. It 
is more than 100 miles from the Colorado River. Do you think such a 
feature should be regulated as ``water of the United States?'' Under 
what authority?
    Response. The agencies respectfully request to defer our answer to 
this question until we have completed our joint guidance addressing the 
Court's decision in Rapanos. We will provide a copy of that guidance to 
the subcommittee when it is completed.

    Question 4. Obtaining a Section 404 permit in Arizona has been made 
more difficult because EPA Region IX has been routinely objecting to 
the corps' permitting of large-scale, master-planned communities in 
Arizona. Region IX asserts that if any part of a project requires a 
Section 404 permit, then the entire project is federalized and requires 
the most time-consuming and costly of all environmental documentation 
under the National Environmental Policy Act, an environmental impact 
statement. The corps regulations say that the corps NEPA analysis 
should be limited to the part of the project that is subject to Federal 
control and responsibility. Do you believe that Federal agencies should 
be regulating the entire project?
    Response. The National Environmental Policy Act (NEPA) requires 
Federal agencies to integrate environmental values into their decision 
making processes by considering the environmental impacts of their 
proposed actions and reasonable alternatives to those actions. The NEPA 
process generally includes an evaluation of the environmental effects, 
direct, indirect and cumulative, of Federal actions. The public has an 
important role in this process. There are three levels of analysis 
depending on whether or not a Federal action could significantly affect 
the environment. These three levels include: categorical exclusion 
determination; preparation of an environmental assessment/finding of no 
significant impact (EA/FONSI); and preparation of an environmental 
impact statement/ record of decision (EIS/ ROD). If an Agency 
determines that the environmental effects of a proposed major Federal 
action will be significant, an EIS is prepared. As defined in the 
Council on Environmental Quality's regulations implementing NEPA at 40 
C.F.R. 1508.18, the term ```major Federal action' includes actions 
with effects that may be major [i.e. significant] and which are 
potentially subject to Federal control and responsibility.'' Thus, it 
is appropriate for the corps to prepare an EIS when its action, 
specifically issuance of a Federal permit under the 404 program, would 
have significant environmental impacts, direct, indirect or cumulative. 
This is a case-by-case inquiry.

    Question 5. Beside 33 C.F.R. 328.3(a)(1), is there any other 
category of ``water'' in the current definition of ``waters of the 
United States'' whose regulation will always be consistent with the 
governing rationale of Rapanos?
    Response. The agencies respectfully request to defer our answer to 
this question until we have completed our joint guidance addressing the 
Court's decision in Rapanos. We will provide a copy of that guidance to 
the subcommittee when it is completed.

    Question 6. EPA Region IX claims that ephemeral washes-shallow dirt 
paths in the desert-are ``Aquatic Resources of National Importance'' 
and are attempting to federalize all private development in the Arizona 
and Nevada deserts by blocking and delaying 404 permits. There is no 
EPA definition of an ephemeral wash yet, the EPA declares them all 
``wetlands'' necessary to preserve. With thousands of these washes in 
the desert does the EPA suggest that all private development should be 
managed by the Federal Government?
    Response. In light of the Supreme Court's decision in Rapanos, EPA 
and the corps will need to make case-by-case determinations whether a 
particular water body is a ``water of the United States'' under the 
Clean Water Act. For waters that are subject to Clean Water Act 
jurisdiction, the CWA 404 permitting process provides a mechanism for 
private development to go forward while ensuring that important aquatic 
resources, including wetlands, are protected.

    Question 7. Which regulations, if any, survive Rapanos? How does 
Rapanos affect these sections of the 33 CFR 328.3 regulation? (a)(5)--
tributaries (of other waters included in the definition) (a)(7)--
wetlands adjacent (to other waters included in the definition) (c)--the 
definition of ``adjacent'' (e)--the definition of ``ordinary high water 
mark''
    Response. The agencies respectfully request to defer our answer to 
this question until we have completed our joint guidance addressing the 
Court's decision in Rapanos. We will provide a copy of that guidance to 
the Subcommittee when it is completed.
                                 ______
                                 
      Responses by Benjamin Grumbles to Additional Questions from 
                            Senator Jeffords

    Question 1. During the hearing, I asked the following questions:
    Are wetlands important to water quality and flood control? Do 
pollutants flow downstream from small tributaries to larger bodies of 
water? When it rains in a normally dry area, as it did in Phoenix, AZ 
last week, are the contents of dry streambeds carried downstream with 
the rainwater?
    Your responses were yes, yes, and it depends. Can you please 
elaborate on each response, and for my last question can you provide a 
complete description of a situation in which a pollutant located in a 
dry streambed would not be carried downstream with rainwater?
    Response 1a. Yes, adjacent wetlands provide a variety of different 
functions ``in place,'' the benefits of which are realized in the 
immediately surrounding landscape, but which also have repercussions 
for the integrity of waters downstream. Among the most prominent of 
these are flood control and augmentation of water quality. The 
immediate effects of floodwater detention within a given hydrologic 
regime are felt most clearly immediately downstream of the detention, 
so wetlands that detain floodwaters protect areas immediately 
downstream; as these effects are aggregated across a large landscape 
they gain greater importance for mitigation of flood flows in 
navigable-in-fact waters. The same may be said of wetlands' ability to 
augment water quality. For an individual wetland, this is most 
pronounced, for example, where it lies immediately upstream of a 
drinking water intake. But in the aggregate, such wetlands can have 
increasingly important effects on the quality of downstream waters.
    The functions of individual wetlands are due in part to their 
interaction with adjacent lands and other wetlands; flood control and 
water quality functions are determined by number, extent, and position 
of wetlands within the watershed. Wetlands improve water quality by 
accumulating nutrients, trapping sediments, and transforming a variety 
of substances. In many watersheds, wetlands receive dissolved and 
suspended compounds and materials from larger areas; therefore they may 
have a disproportionate effect on water quality.
    Riverine wetlands retain runoff waters that contribute to flood 
peaks, mostly because of their location adjacent to a stream. These 
wetlands retain surface, subsurface, and/or groundwater that originates 
from upland areas, gradually releasing it to streams, which can be 
important for maintaining baseflow. Headwater wetlands are important 
for regulating water flow to downstream rivers. Peak flows in a stream 
are directly related to the total amount of wetland within the 
watershed, or the amount of wetlands in headwaters of that watershed. 
In other words, fluctuations are moderated by presence of wetlands 
which provide flood storage capacity, and headwater wetlands are in the 
best position to control flooding. A watershed that has fewer wetlands 
may be subject to more intense peak flows because of less wetland flood 
storage capacity.
    Wetlands located next to surface waters improve water quality by 
trapping sediments, removing nitrogen, removing other nutrients, and 
trapping sediments laden with phosphorous because they receive water 
before it reaches the stream channel. Such wetlands provide important 
functions for natural improvement of water quality because of their 
ability to filter water and transform chemical compounds in water.
    Response 1b. In general, pollutants are able to flow downstream 
from small tributaries to larger bodies of water. For example, 
downstream water quality is influenced by headwater--first and second 
order--streams because headwaters are among the sources that feed large 
streams, rivers, and lakes. This close connection means that degraded 
water quality is transported downstream as water from impacted 
headwaters flows into larger streams, rivers, and lakes within the 
watershed, affecting the water quality of these downstream water 
bodies. While it may be true that an individual headwater stream may 
not significantly impact downstream water quality, the cumulative 
effects of many degraded headwater streams within a single watershed 
are often ecologically important.
    As discussed below, there may be certain instances where pollutants 
do not flow downstream, depending on volume of flow and the qualities 
of the pollutant.
    Response 1c. Based upon the information above, in most cases 
pollutants deposited in a dry stream bed will move downstream during 
flow events. However, the ability of rainwater to carry contents (i.e., 
pollutants) of a dry stream downstream depends upon the volume of flow 
and the qualities of the pollutant in the stream bed. For example, if 
the pollutant is a large dense material that would not be able to be 
carried by the volume of flow, it will remain in the stream bed unless 
influenced by other conditions (such as a change in bed slope, etc.). 
In addition, if the precipitation event is not enough to generate 
surface flow in an ephemeral stream, such an event will not result in 
movement of pollutants in a streambed.

    Question 2. When the EPA issued your Advanced Notice of Proposed 
Rulemaking in 2003, in addition to asking whether the regulations 
should define ``isolated waters'', the EPA also invited views ``as to 
whether any other revisions are needed to the existing regulations on 
which waters are jurisdictional under the CWA.'' At the time, I was 
assured that this was standard language that EPA included in almost 
every ANPRM, that the scope of the rulemaking was narrow. I was quite 
surprised, therefore, when I read in Justice Roberts' concurring 
opinion, the following footnote, attempting to refute Justice Stevens' 
assertion that the EPA ANPRM was narrow, limited to questions about 
jurisdiction over isolated, intrastate, non-navigable waters. Justice 
Roberts' states, ``The scope of the proposed rulemaking was not as 
narrow as Justice Stevens suggests, post, at 10, n. 4 (dissenting 
opinion). See 68 Fed. Reg. 1994 (2003) (``Additionally, we invite your 
views as to whether any other revisions are needed to the existing 
regulations on which waters are jurisdictional under the CWA'')''. This 
interpretation of this phrase directly contradicts the EPA's 
description of the intent of this rulemaking. Justice Stevens' 
description of the facts is completely consistent with the explanation 
I received from EPA at the time. Was the ANPRM issued by the 
Administration in response to SWANCC of narrow intent, as explained to 
me at the time, or was the ANPRM issued by the Administration of broad 
intent, as misinterpreted by Justice Roberts? Given the 
misinterpretation of the Agency's use of this phrase in the ANPRM in 
this case by Justice Roberts, will the EPA eliminate the use of this 
language from its standard parlance in ANPRM documents in the future?
    Response 2a. EPA published an Advance Notice of Proposed Rulemaking 
in the Federal Register on January 15, 2003, (68 FR 1991) ``in order to 
obtain early comment on issues associated with the scope of waters that 
are subject to the Clean Water Act (CWA), in light of the U.S. Supreme 
Court decision'' in SWANCC. The ANPRM posed two specific questions on 
which it solicited comments: whether links to interstate commerce 
provide a basis for determining CWA jurisdiction over isolated, 
intrastate, non-navigable waters, and whether and the agencies should 
define ``isolated waters'' in regulation. While the ANPRM focused on 
the implications of SWANCC, to ensure that all potential jurisdictional 
issues raised by the SWANCC decision were subject to public input, EPA 
invited comment more broadly on its regulations defining ``waters of 
the United States.'' EPA's statements to you were accurate that the 
intent of the ANPRM was narrow, and focused on the questions about 
jurisdiction over isolated, intrastate, non-navigable waters, 
notwithstanding the opportunity provided the public to comment on 
issues beyond those specifically posed in the ANPRM.
    Response 2b. When EPA chooses to seek early public input through an 
ANPRM, we try to ensure that the public is able to comment on all 
potential issues it believes may be relevant to the matter on which the 
Agency seeks input. The purpose of an ANPRM is not to propose for 
comment an Agency position, but rather to specify issues on which the 
agency wants and needs the views of and data from interested 
stakeholders and the general public. Therefore, in some cases, it is 
appropriate to use language like that used in the SWANCC ANPRM to 
ensure that commenters will consider and provide input on the issues 
raised by the ANPRM questions as well as additional issues they think 
are relevant. In contrast, in a notice proposing actual regulatory 
revisions (i.e., a Notice of Proposed Rulemaking), the issues on which 
comment is sought are narrowed to those specific regulations the Agency 
proposes to revise.

    Question 3. You spoke about the President's goal to, ``. . . move 
beyond `no net loss' of wetlands and to attain an overall increase in 
the quantity and quality of wetlands in America.'' The term ``overall 
increase'' means that more wetlands are created per year than are 
destroyed. Missing from the Administration's 2006 wetlands report is 
the number of acres of wetlands that were destroyed or compromised 
during the period measured in the report. How many acres of wetlands 
were destroyed or compromised between 2004 and 2006?
    Response. The Corps of Engineers is charged with the day-to-day 
administration of the CWA section 404 permit program. According to 
corps' estimates, during fiscal year 2005 applicants requested 
authorization to impact more than 30,000 acres of wetlands. For this 
same period, final Department of the Army permits authorized applicants 
to impact approximately 20,000 acres of jurisdictional waters, 
resulting in avoidance of more than 10,000 acres of wetlands due to 
efforts of the corps permit managers to work with applicants to avoid 
and minimize impacts. In addition, the corps required applicants to 
provide more than 56,000 acres of wetlands to compensate for the 
unavoidable, permitted impacts. The corps requires greater than 1:1 
mitigation ratios to insure mitigation success to meet the no net loss 
goal.

    Question 4. Mr. Grumbles, what does the EPA plan to do to ensure 
continued protections for the nation's waters in the wake of the 
Rapanos/Carabell decision?
    Response. 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, and we expect this cooperative approach 
to continue as we implement the Clean Water Act as interpreted by the 
Rapanos decision.
    In this regard, the corps and EPA have concluded a number of 
written agreements to further these cooperative efforts in a manner 
that promotes predictability, consistency, and effective environmental 
protection. For example, on March 28, 2006, the U.S. Army Corps of 
Engineers and EPA published a proposed set of new standards to promote 
``no net loss'' of wetlands and streams. This proposed ``mitigation 
rule'' represents a collaborative effort between the corps and EPA to 
develop a consistent set of science-based standards to compensate for 
unavoidable impacts to wetlands, streams, and other aquatic resources. 
The rule establishes a single set of standards that all forms of 
compensation must satisfy, and that is based on better science, 
increased public participation, and innovative market-based tools.
    Intergovernmental cooperation extends well beyond EPA and the 
corps. An important component of successful implementation of the CWA 
section 404 program is a close working relationship with States and 
Tribes. States and Tribes may assume operation of the section 404 
program, and to date two have done so (Michigan and New Jersey). Many 
States and Tribes have chosen to protect wetlands under State/Tribal 
law, while working cooperatively with the Federal agencies without 
formally assuming the 404 program.
    The Administration remains committed to a strong Federal-State 
partnership to protect the Nation's waters. Annually, EPA has awarded 
an average of $15 million to help enhance existing or develop new 
wetlands protection programs at the State, Tribal, and local levels. 
The Bush administration has asked Congress to appropriate an additional 
$1 million for these important programs as part of its fiscal year 2007 
budget request. In addition to the grants mentioned above, EPA provides 
funding assistance for a variety of CWA programs involving wetlands and 
other waters. For example, EPA awards grants to States and Tribes to 
implement projects and programs to reduce ``nonpoint'' sources of 
pollution, to support approaches of controlling stormwater and other 
``wet weather flows,'' and to reduce and prevent pollution of specific 
waters such as the Great Lakes and the Chesapeake Bay. The Agency also 
advances the President's Cooperative Conservation agenda through 
collaborative efforts such as the 5 Star Grants Program and the 
National Estuaries Program.

    Question 5. Mr. Grumbles, the Clean Water Authority Restoration Act 
would take the EPA's and corps' definition of ``waters'' and add it to 
the statute. Wouldn't this bill have essentially the same effect as the 
position taken by the administration in Court?
    Response. The Administration has not stated a position regarding 
the Clean Water Authority Restoration Act. Similarly, EPA has not 
assessed how the Clean Water Authority Restoration Act relates to the 
legal arguments made in court. The Agencies appreciate the interest 
that the bill's cosponsors have in strong protection of the Nation's 
aquatic resources.

    Question 6. Mr. Grumbles, it seems inevitable that the Rapanos-
Carabell decision will affect Clean Water Act programs other than 
wetlands. I understand there is already one case in court challenging 
the scope of the Agency's oil spill prevention and liability program 
under section 311 based on the Supreme Court's decisions. What are the 
implications of the Rapanos-Carabell decision for all of the other 
Clean Water Act programs administered by your Agency?
    Response. The agencies respectfully request to defer our answer to 
this question until we have completed our joint guidance addressing the 
Court's decision in Rapanos. We will provide a copy of that guidance to 
the subcommittee when it is completed.

    Question 7. During the hearing, I inquired as to the jurisdictional 
status of Lake Champlain and its tributaries post-Rapanos-Carabell. You 
indicated that you did not know if the jurisdictional status of the 
Lake and its tributaries had changed, and that you would provide an 
answer for the record. Please indicate if the jurisdictional status of 
Lake Champlain and its tributaries has changed post-Rapanos-Carabell.
    Response. Clean Water Act jurisdiction over Lake Champlain, as an 
interstate water that is ``traditionally navigable,'' as courts have 
interpreted this term, is unaffected by the Supreme Court decision in 
Rapanos. Regarding jurisdiction over tributaries to Lake Champlain, it 
would be necessary to gather additional facts about each tributary in 
order to make a determination regarding potential effects in light of 
Rapanos.

    Question 8. In April, the EPA issued its first Wadeable Streams 
assessment, focusing specifically on streams that could be measured 
without a boat. You found that 42 percent of such streams nationwide 
are impaired. In January of 2005, the EPA wrote a letter suggesting 
that about 53 percent of all streams nationwide are non-navigable. 
Given this information, of the 42 percent of streams that are impaired, 
about how many would lose protections if the jurisdictional test in the 
Scalia opinion were to become the standard?
    Response. The Scalia test indicates that waters that are 
traditionally navigable or wetlands immediately adjacent are 
jurisdictional, as well as tributaries that are ``relatively 
permanent'' and wetlands that have a continuous surface connection to 
such waters. As discussed above, the joint EPA/corps guidance is still 
pending.
    As discussed in the January 9, 2006 letter, the extent of non-
navigable tributaries on a national scale is difficult to estimate 
because ``navigability'' and ``relatively permanent'' are not 
parameters included in national databases. For example, the NHD does 
not distinguish between navigable and non-navigable waters.

    Question 9. On June 1, the New England Regional Administrator of 
the EPA wrote an opinion piece entitled, ``Wetlands Can Help Reduce 
Flooding.'' It stated, ``. . .  one of the driest spring seasons in 
decades transformed into two weeks of heavy rainfall, causing major 
flooding--Can our natural environment keep pace with such extremes? The 
answer may be ``yes,'' so long as we keep wetlands around to help 
mitigate the effects of extreme weather.'' In a world where we are 
beginning to see the effects of global climate change, we are likely to 
be looking for mitigating actions in the near future. Mr. Grumbles, can 
you describe how wetlands can help mitigate the impacts of flooding?
    Response. Wetlands provide a variety of different functions ``in 
place,'' the benefits of which are realized in the immediately 
surrounding landscape, but which also have repercussions for the 
integrity of waters downstream. Among the most prominent of these is 
flood control. The immediate effects of floodwater detention within a 
given hydrologic regime are felt most clearly immediately downstream of 
the detention, so wetlands that detain floodwaters most clearly protect 
areas immediately downstream; it is as these effects are aggregated 
across a large landscape that they gain importance for mitigation of 
flood flows in navigable-in-fact waters.
    The ability of wetlands to reduce the impacts of floodwaters can 
also mitigate for excessive flows during times of flooding, allowing 
navigable-in-fact waters to constantly maintain their navigability. An 
analysis of the 1993 floods of the Mississippi River concluded that the 
excessive flow, caused in part by wetlands loss, contributed to severe 
disruptions in navigation along the Mississippi mainstem. Barge traffic 
was closed on the majority of mainstem rivers from July 11-August 15, 
1993, with severe limitations continuing until November of that year. 
The navigation industry lost an estimated $300 million per month, with 
Illinois alone losing more than $165 million, according to the 
Interagency Floodplain Management Review Committee report, ``Sharing 
the Challenge: Floodplain Management into the 21st Century'' 
(Washington, DC: Government Printing Office, 1994, p. 19).

    Question 10. Did the EPA approve the Army Corps guidance that 
restricts Clean Water Act jurisdiction to Section 10 of the Rivers and 
Harbors Act?
    Response. We are assuming that you are discussing the guidance to 
their respective field staffs that EPA and the corps issued shortly 
after the Rapanos decision. EPA and the corps coordinated the agencies' 
respective initial guidance to the field, and agreed that it would be 
best to delay new jurisdictional determinations outside the scope of 
traditionally navigable waters pending release of the Rapanos interim 
guidance. However, the corps' initial guidance called for continued 
issuance of new general and individual permits in order to minimize 
impacts to ongoing activities subject to regulation under Section 404, 
and noted that modifications could be made to such permits if 
appropriate following issuance of the interim guidance. The corps 
initial guidance did not indicate that CWA jurisdiction after Rapanos 
was limited to Section 10 waters.

    Question 11. What actions has the EPA taken to work with the Army 
Corps to implement the findings of the 2005 GAO report recommending 
that the corps require detailed rationales for non-jurisdictional 
decisions and finalize with EPA the additional guidance to help the 
districts make certain jurisdictional decisions?
    Response. Together, the EPA and the corps have been taking several 
steps to enhance data collection and other elements of program 
implementation. For example:

     The corps worked with EPA to create a reporting form to 
guide jurisdictional analysis and record the basis for determination.
     All CWA 404 jurisdictional determinations are required to 
be posted on the District web sites for public access.
      Based on 2 years of posted JD data and the Rapanos decision, the 
Agencies are updating the questions and developing a single form to 
document all jurisdictional decisions.

    Future guidance will continue to focus on improvements to 
documentation in response to these inconsistencies.
                                 ______
                                 
      Responses by Benjamin Grumbles to Additional Questions from 
                              Senator Bond

    Question 1. Provide and describe, if available, the statutory, 
regulatory or case law authority for Federal regulation of runoff.
    Response. The principal source of authority for EPA's regulation of 
storm water is section 402(p) of the Clean Water Act. 33 U.S.C. 
1342(p). Amendments to the CWA in 1987 added section 402(p), which 
directs EPA to implement, in two phases, a program for addressing storm 
water discharges. Section 402(p)(4) requires that EPA establish 
regulations setting forth permit application requirements for storm 
water discharges associated with industrial activity and municipal 
separate storm sewer systems serving populations of 100,000 or more. 
Section 402(p)(5) requires EPA to study additional classes of storm 
water discharges. Section 402(p)(6) directs EPA to issue regulations 
(based on the results of the studies under section 402(p)(5)) to 
designate additional classes of storm water discharges to be regulated 
to protect water quality and to establish a comprehensive program to 
regulate such designated sources. EPA's regulations governing storm 
water discharges are found at 40 C.F.R. 122.26, 122.30-122.37.
    EPA's ``Phase II'' storm water regulations were largely upheld by 
the United States Court of Appeals for the Ninth Circuit in 
Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir. 2003).
    EPA's storm water regulations were amended most recently on June 
12, 2006 in response to an amendment to the CWA passed in the Energy 
Policy Act of 2005. See, 71 Fed. Reg. 33628-33640.
    Under the CWA, EPA also regulates discharges from concentrated 
animal feeding operations (CAFOs) and land application areas under the 
control of CAFOs, which consist, in part, of storm water runoff. See. 
33 U.S.C. 1362(14), 1342. EPA's regulations governing discharges from 
CAFOs are primarily found at 40 C.F.R. 122.23 and 122.42(e). 
``Agricultural storm water discharges'' are not subject to permitting 
requirements under the CWA. See 33 U.S.C. 1362(14)

    Question 2. How, if available, is the Federal Government authorized 
to limit actions creating runoff where no runoff existed before? 
Example scenario: construction of a parking lot which has the effect of 
creating runoff. Please provide examples and descriptions of the 
Federal statutory and regulatory authority that would be used, examples 
of any applicable Federal guidance, determinations or case law, and any 
permitting process required to undertake the action.
    Response. EPA regulates the discharge of storm water through the 
NPDES permitting program under section 402 of the CWA. EPA does not, 
however, regulate land use decisions under the CWA. These decisions are 
generally covered by local ordinances or zoning codes. The NPDES storm 
water program covers discharges of storm water from municipal storm 
sewer systems, industrial facilities, and construction sites (generally 
those disturbing an acre or more of land).
    Under these three categories of discharges, runoff from individual 
parking lots is not regulated by the NPDES storm water program and 
individual parking lots would not require NPDES permits for the runoff 
flowing from them, except in limited instances where the storm water 
from the parking lot is a ``storm water discharge associated with 
industrial activity'' as that term is defined in 40 C.F.R. 
122.26(b)(14). Regarding construction of a parking lot, EPA 
regulations require the construction site operator to obtain an NPDES 
permit for storm water discharges occurring during the construction of 
the lot if one acre or more of land is disturbed. 40 CFR 
122.26(b)(14)(x) and 122.26(b)(15).
    EPA and authorized States do have the authority to permit other 
discharges: (1) for which storm water controls are needed based on 
wasteload allocations that are part of a total maximum daily load, (2) 
that contribute to a violation of a water quality standard, or (3) that 
are a significant contributor of pollutants to waters of the United 
States. 33 U.S.C. 1342(p)(2)(E); 40 C.F.R. 122.26(a)(9)(i)(C), (D).
    If a facility takes actions to create a storm water discharge that 
does not, in itself require an NPDES permit, but discharges storm water 
through a municipal separate storm sewer system (MS4) that is subject 
to NPDES requirements, there may be storm water control measures 
required by the MS4 operator that apply to the discharger. MS4 permits 
typically require the municipal permittee to implement storm water 
management programs to protect water quality. Such a municipal storm 
water management program may establish requirements for facilities that 
discharge storm water into the MS4.

    Question 3. How, if available, is the Federal Government authorized 
to limit actions allowing runoff where the potential runoff is 
currently blocked? Example scenario: removal or compromising of a 
physical barrier, such as a berm, adjacent to a parking lot, thereby 
allowing runoff from the parking lot. Please provide examples and 
descriptions of the Federal statutory and regulatory authority that 
would be used, examples of any applicable Federal guidance, 
determinations or case law, and any permitting process required to 
undertake the action.
    Response. As discussed above, section 402(p) of the CWA directs EPA 
to develop NPDES regulations for storm water discharges. The 
regulations EPA developed under section 402(p) require NPDES permits 
for certain classes of storm water discharges, including storm water 
discharges associated with industrial activity, storm water discharges 
from certain construction activities and discharges from many municipal 
separate storm sewer systems (MS4). If a facility takes actions to 
create a storm water discharge that is subject to the NPDES program, 
the discharge must be authorized by an NPDES permit and will be subject 
to the requirements of the permit. Additionally, EPA has authority to 
require NPDES permits for other storm water discharges that impact 
water quality. 33 U.S.C. 1342(p)(2)(E); 40 CFR 122.26(a)(9)(i)(C), 
(D).
    Similar to the scenario described in the previous question, if a 
facility discharges storm water through an MS4 that is subject to NPDES 
requirements, there may be storm water control measures required by the 
MS4 operator that apply to the discharger.

    Question 4. How, if available, are State or local Governments 
authorized to limit runoff as described above? Provide examples of such 
authority.
    Response. Forty-five States administer NPDES programs approved by 
EPA under CWA section 402(b). Such programs must have legal authority 
to implement provisions set forth in EPA's regulations. See 40 C.F.R. 
123.25. (States are not precluded from omitting or modifying 
provisions in EPA's regulations if they impose more stringent 
requirements.) Among the provisions in EPA's regulations that States 
must have legal authority to implement in an approved NPDES program is 
40 C.F.R. 122.26 Storm water discharges. See 40 C.F.R. 123.25(a)(9).
    States with approved programs, like EPA, have authority to require 
an NPDES permit where storm water controls are needed based on 
wasteload allocations that are part of a total maximum daily load, or 
for discharges that contribute to a violation of a water quality 
standard, or that are a significant contributor of pollutants to waters 
of the United States. 33 U.S.C. 1342(p)(2)(E); 40 C.F.R. 
122.26(a)(9)(i)(C), (D). Examples of the use of this designation 
authority include Connecticut's designation of all storm water 
discharges directly related to retail, commercial, and/or office 
services whose facilities occupy five acres or more of contiguous 
impervious surface; and Vermont's permit requirement for storm water 
discharges from existing and new development and redevelopment sites.
    Finally, EPA regulations require local Governments or other 
entities that operate large or medium MS4s to have adequate legal 
authority, under statute, ordinance or contract, to prohibit illicit 
discharges, control storm water discharges from industrial and other 
sources, carry out inspections, require compliance, and perform other 
functions. See 40 C.F.R. 122.26(d)(2)(i). Authority for controls 
implemented by small MS4 operators is similarly provided under State, 
tribal or local law. See, e.g., 40 C.F.R. 122.34(b)(3)(ii)(B).
                                 ______
                                 
    Responses by Benjamin H. Grumbles to Additional Questions from 
                           Senator Murkowski

    Question 1. Your testimony states that the EPA and corps are 
working on joint ``guidance'' clarifying Clean Water Act jurisdiction. 
That's an interesting term that suggests you are not moving forward on 
a formal rulemaking? Is that the case? And if so, why not proceed to 
rulemaking? Isn't this matter important enough to warrant the added 
certainty that would create?
    Response. The Agencies are considering the need for rulemaking in 
light of the Rapanos decision. At this time, the Agencies recognize the 
importance and urgency of providing clarity to our field staff and the 
public to ensure that jurisdictional determinations, administrative 
enforcement actions, and other relevant agency actions are consistent 
with the Rapanos decision. Our immediate focus is on providing this 
clarity in a timely manner.

    Question 2. Do you agree that wetlands that are frozen for a 
majority of the year, and which are underlain by permafrost, may serve 
different ecological and hydrological functions from more traditional 
unfrozen wetlands?
    Response. While frozen wetlands have a very different mixture of 
plant life than other wetlands, according to the National Research 
Council (NRC), permafrost wetlands often perform the same functions as 
other wetlands. The NRC writes, ``Furthermore, studies of the National 
Wetlands Working Group (1988) in Canada show that permafrost wetlands 
have the same functions as other kinds of wetlands. . . . permafrost 
wetlands do not differ in their essential characteristics from other 
wetlands.'' (National Research Council. 1995. Wetlands: Characteristics 
and Boundaries. Washington, DC: National Academy of Sciences, p. 152). 
The agencies have also recognized, however, that the specific 
circumstances that are present in Alaska are not found elsewhere in the 
United States and are working to ensure that implementation of the 
Federal wetlands program reflect these differences.

    Question 3. If the application of Federal permitting under the 
Clean Water Act is intended to control a contribution of pollutants to 
navigable waters, why should activities in a permafrost wetland where 
there can be no such contribution be under the same control?
    Response. While the functions performed by permafrost wetlands 
often are the same as other wetlands, the agencies do recognize that 
the circumstances in Alaska where permafrost wetlands are found, are 
different from those found elsewhere in the United States. The agencies 
are working to ensure that implementation of the Federal wetlands 
program in Alaska effectively reflects those circumstances.

    Question 4. Does it not make sense to regulate a particular parcel 
of land for the values it actually has, rather than the values that 
might be held by some other parcel of land in another location?
    Response. As discussed above, implementation of the CWA section 404 
program in Alaska reflects circumstances found in the State. For 
example, section 404 program implementation in Alaska reflects that it 
may not be practicable to provide compensatory mitigation through 
wetlands restoration or creation in areas where there is a high 
proportion of land which is wetland. In cases where potential 
compensatory mitigation sites are not available due to abundance of 
wetlands in a region, and a lack of enhancement or restoration sites, 
compensatory mitigation is not required under the section 404(b)(1) 
Guidelines that guide permitting decisions. Some section 404 program 
adaptations have been made to ensure effective public participation by 
all Alaskan communities. For example, announcements of potential permit 
actions and other section 404 program activities are translated into 
Native Alaskan languages so as to be able to better engage them in the 
public process associated with section 404.
                               __________
    Statement of John C. Cruden, Deputy Assistant Attorney General, 
 Environment and Natural Resources Division, U.S. Department of Justice

                              INTRODUCTION

    Chairman Chafee, Senator Clinton, and members of the subcommittee, 
thank you for inviting the Department of Justice to testify about a 
recent and important environmental case, Rapanos v. United States,--
U.S.--, 126 S. Ct. 2208 (2006), in which the Supreme Court addressed 
the jurisdictional scope of the Clean Water Act (CWA) in two 
consolidated cases, Rapanos v. United States, 376 F.3d 629 (6th Cir. 
2004) and Carabell v. United States Army Corps of Eng'rs, 391 F.3d 704 
(6th Cir. 2004). I am pleased to be joined by Benjamin Grumbles, the 
Assistant Administrator for Water, U.S. Environmental Protection 
Agency, and John Paul Woodley, Jr., Assistant Secretary of the Army for 
Civil Works. They will provide an overview of national wetlands 
protection policy under the CWA as well as EPA and Corps of Engineers 
responsibilities while I will focus more on litigation by the 
Department of Justice.
    I am the Deputy Assistant Attorney General, Environment and Natural 
Resources Division (ENRD or the Division), U.S. Department of Justice. 
The Division is responsible for representing the United States in 
litigation involving environmental and natural resources statutes, and 
wetlands litigation under the CWA is a part of our responsibilities. We 
defend Federal agencies when their administrative actions are 
challenged, and we also bring enforcement cases against individuals or 
entities that violate environmental and natural resources statutes. The 
Division has a docket of well over 7,000 pending cases and matters, 
with cases in nearly every judicial district in the Nation. We litigate 
cases arising from more than 70 different environmental and natural 
resources statutes.
    In this testimony, I will first provide a brief overview of our CWA 
docket, in particular those cases involving wetlands. I will then 
outline the statutory and U.S. Supreme Court background for the Rapanos 
decision, the position of the United States in that litigation, and the 
Supreme Court holding. I will then turn to what actions the Department 
of Justice has taken since the issuance of the decision, the standard 
of law we believe is applicable on remand of those two cases, and 
several key issues that might arise from the decision.
    As this subcommittee knows, however, the position of the United 
States in litigation is expressed in briefs we file with the courts. 
Our legal position must be tied to the facts and take into account the 
precedent within the jurisdiction in which we are litigating. In 
addition, because we litigate cases on behalf of the United States, we 
coordinate with potentially affected Federal agencies before we file a 
brief. Accordingly, although I will describe to you our preliminary 
thinking about this important decision issued over a month ago, my 
testimony should not be used in litigation in any particular case. 
Instead, the position of the United States in any particular case will 
be articulated in the context of that case.

               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. We 
frequently 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 may 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 be sued 
for discharging pollutants into waters of the United States if they 
have not complied with the applicable requirements of the CWA. In ENRD, 
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.
    ENRD also brings actions to enforce the CWA. Three sections in ENRD 
handle CWA enforcement actions. Civil enforcement cases are generally 
handled by our Environmental Enforcement Section, except wetlands 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 violation and 
whether the case is otherwise appropriate for judicial action. If we 
determine that judicial enforcement is warranted, we explore 
possibilities for achieving settlement of the alleged violations 
without litigation.
    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 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 in 2000. The 
process allows disputes over whether a site is subject to corps 
jurisdiction under the CWA (so-called ``jurisdictional 
determinations'') to be resolved before a matter gets to the point of 
potential litigation, which is when the Department of Justice would get 
involved. The Department also litigates cases regarding discharges into 
nonnavigable tributaries of navigable-in-fact waters.
    In sum, the Division, in conjunction with U.S. Attorney Offices 
across the nation, litigates CWA actions that involve the United 
States. The wetlands caseload is a portion of ENRD's case 
responsibilities. On average, we handle about 10-15 new wetlands 
enforcement cases each year on behalf of the EPA or the corps. In 
addition, there have been a few criminal cases involving wetlands.

        STATUTORY AND CASE LAW CONTEXT FOR THE RAPANOS DECISION

Clean Water Act and Regulations
    Congress enacted the CWA in 1972 ``to restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters'' 
as provided in section 101(a).\1\ One of the mechanisms adopted by 
Congress to achieve that purpose is a prohibition contained in section 
301(a) on the discharge of any pollutant, including dredged or fill 
material, into ``navigable waters'' except pursuant to a permit issued 
in accordance with the Act. The CWA defines the term ``discharge of a 
pollutant'' in section 502(12)(a) as ``any addition of any pollutant to 
navigable waters from any point source . . . .'' It defines the term 
``pollutant'' in section 502(6) to mean, among other things, dredged 
spoil, rock, sand, and cellar dirt. The CWA provides in section 502(7) 
that ``[t]he term `navigable waters' means the waters of the United 
States, including the territorial seas.'' \2\ While earlier versions of 
the 1972 legislation included the word ``navigable'' within that 
definitional provision, the Conference Committee deleted that word and 
expressed the intent to reject prior geographic limits on the scope of 
Federal water-protection measures. Compare S. Conf. Rep. No. 1236,92d 
Cong., 2d Sess. 144 (1972), with H.R. Rep. No. 91 1,92 Cong., 2d Sess. 
356 (1972) (bill reported by the House Committee provided that ``[t]he 
term `navigable waters' means the navigable waters of the United 
States, including the territorial seas'').
---------------------------------------------------------------------------
    \1\ The 1972 legislation extensively amended the Federal Water 
Pollution Control Act (FWPCA), which was originally enacted in 1948. 
Further amendments to the FWPCA, which were enacted in 1977, changed 
the popular name of the statute to the Clean Water Act. Pub. L. No. 95-
217,91 Stat. 1566; 33 U.S.C. 1251 note.
    \2\ For purposes of the Section 402 and 404 permitting programs, as 
discussed below, the current EPA and corps regulations implementing the 
CWA include substantively equivalent definitions of the term ``waters 
of the United States.'' The corps defines that term to include: (1) All 
waters which are currently used, or were used in the past, or may be 
susceptible to use in interstate or foreign commerce, including all 
waters which are subject to the ebb and flow of the tide; (2) All 
interstate waters including interstate wetlands; (3) All other waters 
such as intrastate lakes, rivers, streams (including internlittent 
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. . . 
;(4) All impoundment of waters otherwise defined as waters of the 
United States under the definition; (5) Tributaries of waters 
identified in paragraphs (a)(l) through (4) of this section; (6) The 
territorial seas; (7) Wetlands adjacent to waters (other than waters 
that are themselves wetlands) identified in paragraphs (a)(l) through 
(6) of this section. 33 C.F.R. 328.3(a); see 40 C.F.R. 230.3(s) (EPA). 
The regulations define the term ``wetlands'' to mean ``those areas that 
are inundated or saturated by surface or ground water at a frequency 
and duration sufficient to support, and that under normal circumstances 
do support, a prevalence of vegetation typically adapted for life in 
saturated soil conditions. Wetlands generally include swamps, marshes, 
bogs, and similar areas.'' 33 C.F.R. 328.3(b). The term ``adjacent'' is 
defined to mean ``bordering, contiguous, or neighboring,'' and the 
regulations state that ``[w]etlands separated from other waters of the 
United States by man-made dikes or bamers, natural river berms, beach 
dunes and the like are `adjacent wetlands.''' 33 C.F.R. 328.3(c).
---------------------------------------------------------------------------
    The CWA establishes two complementary permitting programs through 
which appropriate Federal or State officials may authorize discharges 
of pollutants from point sources into the waters of the United States. 
Section 404(a) of the CWA authorizes the Secretary of the Army, acting 
through the corps, to issue a permit ``for the discharge of dredged or 
fill material into the navigable waters at specified disposal sites.'' 
Under Section 404(g), the authority to permit certain discharges of 
dredged or fill material may be assumed by State officials. Pursuant to 
Section 402 of the CWA, the discharge of pollutants other than dredged 
or fill material (sewage, chemical waste, and biological materials) may 
be authorized by the EPA, or by a State with an approved program, under 
the National Pollutant Discharge Elimination System (NPDES) program.\3\
---------------------------------------------------------------------------
    \3\ Congress established a mechanism under Section 404(g)(l) by 
which a State may assume responsibility for administration of the 
Section 404 program with respect to ``the discharge of dredged or fill 
material into the navigable waters (other than those waters which are 
presently used, or are susceptible to use in their natural condition or 
by reasonable improvement as a means to transport interstate or foreign 
commerce . . . including wetlands adjacent thereto). . . .'' If the EPA 
Administrator approves a proposed State program, the corps is directed 
under Section 404(h)(2)(A) to ``suspend the issuance of permits . . . 
for activities with respect to which a permit may be issued pursuant to 
such State program. . . .'' Under a State-administered program, EPA and 
the corps retain authority under Section 404(h)(l)(D)-(F) to forbid or 
impose conditions upon any proposed discharge permit. EPA also retains 
enforcement authority under Sections 404(n) and 309 to issue compliance 
orders and commence administrative, civil, and criminal actions to 
enforce the CWA. A similar State authorization program exists for the 
NPDES program under Section 402(b) of the CWA.
---------------------------------------------------------------------------
U.S. Supreme Court Backdrop for the Rapanos Decision
    In United States v. Riverside Bawiew Homes, Inc., 474 U.S. 121 
(1985), and subsequently in Solid Waste Agency of Northern Cook County 
v. United States Army Corps of Eng'rs, 53 1 U.S. 159 (2001) (S WANCC), 
the Supreme Court addressed the proper construction of the CWA terms 
``navigable waters'' and ``the waters of the United States.'' In 
Riverside Bawiew, the Court framed the question before it as ``whether 
the [CWA], together with certain regulations promulgated under its 
authority by the [corps], authorizes the corps to require landowners to 
obtain permits from the corps before discharging fill material into 
wetlands adjacent to navigable bodies of water and their tributaries.'' 
474 U.S. at 123. The Court unanimously sustained the corps' regulatory 
approach as a reasonable exercise of the authority conferred by the 
CWA. At the same time, however, the Court declined ``to address 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 SWANCC, the Supreme Court in 2001 faced an aspect of the 
question reserved in Riverside Bawiew, and it rejected the corps' 
construction of the term ``waters of the United States'' as 
encompassing ``isolated,'' intrastate, nonnavigable ponds based solely 
on their use as habitat for migratory birds. 53 1 U.S. at 171-172. The 
Court explained that, if the use of isolated ponds by migratory birds 
were found by itself to be a sufficient basis for Federal regulatory 
jurisdiction under the CWA, the word ``navigable'' in the statute would 
be rendered meaningless. Id. at 172. The Court also looked to the well-
established doctrine that ``[w]here an administrative interpretation of 
a statute invokes the outer limits of Congress' power, we expect a 
clear indication that Congress intended that result.'' Id. A clear 
expression of Congressional intention, the Court opined, was 
particularly necessary ``where the administrative interpretation alters 
the Federal-State framework by permitting Federal encroachment upon a 
traditional State power.'' Id. at 173. The Court found no clear 
indication of Congressional intention in this context. Following the 
SWANCC decision, a significant amount of litigation ensued, ultimately 
resulting in seven of eight Circuit Courts of AppeaI generally holding 
that the SWANCC decision applied to intrastate, non-navigable, isolated 
bodies of water, and did not affect jurisdiction over tributaries to 
navigable-in-fact waters or wetlands adjacent to such tributaries. See, 
eg., United States v. Johnson, 437 F.3d 157 (1st Cir. 2006); United 
States v. Deaton, 332 F.3d 698 (4th Cir. 2003), cert. denied, 541 U.S. 
972 (2004); United States v. Gerke Excavating, Inc., 412 F.3d 804 (7th 
Cir. 2005), petition for cert. manted and jud-pent vacated, 74 U.S.L.W. 
3714 (U.S. June 26,2006) (No. 05-623); Headwaters, Inc. v. Talent 
Irrigation Dist., 243 F.3d 526 (9th Cir. 2001); United States v. 
Hubenka, 438 F.3d 1026 (10th Cir. 2006), petition for cert. pending 
(U.S. May 17, 2006 ) (No. 05-1 1337); Parker v. Scrap Metal Processors. 
Inc., 386 F.3d 993 (1 lth Cir. 2004).

                          THE RAPANOS DECISION

Lower Court Decisions in Rapanos and Carabell
    In Rapanos, the Supreme Court addressed the jurisdictional scope of 
the CWA in two consolidated cases. The first case, Rapanos v. United 
States, involved a developer who, without a permit, filled 54 acres of 
wetlands adjacent to tributaries of navigable-in-fact water bodies. 376 
F.3d 629 (6th Cir. 2004). The District Court found Federal jurisdiction 
over the wetlands because they were adjacent to ``waters of the United 
States'' and held petitioners civilly liable for CWA violations. The 
Sixth Circuit affirmed the District Court's decision and found the 
wetlands within the scope of the CWA's protections based on the 
wetlands' hydrologic connections to tributaries of navigable-in-fact 
waters.
    The second case, Carabell v. United States Army Corps of Engineers, 
involved a permit applicant who was denied authorization to fill 
wetlands physically proximate to, but separated by a berm from, a 
tributary of a navigable-in-fact waterbody. 391 F.3d 704 (6th Cir. 
2004). The District Court found the wetlands to be within the scope of 
the CWA's protections over the wetlands because they were adjacent to 
tributaries of navigable-in-fact waters. The Sixth Circuit affirmed the 
District Court on the basis that a ``significant nexus'' existed 
between the wetlands at issue and an adjacent nonnavigable tributary of 
navigable-in-fact waters.
    The Supreme Court granted certiorari, in part, on the question of 
whether jurisdiction under the CWA extends to wetlands that are 
adjacent to tributaries of navigable-in-fact waters.\4\
---------------------------------------------------------------------------
    \4\ The Supreme Court also granted certiorari on the question of 
whether such an interpretation of the CWA was constitutional. The 
United States argued that as applied to the wetlands filling activities 
under review, the CWA's ban on unauthorized pollutant discharges was a 
permissible exercise of Congress' power to regulate (a) the channels of 
interstate commerce and (b) activities that substantially affect 
interstate commerce. The Supreme Court did not reach this question in 
the Rapanos decision.
---------------------------------------------------------------------------
    The United States argued before the Supreme Court that the corps 
and EPA acted reasonably in defining the CWA term ``the waters of the 
United States'' to include wetlands adjacent to tributaries of 
navigable-in-fact waters. Petitioners, on the other hand, argued that 
only wetlands adjacent to (abutting) traditional navigable waters are 
included within the statutory term (Rapanos); and that the CWA does not 
extend to wetlands that are hydrologically isolated from any navigable 
water of the United States (Carabell).

The Supreme Court Decision in Rapanos
    The judgment of the Supreme Court was to vacate and remand both 
cases for further proceedings. In summary, four Justices, in a 
plurality opinion authored by Justice Scalia, concluded that ``the 
lower courts should determine . . . whether the ditches or drains near 
each wetland are 'waters' in the ordinary sense of containing a 
relatively permanent flow; and (if they are) whether the wetlands in 
question are `adjacent' to these `waters' in the sense of possessing a 
continuous surface connection that creates the boundary-drawing problem 
we addressed in Riverside Bayview.'' 126 S. Ct. at 2235. Justice 
Kennedy, who concurred in the judgment of the Court, established a 
different test, concluding that the cases should be vacated and 
remanded to determine ``whether the specific wetlands at issue possess 
a significant nexus with navigable waters.'' Id, at 2252. Chief Justice 
Roberts joined in the plurality opinion and also wrote a concurring 
opinion. Justice Stevens, in a dissenting opinion in which Justices 
Souter, Ginsburg, and Breyer joined, would have affirmed the decisions 
by the lower courts. Justice Breyer also wrote a separate dissenting 
opinion.
    The plurality opinion, authored by Justice Scalia, first concluded 
that the petitioner's argument that the terms ``navigable waters'' and 
``waters of the United States'' are limited to waters that are 
navigable in fact ``cannot be applied wholesale to the CWA.'' Id. at 
2220. Citing CWA Section 502(7) and 404(g)(l), Justice Scalia opined 
that ``the Act's term `navigable waters' includes something more than 
traditional navigable waters.'' Id. Then, after reviewing the statutory 
language, the plurality concluded that ``waters of the United States,'' 
includes ``relatively permanent, standing or flowing bodies of water. 
The definition refers to water as found in `streams,' `oceans,' 
`rivers,' `lakes,' and `bodies' of water `forming geographical 
features.''' Id. at 2221 (citation omitted). The phrase does not 
include ``ordinarily dry channels through which water occasionally or 
intermittently flows.'' Id. The corps' interpretation of the term ``the 
waters of the United States,'' the plurality concluded, was not based 
on a permissible construction of the statute.
    Justice Scalia elaborated on this test in footnotes. He stated:

    By describing ``waters'' as ``relatively permanent,'' we do not 
necessarily exclude streams, rivers, or lakes that might dry up in 
extraordinary circumstances, such as drought. We also do not 
necessarily exclude seasonal rivers, which contain continuous flow 
during some months of the year but no flow during dry months-such as 
the 290-day, continuously flowing stream postulated by Justice Stevens' 
dissent. . . .
    It suffices for present purposes that channels containing permanent 
flow are plainly within the definition, and that the dissent's 
``intermittent'' and ``ephemeral'' streams . . . that is, streams whose 
flow is ``[c]oming and going at intervals . . . [b]roken, fitful,'' . . 
. or ``existing only, or no longer than, a day; diurnal short lived'' . 
. . are not. -Id. at 2221 n.5 (citations omitted).
    The plurality then examined the factor of the adjacency of the 
wetlands under review to ``waters of United States.'' Justice Scalia 
concluded that ``only those wetlands with a continuous surface 
connection to bodies that are `waters of the United States' in their 
own right, so that there is no clear demarcation between `waters' and 
wetlands, are `adjacent to' such waters and covered by the Act. 
Wetlands with only an intermittent, physically remote hydrologic 
connection to `waters of the United States' do not implicate the 
boundary-drawing problem of Riverside Bayview, and thus lack the 
necessary connection to covered waters that we described as a 
`significant nexus' in SWANCC.'' Id. at 2226 (citation omitted and 
emphasis in original).
    In response to arguments that this opinion would ``frustrate 
enforcement against traditional water polluters [u]nder CWA sections 
301 and 4021 . . .'' the plurality concluded: ``That is not so.'' Id. 
at 2227. The plurality went on to say that ''from the time of the CWA's 
enactment, lower courts have held that the discharge into intermittent 
channels of any pollutant that naturally washes downstream likely 
violates [section 3011, even if the pollutants discharged from a point 
source do not emit `directly into' covered waters, but pass `through 
conveyances' in between.'' Id. (citation omitted).
    Justice Kennedy did not join the plurality's opinion, but instead 
authored an opinion consuming in the judgment. He agreed with the 
plurality that the statutory term ``waters of the United States'' 
extended beyond water bodies that are navigable-in-fact. Justice 
Kennedy, however, concluded that wetlands are ``waters of the United 
States'' where ``the wetlands, either alone or in combination with 
similarly situated lands in the region, significantly affect the 
chemical, physical, and biological integrity of other covered waters 
more readily understood as `navigable.''' Id. at 2248. The concurrence 
by Justice Kennedy stated, in relevant part, that ``[a]s applied to 
wetlands adjacent to navigable-in-fact waters, the corps' conclusive 
standard for jurisdiction rests upon a reasonable inference of ecologic 
interconnection, and the assertion of jurisdiction for those wetlands 
is sustainable under the Act by showing adjacency alone.'' Id. With 
respect to wetlands adjacent to nonnavigable tributaries, Justice 
Kennedy explained that:
    ``[a]bsent more specific regulations, . . .  the corps must 
establish a significant nexus on a case-by-case basis[.]'' Id. at 2249.
    Justice Kennedy did not agree with the plurality's interpretation 
of ``waters of the United States'' and agreed with the dissent ``that 
an intermittent flow can constitute a stream. . . . It follows that the 
corps can reasonably interpret the Act to cover the paths of such 
impermanent streams.'' Id. at 2243 (citation omitted).
    In his concurring opinion, Chief Justice Roberts wrote that ''[i]t 
is unfortunate that no opinion commands a majority of the Court on 
precisely how to read Congress' limits on the reach of the Clean Water 
Act. Lower courts and regulated entities will now have to feel their 
way on a case-by-case basis. This situation is certainly not 
unprecedented. See Grutter v. Bollinger, 539 U.S. 306, 325 . .  . 
(2003) (discussing Marks v United States, 430 U.S. 188. . . (1977)).'' 
126 S. Ct. at 2236.
    The four dissenting Justices would have affirmed the lower courts' 
opinions and upheld the corps' exercise of jurisdiction in these cases 
as reasonable. Justice Stevens also concluded: ``In these cases, 
however, while both the plurality and Justice Kennedy agree that there 
must be a remand for further proceedings, their respective opinions 
define different tests to be applied on remand. Given that all four 
Justices who have joined this opinion would uphold the corps' 
jurisdiction in both of these cases-and in all other cases in which 
either the plurality's or Justice Kennedy's test is satisfied-on remand 
each of the judgments should be reinstated if either of those tests is 
met.'' Id. at 2265.

         DEPARTMENT OF JUSTICE RESPONSE TO THE RAPANOS DECISION

    Following this decision, ENRD is taking steps to ensure that the 
legal positions already taken on behalf of the Federal Government in 
litigation are consistent with Rapanos, regardless of where a case 
arises or which agency is involved in a particular case. In addition to 
taking the necessary steps to ensure that our existing cases are 
consistent with Rapanos, we established a process that the positions we 
take in all Rapanos-related litigation going forward are internally 
consistent and appropriately coordinated within the Federal Government. 
We have and will continue to devote particular attention in our CWA 
cases to assure that there is a factually and legally sound basis, 
consistent with Rapanos, before asserting jurisdiction over the aquatic 
resources in question.
    The Division convened an internal group of experienced attorneys to 
begin assembling and reviewing cases which could be impacted by the 
decision. We also began coordinating with the responsible Federal 
agencies, who were conducting similar reviews, to discuss the 
ramifications of the decision. Subsequently, the United States has 
sought extensions of time as necessary in filed cases; advised our 
attorneys nationwide to coordinate any post-Rapanos filings with our 
team of experienced attorneys so that our positions are accurate and 
consistent; and undertaken a detailed review of potentially affected 
cases. By letter of July 14, 2006, Michael A. Battle, Director of the 
Executive Office for United States Attorneys, and Sue Ellen Wooldridge, 
Assistant Attorney General, Environment and Natural Resources Division, 
wrote to United States Attorneys concerning the procedure for 
coordination of any filing that may raise issues related to the Rapanos 
decision.
    Although we are moving carefully to ensure that the Federal 
agencies with programmatic responsibility over wetlands have adequate 
time to evaluate the case and advise the Department of Justice on 
implementing the decision, we have continued to take necessary steps to 
protect wetlands. For instance, we have finalized settlements that were 
being negotiated prior to Rapanos and where the parties still found 
settlement to be desirable after the ruling. In one case, for instance, 
we recently lodged a consent decree that requires a developer to pay a 
$600,000 civil penalty and restore streams and wetlands filled, without 
a permit, associated with construction of a golf course and related 
facilities in the State of Georgia. In another case, the United States 
recently settled a matter involving the unpermitted harvesting of peat 
from rare and environmentally significant peat bogs in the State of 
Michigan. The defendant in that case is required to restore the 
majority of the bog affected by the peat mining and to donate more than 
2,800 acres of peatland to the State.
    We have also filed pleadings in pending cases advising courts of 
the opinion. In one case, the United States has opposed criminal 
defendants' efforts to use Rapanos to suppress evidence obtained in a 
search warrant. In that case, the defendants argue that the Rapanos 
case reaches the actions of the defendants, who piped raw, untreated 
human excrement directly into a creek that flows into the St. John's 
River in Florida.
    We are just beginning to see courts apply the Rapanos decision. In 
another case, within days of the Supreme Court's decision, a District 
Court in Texas granted an oil pipeline company's motion for summary 
judgment, holding that the United States had not established that the 
discharge of at least 3,000 barrels of oil from a pipeline into an 
intermittent creek reached navigable-in-fact waters of the United 
States. The deadline for appeal of that decision has not yet passed.
    In Rapanos, no opinion commanded a majority of the Court. In his 
concerning opinion, as we have noted, Chief Judge Roberts observed that 
lower courts ``will now have to feel their way on a case-by-case 
basis.'' 126 S. Ct. at 2236. He did, however, provide guidance, saying 
that ``[t]his situation is certainly not unprecedented. See Grutter v. 
Bollinger, 539 U.S. 306,325 . . . (2003) (discussing Marks v United 
States, 430 U.S. 188 . . . (1977)).'' Id, Since Rapanos was decided, 
the Supreme Court has examined another fragmented decision in the Texas 
redistricting case, Leame of United Latin American Citizens v. Perry, 
U.S. , 126 S. Ct. 2594,2607 (2006). Based on all of these decisions, 
the Department of Justice has advised courts that it believes the 
applicable standard to determine if a wetland is governed by the CWA is 
whether either the Rapanos plurality's or Justice Kennedy's test is met 
in a particular fact situation. Based on this standard, the Department 
of Justice filed a new wetland enforcement case last week. This case 
involves alleged CWA Section 404 and 402 (stormwater) violations during 
the construction of a senior housing development near Lynchburg, VA.
    Although ENRD is reviewing CWA cases to determine whether this 
opinion impacts what we previously advised various courts in which 
litigation is pending, Rapanos dealt primarily with the status of 
wetlands. In the plurality opinion, Justice Scalia stressed that the 
decision does not affect dischargers under sections 301 and 402 of the 
CWA. He stated that any person clearly remains responsible for the 
``addition of any pollutant to navigable waters,'' and that includes a 
``pollutant that naturally washes downstream . . .'' 126 S. Ct. at 2227 
(citations omitted).
    I would like to mention another facet of our post-Rapanos 
activities: working cooperatively with the States as we have done for 
many years. In general, we have made great strides to improve Federal-
State cooperation and coordination in environmental protection 
generally. When the SWANCC decision was issued, we worked closely with 
the States and hosted a national conference and training session on 
wetlands protection and enforcement. The Division anticipates 
continuing this close work with the States. Should this opinion result 
in some wetlands not being covered by the CWA, States clearly have the 
option-as they have done in the past-of enacting legislation that would 
provide such protection.

                               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. 
The Rapanos decision is significant and the Federal agencies are 
diligently reviewing their cases and procedures to assure that we 
satisfy the newly announced standards. We will continue to review all 
pending and potential cases to determine whether the waters involved 
meet the standards articulated in the Rapanos decision.
    I would be happy to answer any questions that you may have about my 
testimony.
                                 ______
                                 
       Responses by John C. Cruden to Additional Questions from 
                             Senator Chafee

    Question 1. When courts are attempting to apply this complicated 
decision in future cases, do you believe they will apply the plurality 
test or the Kennedy test?
    Response. As I mentioned in my opening statement, no opinion 
commanded a majority of the Court in Rapanos. Five Justices agreed that 
the judgments of the Sixth Circuit in the two consolidated cases under 
review should be vacated and the cases remanded for further 
proceedings. All Members of the Court agreed that the term ``waters of 
the United States'' encompasses some non-navigable tributaries and 
adjacent wetlands. Rapanos v. United States, U.S. , 126 S. Ct. 2208, 
2220 (plurality opinion); id. at 2241 (Kennedy, J., consuming in the 
judgment); id. at 2255 (Stevens, J., dissenting). Four Justices 
interpreted the term as covering ``relatively permanent, standing or 
continuously flowing bodies of water,'' Id. at 2225 (plurality 
opinion), that are connected to traditional navigable waters, id. at 
2226-27, as well as wetlands with a continuous surface connection to 
such water bodies, id. at 2227. Justice Kennedy would have held that 
the term encompasses wetlands that ``possess a 'significant nexus' to 
waters that are or were navigable in fact or that could reasonably be 
so made.'' Id. at 2236 (Kennedy, J., consuming in the judgment); see 
id. at 2248 (wetlands ``possess the requisite nexus'' if the wetlands 
``either alone or in combination with similarly situated lands in the 
region, significantly affect the chemical, physical, and biological 
integrity of other covered waters more readily understood as 
`navigable'). The four dissenting Justices, who would have affirmed the 
Court of Appeals' application of the pertinent regulatory provisions, 
also concluded that the term ``waters of the United States'' 
encompasses, inter alia, all tributaries and wetlands that satisfy 
either the plurality's standard or that of Justice Kennedy. Id. at 2265 
(Stevens, J., dissenting).
    In post-Rapanos filings in litigation, the Department of Justice 
has asserted that Clean Water Act jurisdiction over a particular 
wetland or other water exists if-the plurality's Justice Kennedy's test 
is met. This position is supported by the Rapanos decision and other 
case law. In his concurrence, Chief Justice Roberts wrote that ``[i]t 
is unfortunate that no opinion commands a majority of the Court on 
precisely how to read Congress' limits on the reach of the Clean Water 
Act. Lower courts and regulated entities will now have to feel their 
way on a case-by-case basis.'' Id. at 2236. He further noted that 
``[t]his situation is certainly not unprecedented. See Grutter v. 
Bollinger, 539 U.S. 306, 325 . . . (2003) (discussing Mark v. United 
States, 430 U.S. 188 . .  ``In these cases, however, while both the 
plurality and Justice Kennedy agree that there must be a remand for 
further proceedings, their respective opinions define different tests 
to be applied on remand. Given that all four Justices who have joined 
this opinion would uphold the U.S. Army Corps of Engineers' (corps) 
jurisdiction in both of these cases--and in all other cases in which 
either the plurality's or Justice Kennedy's test is satisfied--on 
remand each of the judgments should be reinstated if either of those 
tests is met.'' Id. at 2265. The Department's position also reflects 
common sense. If the facts of a particular case satisfy the plurality 
test, this likely means that at least eight Justices would agree that 
Federal jurisdiction exists. Similarly, if the facts of a case meet the 
Kennedy test, this likely means that five Justices would agree that 
Federal jurisdiction is established. For further analysis of the Marks, 
Grutter, and other relevant cases, see the response to Senator Inhofe's 
second question.

    Question 2. Row difficult will Justice Kennedy's ``significant 
nexus'' test be to measure whether a wetland or tributary is covered by 
the Clean Water Act in future Department of Justice enforcement and 
litigation proceedings?
    Response. The answer to this question depends in large part on how 
the ``significant nexus'' test is interpreted and applied by U.S. 
Environmental Protection Agency (EPA), and the corps, as the expert 
regulatory agencies, and by the courts. To date, there have been very 
few lower court decisions addressing the issue. As noted during the 
August 1 hearing, EPA and the corps are currently drafting guidance 
addressing how the tests articulated in the Rapanos case should be 
applied in determining Federal regulatory jurisdiction under the Clean 
Water Act. In describing the ``significant nexus'' test, Justice 
Kennedy points in his opinion to a number of factors which regulatory 
agencies are accustomed to measuring in aquatic environments to show 
that wetlands ``significantly affect the chemical, physical, and 
biological integrity of other covered waters more readily understood as 
a `navigable.''' 126 S. Ct. at 2248. I am confident we will be able to 
demonstrate adequate evidence of the jurisdictional status of wetlands 
and other waters in the future.

    Question 3. Why do you believe the Supreme Court issued such a 
convoluted judgment in this case? Where will the lower courts now head 
in terms of the 6th Circuit remand, as well as other Circuits on 
similar Clean Water Act cases?
    Response. Rapanos and Carabell are complex cases that raised 
important issues of statutory interpretation. While the Supreme Court 
decision does not have a majority position, we will work diligently to 
protect jurisdictional wetlands nationally consistent with the 
decision.
    With regard to the status of the two Sixth Circuit cases, on August 
2, 2006, the United States Court of Appeals for the Sixth Circuit 
issued an order remanding United States v. Rapanos, No. 03-1489, to the 
United States District Court for the Eastern District of Michigan for 
further proceedings consistent with the ruling of the Supreme Court. On 
August 1, 2006, the United States filed a motion in the Sixth Circuit 
in Carabell v. United States Army Corps of Engineers, No. 03-1700, 
seeking a remand to the District Court with instructions to remand the 
case to the corps for application of the appropriate legal standard and 
further factual development. Because the Carabell case involves a 
challenge to the corps' assertion of jurisdiction over wetlands, for 
which a permit was denied, judicial review of the action is governed by 
the Administrative Procedure Act (``APA''), and the court reviews an 
administrative record compiled by the agency in making its 
determination. In this regard, the Carabell case is different from the 
Rapanos case, which is a civil enforcement action brought by the United 
States seeking injunctive relief and the imposition of civil penalties. 
Hence, Rapanos does not involve judicial review of an Agency action 
under the MA and the record is developed in the District Court in such 
actions. For that reason, the Government did not seek a remand to the 
Agency in Rapanos but only a remand to the District Court. The Sixth 
Circuit has not yet ruled on the Government's motion for a remand in 
the Carabell case.

    Question 4. Has the Department had to deal with criminal defendants 
attempting to use the Rapanos case as a defense yet?
    Response. Yes. As I mentioned during the hearing, some criminal 
defendants have sought the dismissal of Clean Water Act charges against 
them, arguing that the United States no longer has jurisdiction over 
their conduct. United States v. Evans, No. 3:05-cr-159-J-32HTS (M.D. 
Fla.). The United States opposed this interpretation; and on August 2, 
2006, the District Court denied the motion. That opinion is available 
at 2006 WL 2221629 (filed Aug. 2, 2006). Other defendants have sought 
reversal of their convictions after lengthy trials, based on the 
jurisdictional discussions in the Rapanos opinions. United States v. 
Moses, No. 06-30379 (9th Cir.); United States v. Cooper, No. 05-4956 
(4th Cir.).

    Question 5. Will Rapanos negatively impact the ability of the 
Department to pursue an action against the common polluter who may, for 
example, throw a chemical into streams?
    Response. While some defendants in enforcement actions brought 
pursuant to sections 301 and 402 of the Clean Water Act may assert that 
they are entitled to defenses based on Rapanos, we will vigorously 
oppose such assertions. We do not believe that those defenses should 
ultimately prevail. See, e.g., United States v. Evans, No. 3:05-cr-159-
J-32HTS, 2006 WL 2221629 (M.D. Fla. Aug. 2, 2006). The Rapanos 
plurality agrees. In response to arguments that the Rapanos decision 
would ``frustrate enforcement against traditional water polluters 
[under Clean Water Act sections 301 and 4021 . . .,'' Justice Scalia 
concluded: ``That is not so.'' Id. at 2227. Justice Scalia went on to 
say that ``from the time of the CWA's enactment, lower courts have held 
that the discharge into intermittent channels of any pollutant that 
naturally washes downstream likely violates [section 3011, even if the 
pollutants discharged from a point source do not emit `directly into' 
covered waters, but pass `through conveyances' in between.'' Id. 
(citation omitted).

    Question 6. What is the role of States in protecting waters not 
addressed by the Federal Clean Water Act? On a State-by-State basis, 
are there equivalent protections for intrastate, isolated wetlands and 
intermittent and ephemeral streams?
    Response. States have the authority to regulate waters that are not 
addressed under the Clean Water Act. Section 510 of the Clean Water Act 
provides: ``Except as expressly provided in this chapter, nothing in 
this chapter shall. . .  be construed as impairing or in any manner 
affecting any right or jurisdiction of the States with respect to the 
waters (including boundary waters) of such States.'' Following Solid 
Waste Agency of Northern Cook County v. United States Army Corps of 
Eng'rs, 531 U.S. 159 (2001) (SWANCC), some States enacted legislation 
specifically designed to protect isolated wetlands; and some States had 
expansive authority to regulate such wetlands before the SWANCC 
decision on which they could rely. The Department understands that some 
States regulate isolated wetlands and intermittent and ephemeral 
streams, but protections vary from State to State, and some States have 
no provisions for the protection of these waters beyond the Federal 
Clean Water Act. Because of the States' important and independent 
authority, we will continue to work with the Association of State 
Wetland Managers and others to support State efforts.
                                 ______
                                 
       Responses by John C. Cruden to Additional Questions from 
                             Senator Inhofe

    Question 1. You testified ``In SWANCC, however, the Supreme Court 
held that isolated non-navigable intrastate waters did not become 
waters of the United States.'' Given the Court's affirmative statement 
that these areas are not waters of the United States, how can the 
Government continue to regulate ephemeral washes and other seasonal 
flows that do not have a connection to an adjacent waterbody?
    Response. In Solid Waste Agency of Northern Cook County v. United 
States Army Corps of Eng'rs, 531 U.S. 159 (2001) (SWANCC), the Supreme 
Court held that use of non-navigable, isolated, intrastate waters as 
habitat by migratory birds was not by itself a sufficient basis for the 
exercise of Federal regulatory jurisdiction under the Clean Water Act. 
Id. at 166-74. The Supreme Court did not rule on the validity of other 
grounds for asserting jurisdiction over such waters, or invalidate the 
current Federal regulations defining ``waters of the United States'' 
(33 C.F.R. 328.3(a); see also 40 C.F.R. 230.3(s)), nor did SWANCC 
address tributaries that may ultimately connect to traditional 
navigable waters.
    With regard to the question of Clean Water Act regulation of 
ephemeral or seasonal waters following the Rapanos decision, the 
Department of Justice defers to EPA and the corps as the expert 
regulatory agencies to identify types of waters that meet the 
plurality's test or Justice Kennedy's ``significant nexus'' test. As 
noted during the August 1 hearing, EPA and the corps are currently 
drafting guidance addressing how the tests that were articulated in the 
various opinions in the Rapanos case should be applied in determining 
Federal regulatory jurisdiction under the Clean Water Act.
    I note that Rapanos involved two consolidated cases in which the 
Clean Water Act had been applied to pollutant discharges into wetlands 
adjacent to non-navigable tributaries of traditional navigable waters, 
and the Supreme Court decided only the question of whether the Sixth 
Circuit properly determined those wetlands to be ``waters of the United 
States'' under the Clean Water Act. As we discussed during the hearing, 
the Department of Justice has asserted that Clean Water Act 
jurisdiction over a particular wetland or other water exists if the 
plurality's Justice Kennedy's test is met.
    In the plurality, Justice Scalia concluded that ``the lower courts 
should determine . . . whether the ditches or drains near each wetland 
are `waters' in the ordinary sense of containing a relatively permanent 
flow; and (if they are) whether the wetlands in question are `adjacent' 
to these `waters' in the sense of possessing a continuous surface 
connection that creates the boundary-drawing problem we addressed in 
Riverside Bayview.'' 126 S. Ct. at 2235. The plurality opinion 
concluded that the term ``waters of the United States'' ``does not 
include channels through which water flows intermittently or 
ephemerally, or channels that periodically provide drainage for 
rainfall.'' Id. at 2225. In footnote five of his opinion, however, 
Justice Scalia stated: ``By describing `waters' as `relatively 
permanent,' we do not necessarily exclude streams, rivers, or lakes 
that might dry up in extraordinary circumstances, such as drought. We 
also do not necessarily exclude seasonal rivers, which contain 
continuous flow during some months of the year but no flow during dry 
months. . . .'' Id. at 2221.
    Justice Kennedy concluded that the Rapanos and Carabell cases 
should be vacated and remanded to determine ``whether the specific 
wetlands at issue possess a significant nexus with navigable waters.'' 
Id. at 2252. He recognized the significance of some ``irregular flows'' 
for ``a statute concerned with downstream water quality.'' Id. at 2242. 
Justice Kennedy agreed with those Justices joining Justice Stevens' 
dissenting opinion that ``the corps can reasonably interpret the Act to 
cover the paths of such impermanent streams.'' Id. at 2243; see id. at 
2260-62.

    Question 2. In response to one of my earlier questions, you stated 
``And what the Supreme Court said in Marks is . . .  the narrowest 
position or maybe the one that has the greatest commonality is the one 
that would control.'' To quote from the case, ``[w]hen a fragmented 
Court decides a case and no single rationale explaining the result 
enjoys the assent of five Justices, the holding of the Court may be 
viewed as that position taken by those Members who concurred in the 
judgments on the narrowest grounds.'' (Marks v. U.S. 430 U.S. 188 
(1977)). The precedent established by Marks then is not that the 
narrowest position or the one with the greatest commonality holds. It 
is that the narrowest position of those who concurred in the result of 
the case and in Rapanos, that is those who concurred in the remand of 
the case. In particular, both Kennedy and the plurality held that 
neither hydrological connection nor the ordinary high water mark are 
sufficient to establish jurisdiction.
    Do you agree therefore that the only appropriate position for the 
Administration to take as it moves forward is that the holding is the 
overlap between Kennedy and the plurality which would limit Federal 
jurisdiction?
    Response. No. As I stated during the hearing, the position of the 
Department of Justice is that wetlands jurisdiction can be satisfied 
under the Rapanos decision by meeting either the plurality's test or 
Justice Kennedy's test. Further, there isn't any real overlap between 
the plurality and Kennedy opinions. As the Solicitor General recently 
advised the Supreme Court: ``Neither of those grounds for decision is 
inherently narrower than the other, thus making it logically impossible 
to identify a consensus narrowest position among the views of the 
Justices who concurred in the judgment.'' Brief of the United States in 
the U.S. Supreme Court in Opposition to the Petition for a Writ of 
Certiorari at 13 n.4, Hubenka v. United States, No. 05- 1337 (U.S. 
filed August 7, 2006) (U.S. Hubenka brief).
    To conclude that the Marks decision compels finding and applying an 
overlap between the plurality and Kennedy opinions is also a misreading 
of both the Marks decision and the other decision cited by Chief 
Justice Roberts in his concurring opinion in Rapanos, Btter v. 
Bollinger, 539 U.S. 306 (2003). In Marks, interpreting a prior Supreme 
Court decision on obscenity, the Supreme Court relied on an earlier 
decision, Memoirs v. Massachusetts, 383 U.S. 413 (1966), and held that 
``[t]he view of the Memoirs plurality therefore constituted the holding 
of the Court and provided the governing standards.'' 430 U.S. at 194. 
In Grutter, again faced with interpreting a Supreme Court decision in 
which there was no majority, the Court endorsed the opinion of a single 
Justice who had concurred in the outcome of the original decision. 539 
U.S. at 323-25.
    Recently, the Solicitor General advised the Supreme Court of the 
position of the United States concerning the application of Marks to 
the Rapanos case. Brief of the United States in Opposition to the 
Petition for a Writ of Certiorari in Hubenka v. United States, as noted 
above. The following is an extract from the U.S. Hubenka brief at 12-14 
(footnote omitted):
    In some fractured decisions, the narrowest rationale adopted by one 
or more Justices who concur in the judgment may be the only controlling 
principle on which a majority of the Court's Members agree. In that 
situation, application of the rule announced in Marks provides a 
sensible approach to determining the controlling legal principles of 
the case. But in Rapanos, as in some other instances, no opinion for 
the Court exists and neither the plurality nor the concurring opinion 
is in any sense a ``lesser included'' version of the other. In that 
instance, the principles on which a majority of the Court agreed may be 
illuminated only by consideration of the dissenting Justices' views. 
The dissenting opinions, by emphasizing controlling legal principles on 
which a majority of the Court agrees, may thereby contribute to an 
understanding of the law created by the case. And once those principles 
have been identified, sound legal and practical reasons justify a rule 
that a lower Federal court should adhere to the view of the law that a 
majority of this Court has unambiguously embraced. See Waters v. 
Churchill, 511 U.S. 661, 685 (1994) (Souter, J., concurring)(analyzing 
the points of agreement between plurality, concurring, and dissenting 
opinions to identify the legal ``test that lower courts should apply,'' 
under Marks, as the holding of the Court); cf. League of United Latin 
American Citizens v. w, 126 S. Ct. 2594, 2607 (2006)(analyzing 
concurring and dissenting opinions in a prior case to identify a legal 
conclusion of a majority of the Court); Alexander v. Sandoval, 532 U.S. 
275,281-282 (2001)(same).
    Consideration of the dissenting Justices' views is consistent with 
the underlying purpose of the specific rule announced in Marks, because 
it enables lower courts to discern the governing rule of law that 
emerges from a fractured decision of the Court. Cf. Rapanos, 126 S. Ct. 
at 2236 (Roberts, C.J., concerning) (noting the need to look to Marks 
in view of the absence of an opinion commanding a majority of the 
Court). And the application of that approach here clearly supports 
finding the existence of Federal regulatory jurisdiction whenever the 
legal standard of the plurality or of Justice Kennedy's concurrence is 
satisfied, since a majority of the Court's Members would find 
jurisdiction in either of those instances. See id. at 2265 (Stevens, 
J., dissenting). Accordingly, in light of the fact that at least eight 
Members of the Court would find jurisdiction on the undisputed facts of 
this case, further review is unwarranted.
                                 ______
                                 
       Responses by John C. Cruden to Additional Questions from 
                            Senator Jeffords

    Question 1. In your testimony you state that the Department of 
Justice has advised courts that it believes the standard to determine 
if a wetland is governed by the Clean Water Act is if the plurality or 
Justice Kennedy's test is met. Can you describe in a more concrete 
manner the types of waters that would be included in the jurisdiction 
of the Clean Water Act under this test?
    Response. The Department of Justice defers to EPA and the corps as 
the expert regulatory agencies to identify types of waters that meet 
the plurality's test or Justice Kennedy's ``significant nexus'' test. 
As noted during the August 1 hearing, EPA and the corps are currently 
drafting guidance addressing how the tests articulated in the Rapanos 
case should be applied in determining Federal regulatory jurisdiction 
under the Clean Water Act.
    In several filings, the United States, following coordination with 
the regulatory agencies, has advised courts that the facts of the 
particular case would satisfy the tests in Rapanos.
     Brief of the United States in the U.S. Supreme Court in 
opposition to the Petition for a Writ of Certiorari, Hubenka v. United 
States, No. 05-11337 (filed August 7, 2006)(plurality test);
     Letter of the United States to the 9th Circuit Court of Appeals, 
Baccarat Fremont Developers v. U.S. Army Corps of Eng'rs, No. 03-16586 
(filed July 31, 2006)(Kennedy test);
     Brief of the United States to the District Court, United States 
v. Fabian, No. 2:02CV495RL (N.D. Ind. filed August 17, 2006)(Kennedy 
test).

    Question 2. In your testimony, you mentioned the Texas 
redistricting case, League of United Latin American Citizens v. Perry. 
Can you elaborate on how the Supreme Court's findings in the case 
impact your interpretation of this decision?
    Response. Please see the response to Senator Inhofe's second 
question, which discusses the relevance of League of United Latin 
American Citizens v. Perry and other cases to interpretation of 
fractured decisions of the Supreme Court.

    Question 3. As the Justice Department noted in its brief Supreme 
Court, ``effective regulation of the traditional navigable waters would 
hardly be possible if pollution of tributaries fell outside the 
jurisdiction of those responsible for maintaining water quality down 
stream.'' Can you explain how the Justice Department believes that this 
common-sence principle can be implemented in the wake of this decision?
    Response. As discussed above, all Members of the Supreme Court 
agreed that the term ``waters of the United States'' encompasses some 
non-navigable tributaries and adjacent wetlands. 126 S. Ct. at 2220 
(plurality opinion); id. at 2241 (Kennedy, J., concurring in the 
judgment); id. at 2255 (Stevens, J., dissenting). The extent to which 
the Federal Government can protect the water quality of navigable-in-
fact waters by regulating discharges of pollution to their non-
navigable tributaries will depend to a large extent on how the Rapanos 
decision is interpreted and implemented by EPA, the corps, and the 
lower courts.

    Question 4. Does the Justice Department anticipate that the 
Rapanos-Carabell decision and adjacent wetlands, and do you anticipate 
that any changes will be limited within the wetlands program?
    Response. The Department of Justice anticipates that at least 
initially it will face increased challenges to agency action under the 
Clean Water Act based on the Rapanos decision. That is to be expected 
with a complex decision in which there is no majority opinion and five 
separate opinions. A significant amount of litigation occurred after 
the Supreme Court's decision in Solid Waste Agency of Northern Cook 
County v. United States Army Corps of Eng'rs, 531 U.S. 159 (1991), 
resulting in more than 35 decisions in District Courts and Courts of 
Appeal. The United States may also face challenges to the status of 
waters under various Clean Water Act programs based on the tests 
articulated in Rapanos. Although Rapanos involved only section 404, the 
Clean Water Act has one definition of ``waters of the United States'' 
for purposes of various programs, including dredge and fill (section 
404), the National Pollutant Discharge Elimination System (NPDES) 
(section 402), oil spill prevention and liability (section 31 l), and 
water quality standards (section 303).

    Question 5. How many cases already in the lower courts are going to 
be affected by this decision?
    Response. While we do not know how often or when defendants or 
parties to litigation will raise the Rapanos case, the United States 
has already filed pleadings interpreting Rapanos in some cases, 
including those cited in response to your first question, and we expect 
more in the future. As described in my written hearing statement, in 
addition to taking the necessary steps to ensure that our existing 
cases are consistent with Rapanos, we have established a process to 
ensure that the positions we take in all Rapanos-related litigation 
going forward are internally consistent and appropriately coordinated 
within the Federal Government. The Division convened an internal group 
of experienced attorneys to begin assembling and reviewing cases which 
could be impacted by the decision. We also began coordinating with the 
responsible Federal agencies, who were conducting similar reviews, to 
discuss the ramifications of the decision. Subsequently, the United 
States has sought extensions of time as necessary in filed cases; 
advised our attorneys nationwide to coordinate any post Rapanos filings 
with our team of experienced attorneys so that our positions are 
accurate and consistent; and undertaken a detailed review of 
potentially affected cases. By letter of July 14, 2006, Michael A. 
Battle, Director of the Executive Office for United States Attorneys, 
and Sue Ellen Wooldridge, Assistant Attorney General, Environment and 
Natural Resources Division, wrote to United States Attorneys concerning 
the procedure for coordination of any filing that may raise issues 
related to the Rapanos decision.

    Question 6. The first district court decision to apply Rapanos-
Carabell is, I believe, an oil spill case in Texas that seemed to 
dismiss Justice's Kennedy's ``significant nexus'' test and focus 
instead on Justice Scalia's plurality opinion. In this case, the court 
ruled that EPA lacks authority under the Clean Water Act to enforce the 
law against an oil company that spilled 126,000 gallons of oil into a 
tributary stream that was dry part of the year and several miles from 
the nearest navigable water. What is your opinion of this case, and 
what implications does it have for other Clean Water Act programs?
    Response. The Department of Justice does not believe that the 
interpretation set forth in the District Court's opinion is correct, 
but because this case has not yet been concluded, it would be 
inappropriate to comment further now.

    Question 7. Would it make it easier for the Justice Department to 
defend agency decisions to protect streams, tributaries, wetlands and 
other ``waters of the United States'' if Congress were to pass 
legislation reaffirming the historic reach of the Clean Water Act?
    Response. The Administration has not been requested to provide, and 
has not developed, a position on any currently pending bill addressing 
``waters of the United States.'' When such a request is formally made 
to the Administration, the Department of Justice typically 
participates, along with other affected Executive Agencies, in the 
development of a single Administration position on the bill. Of course, 
any proposed legislation drafted before the Rapanos decision came out 
must now be reevaluated in light of that decision.

    Question 8. During the hearing, Mr. Kisling states that he believes 
the commonalities between the plurality decision and Justice Kennedy's 
decision should determine jurisdiction of the Clean Water Act. Can you 
comment on this interpretation?
    Response. I do not agree. Please see the response to Senator 
Inhofe's second question.
                                 ______
                                 
       Responses by John C. Cruden to Additional Questions from 
                              Senator Bond

    Question 1. Provide and describe, if available, the statutory, 
regulatory or case law authority for Federal regulation of runoff.
    Response. Assistant Administrator Grumbles will respond to this 
question, which was also posed to him.

    Question 2. How, if available, is the Federal Government authorized 
to limit actions creating runoff where no runoff existed before? 
Example scenario: construction of a parking lot which has the effect of 
creating runoff. Please provide examples and descriptions of the 
Federal statutory and regulatory authority that would be used, examples 
of any applicable Federal guidance, determinations or case law, and any 
permitting process required to undertake the action.
    Response. Assistant Administrator Grumbles will respond to this 
question, which was also posed to him.

    Question 3. How, if available, is the Federal Government authorized 
to limit actions allowing runoff where the potential runoff is 
currently blocked? Example scenario: removal or compromising of a 
physical barrier, such as a berm, adjacent to a parking lot, thereby 
allowing runoff from the parking lot. Please provide examples and 
descriptions of the Federal statutory and regulatory authority that 
would be used, examples of any applicable Federal guidance, 
determinations or case law, and any permitting process required to 
undertake the action.
    Response. Assistant Administrator Grumbles will respond to this 
question, which was also posed to him.

    Question 4. How, if available, are State or local Governments 
authorized to limit runoff as described above? Provide examples of such 
authority.
    Response. Assistant Administrator Grumbles will respond to this 
question, which was also posed to him.
                                 ______
                                 
       Response by John C. Cruden to an Additional Question from 
                           Senator Murkowski

    Question 1. You indicated that the Department of Justice is taking 
steps to ensure its internal and external legal positions are 
consistent and coordinated in the context of the recent Supreme court 
ruling. What is Justice's view on the merits of rulemaking versus the 
``guidance'' described by your colleagues? Would Justice support or 
oppose a rulemaking effort, and why?
    Response. As Assistant Administrator Grumbles stated during the 
August 1 hearing, rulemaking is one among several actions that the 
Administration is considering in response to the Rapanos decision.
    Rulemaking takes time-certainly well over a year to develop a final 
rule, in part, because of the important public notice and comment 
provisions called for under the Administrative Procedure Act. Agency 
guidance, which is not binding, can be developed and disseminated 
quickly. Guidance can assist regulators, the regulated community, and 
the public to understand and consistently apply statutes, regulations, 
and applicable case law. Guidance can help ensure that Clean Water Act 
jurisdictional determinations, administrative enforcement actions, and 
other agency actions are consistent with the Rapanos decision. Guidance 
does not substitute for statutory or regulatory requirements, but can 
provide timely implementation to assist the public. As noted during the 
August 1 hearing, EPA and the corps are currently drafting guidance 
related to the Rapanos decision. The Department believes such guidance 
could be extremely useful in implementing the Rapanos decision.

                               __________
 Statement of Jonathan H. Adler, Professor of Law, Co-director, Center 
for Business Law and Regulation, Case Western Reserve University School 
                                 of Law

    Thank you, Mr. Chairman and members of this subcommittee, for the 
invitation to testify on the Supreme Court's decision in Rapanos v. 
United States and its implications for wetland conservation. My name is 
Jonathan H. Adler, and I am a Professor of Law and co-director of the 
Center for Business Law and Regulation at the Case Western Reserve 
University School of Law, where I teach several courses in 
environmental law and constitutional law.
    For the past 15 years I have researched and analyzed Federal 
regulatory policies, with a particular focus on the intersection of 
federalism and environmental protection. Substantial portions of my 
research have focused on wetland conservation programs, including 
Federal regulation of wetlands under Section 404 of the Clean Water Act 
and the proper role of Federal regulation in conservation policy. This 
research has led to numerous academic articles and book chapters on the 
subject, including articles in Environmental Law, the Supreme Court 
Economic Review, and Regulation.\1\ The issue of wetland conservation 
is also of some personal interest to me. Our backyard in Hudson, Ohio 
extends into wetlands adjoining a conservation area, and I am committed 
to outdoor recreational activities, including hunting and fishing, that 
rely upon the ecosystem services that wetlands provide. Thus, I 
appreciate the opportunity to share my views with the committee today.
---------------------------------------------------------------------------
    \1\See, e.g., The Ducks Stop Here? The Environmental Challenge to 
Federalism, 9 SUPREME COURT ECONOMIC REVIEW 205 (2001); Swamp Rules: 
The End of Federal Wetlands Regulation? REGULATION, Vol. 22, No. 2 
(1999); Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce 
Clause Jurisprudence and the Limits of Federal Wetlands Regulation, 29 
ENVIRONMENTAL LAW 1 (1999). See also Jurisdictional Mismatch in 
Environmental Federalism, 14 NYU ENVIRONMENTAL LAW JOURNAL 130 (2005); 
Judicial Federalism and the Future of Federal Environmental Regulation, 
90 IOWA LAW REVIEW 377 (2005); When Is Two A Crowd? The Impact of 
Federal Action on State Environmental Regulation, HARVARD ENVIRONMENTAL 
LAW REVIEW (2006)(forthcoming).
---------------------------------------------------------------------------
    Rapanos v. United States, 126 S.Ct. 2208 (2006), is only the latest 
chapter in the effort to define the meaning of ``waters of the United 
States,'' and the scope of Federal regulatory jurisdiction, under the 
Clean Water Act (CWA). Although no single opinion commanded a majority 
of the justices, the Court did provide a discernible holding: The CWA 
only extends to those waters and wetlands that have a ``significant 
nexus'' to navigable waters of the United States. This holding 
indicates that CWA jurisdiction over private lands is far more limited 
than Federal regulators have been willing to acknowledge. A majority of 
the Court explicitly rejected the expansive interpretation adopted by 
the U.S. Army Corps of Engineers, Environmental Protection Agency, and 
most lower courts. Indeed, this is the second time in only 6 years that 
the Court has so ruled. Due to Rapanos, the primary bases upon which 
the U.S. Army Corps of Engineers and the Environmental Protection 
Agency asserted regulatory jurisdiction are no longer valid. Unless 
these agencies wish to engage in a costly and inconsistent case-by-case 
approach to determining Federal jurisdiction, a new rulemaking is 
required to ensure that Federal regulations conform the applicable law.

           1REGULATORY JURISDICTION UNDER THE CLEAN WATER ACT

    Federal regulations define wetlands as ``areas that are inundated 
or saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions.'' 33 C.F.R. 328.3(b). Yet it is not a given parcel's 
wetland characteristics, but its connection to naviagable waters of the 
United States that forms the basis for Federal jurisdiction.
    The CWA, by its terms, only extends to ``navigable waters of the 
United States.'' Yet the CWA defines ``navigable waters'' as ``the 
waters of the United States. 33 U.S.C. 1362 (7). This definition 
extends Federal jurisdiction beyond those waters traditionally used for 
navigation, but it is still limited; the phrase of ``navigable waters'' 
is still relevant in jurisdictional determinations. As the Supreme 
Court has explained, ``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.'' Solid Waste Agency of 
Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 
159, 171 (2001) (internal quotations omitted). Nonetheless, there is no 
``basis for reading the term `navigable waters' out of the statuteThe 
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.'' Id. at 172.
    The Supreme Court first considered the scope of the corps' 
regulatory authority in 1985 in United States v. Riverside Bayview 
Homes, 474 U.S. 121 (1985). Here, the Court unanimously concluded that 
the Corps could reasonably define ``waters of the United States'' to 
include ``wetlands adjacent to navigable bodies of water and their 
tributaries.'' Id. at 123. The Court based this holding on the corps' 
conclusion that such wetlands ``are inseparably bound up with the 
`waters of the United States.''' Id. at 131. In so holding the Court 
did not ``express any opinion'' on whether Federal regulatory 
jurisdiction could be further extended to cover ``wetlands that are not 
adjacent to bodies of open water.'' Id. at 131-32 n.8.
    In 2001, in Solid Waste Agency of Northern Cook County v. U.S. Army 
Corps of Engineers (SWANCC), 531 U.S. 159 (2001), the Court reaffirmed, 
but refused to extend, the holding of Riverside Bayview Homes. 
Specifically, the Court held that the CWA does not confer Federal 
regulatory jurisdiction over isolated, intrastate waters. Rather, the 
CWA only reaches those waters or wetlands that have a ``significant 
nexus'' to navigable waters. Id. at 167. Of note, the Court refused to 
defer to the Army Corps' statutory interpretation because to do so 
would ``invoke the outer limits of Congress' power'' to regulate 
private lands. Id. at 172. The Court refused to endorse an 
interpretation of the Act that would potentially exceed the scope of 
the Federal commerce clause in some of its applications.
    As this Committee is aware, application of SWANCC by regional Corps 
offices\2\ and lower Federal courts was quite inconsistent.\3\ This led 
to substantial uncertainty as to the current scope of Federal 
regulatory jurisdiction under the CWA.\4\ Rapanos resolves some, though 
not all, of the uncertainty generated by the SWANCC opinion. Rapanos 
makes clear that, under SWANCC, Federal regulatory jurisdiction under 
the CWA does not extend to non-navigable, isolated, intrastate waters, 
irrespective of whether migratory birds are used to provide the basis 
for jurisdiction. Indeed, the Court was unanimous on this point. See, 
126 S.Ct. at 2217 (Scalia, J., plurality); id. at 2244 (Kennedy, J., 
concurring in the judgment); id. at 2256 (Stevens, J., dissenting). 
Waters and wetlands that lack any discernible hydrological connection 
to navigable waters are beyond the scope of the CWA. The Court also 
made clear that the standard adopted by most Federal appellate courts, 
including the Sixth Circuit, was too deferential to the Army Corps and 
failed to ensure that regulated wetlands actually had a ``significant 
nexus'' to navigable waters.
---------------------------------------------------------------------------
    \2\ See U.S. GENERAI, ACCOUNTING OFFICE, Waters and Wetlands: Corps 
of Engineers Needs to Evaluate Its District Office Practices in 
Determining Jurisdiction, GAO-04-297, Feb. 2004.
    \3\ See, e.g., United States v. Deaton, 332 F.3d 698 (4th Cir. 
2003) (interpreting SWANCC narrowly); United States v. Rapanos, 339 
F.3d 447 (6th Cir. 2003) (same); United States v. Rueth Dev. Co., 335 
F.3d 598 (7th Cir. 2003)(same); compare In re Needham, 354 F.3d 340 
(5th Cir. 2003) (after SWANCC Federal jurisdiction only extends to 
wetlands adjacent to navigable waters); Rice v. Harken Exploration Co., 
250 F.3d 264 (5th Cir. 2001)(same).
    \4\ See, e.g., Lance D. Wood, Do Not Be Misled: CWA Jurisdiction 
Extends to All Non-Navigable Tributaries of the Traditional Navigable 
Waters and to Their Adjacent Wetlands, 34 ENVTL. L. REP. 10187, 10189, 
10195 (2004) (noting SWANCC was ``ambiguous'' and courts have been 
``inconsistent'' in their interpretations); Amended Statement of 
Patrick Parenteau, Professor of Law, Vermont Law School, before the 
House of Representatives Committee on Government Reform, Sept. 19, 2002 
( ``The decision has created substantial uncertainty regarding the 
geographic jurisdiction of the Clean Water Act.''); Position Paper on 
Clean Water Act Jurisdiction Determinations Pursuant to the Supreme 
Court's Jan. 9, 2001 Decision, Solid Waste Agency of Northern Cook 
County v. U.S. Army Corps of Engineers, Associate of State Wetland 
Managers, Dec. 2001 ( ``The section 404 regulatory program has been in 
turmoil ever since the Supreme Court's SWANCC decision.'').
---------------------------------------------------------------------------
                THE HOLDING OF UNITED STATES V. RAPANOS

    In United States v. Rapanos, the Court was called upon to address 
whether, and in what circumstances, regulatory jurisdiction under the 
CWA extends to wetlands that are not adjacent to waters that are 
navigable in fact. Whereas prior decisions produced clear majorities, 
the Rapanos court split into three groups. Four justices joined a 
plurality opinion, announcing the judgment of the Court and construing 
the CWA narrowly to excude such wetlands. Four justices joined a 
dissent that called for near-absolute deference to the Atiny Corps' 
construction of its own jurisdiction under the CWA. And one justice 
joined the judgment of the Court, rejecting the expansive 
interpretation of Federal jurisdiction adopted by the Federal 
Government and endorsed by the U.S. Court of Appeals for the Sixth 
Circuit, but also adopting a broader (and more ambiguous) 
interpretation of the CWA than that urged by the plurality. The result 
is what some would term a ``4-1-4'' split.
    The lack of a majority opinion in Rapanos necessarily creates some 
uncertainty and ambiguity, but it does not preclude the existence of a 
holding that is binding on lower courts and Federal regulators. As 
explained in Marks v. United States, ``[w]hen a fragmented Court 
decides a case and no single rationale explaining the result enjoys the 
assent of five Justices, the holding of the Court may be viewed as that 
position taken by those Members who concurred in the judgments on the 
narrowest grounds.'' 430 U.S. 188, 193 (1977). The judgment of the 
Court in Rapanos was to vacate and remand the decisions of the U.S. 
Court of Appeals for the Sixth Circuit in United States v. Rapanos, 376 
F.3d 629 (6th Cir. 2004) and Carabell v. United States Army Corps of 
Engineers, 391 F.3d 704 (6th Cir. 2004). Therefore, the concurring 
opinion of Justice Kennedy, and the grounds of agreement between 
Justice Kennedy and the plurality opinion authored by Justice Scalia, 
form the holding of the Court.
    The central holding of Rapanos is that a ``significant nexus'' 
between a given water or wetland and navigable waters is a necessary 
predicate for regulatory jurisdiction under the CWA. As Justice Kennedy 
explained ``the corps' jurisdiction over wetlands depends upon the 
existence of a significant nexus between the wetlands in question and 
navigable waters in a traditional sense.'' 126 S. Ct. at 2248 (emphasis 
added); see also id. at 2241 ( ``Absent a significant nexus, 
jurisdiction under the Act is lacking.'').\5\ In this regard, the 
Rapanos court largely followed the reasoning adopted by the Court in 
SWANCC, where the Court had previously held that ``waters of the United 
States'' only applies to those waters and wetlands that have a 
``significant nexus'' to navigable waters, and rejected the 
jurisdictional theories put forward by the Federal Government and many 
amici.
---------------------------------------------------------------------------
    \5\ As Justice Kennedy further noted, ``navigable waters'' are 
``waters that are or were navigable in fact, or that could reasonably 
be so made.'' Id. at 2236.
---------------------------------------------------------------------------
    Whereas the Sixth Circuit and Federal regulators had maintained 
that any hydrological connection between a given wetland and navigable 
waters would be sufficient to assert Federal regulatory jurisdiction, a 
majority of the Court rejected this view. A ``mere hydrologic 
connection,'' by itself, will not be enough to establish jurisdiction 
in all cases. 126 S. Ct. at 2251. The connection must be significant. 
Justice Kennedy elaborated on what such a connection must entail:
    wetlands possess the requisite nexus, and thus come within the 
statutory phrase ``navigable waters,'' if the wetlands, either alone or 
in combination with similarly situated lands in the region, 
significantly affect the chemical, physical, and biological integrity 
of other covered waters more readily understood as ``navigable.'' When, 
in contrast, wetlands' effects on water quality are speculative or 
insubstantial, they fall outside the zone fairly encompassed by the 
term ``navigable waters.'' 126 S. Ct. at 2248.
    Whereas it is reasonable for the corps to presume jurisdiction over 
wetlands adjacent to truly navigable waters--that is ``waters that are 
or were navigable in fact, or that could reasonably be so made'' 126 
S.Ct. at 2236--absent a greater ecological connection, adjacency to a 
nonnavigable tributary by itself will not be enough to establish 
jurisdiction. 126 S.Ct. at 2252.
    Justice Kennedy also joined the plurality and rejecting the 
dissent's willingness to defer to any conceivable regulatory 
interpretation of ``waters of the United States,'' no matter how broad. 
As Kennedy noted, ``the dissent would permit Federal regulation 
whenever wetlands lie alongside a ditch or drain, however remote and 
insubstantial, that eventually may fallow into traditional navigable 
waters. The deference owed to the corps' interpretation of the statute 
does not extend so far.'' Id. at 2247. Justice Kennedy observed that 
``the dissent reads a central requirement out--namely the requirement 
that the word `navigable' in `navigable waters' be given some 
importance.'' Id. As Justice Kennedy and the plurality both made clear, 
``the word `navigable' in the Act must be given some effect.'' Id. 
Another implication of Justice Kennedy's opinion is that the current 
regulatory definition of tributaries is also overbroad, insofar as it 
allows for the assertion of jurisdiction with little regard for the 
actual connections between a given ditch, swale, gully, or channel with 
actual navigable waters. Here again, Justice Kennedy was in agreement 
with the plurality.
    While there is some amount of agreement between Justice Kennedy's 
concurrence and the dissenting justices, it would be wrong to view any 
part of Justice Stevens' dissent as a ``holding'' of the Court. Nothing 
in the dissent constitutes a portion of the judgment of the Court, so 
nothing in the dissent is legally binding. As the Supreme Court noted 
in Marks, the holding of the Court is ``that position taken by those 
Members who concurred in the judgments on the narrowest grounds.'' 430 
U.S. at 193 (emphasis added). Moreover, Justice Kennedy's concurring 
opinion explicitly rejected Justice Stevens' near-limitless approach to 
Federal jurisdiction, so the latter provides no useful guide for 
determining the CWA's jurisdictional limits.
    The urgency or importance of some environmental concerns provides 
no justification for adopting a more expansive view of Federal 
regulatory jurisdiction or adopting a more lenient approach to 
statutory interpretation. According to a majority of the Court, such 
policy considerations cannot trump the text of the statute itself. As 
Justice Kennedy noted, in explicit agreement with the plurality, 
``environmental concerns provide no reason to disregard limits in the 
statutory text.'' 126 S.Ct. at 2247. Moreover, as I will explain below, 
not every environmental concern is best addressed through the expansion 
of Federal regulation. More Federal environmental regulation does not 
always produce greater environmental protection.

                 THE EFFECT ON PRE-EXISTING REGULATIONS

    One clear implication of the Court's decision in Rapanos is that 
the current Federal regulations used by the Army Corps of Engineers and 
Environmental Protection Agency to define the scope of the CWA are no 
longer valid. For instance, insofar as Federal regulations purport to 
define ``waters of the United States'' to include intrastate waters 
``the use, degradation, or destruction of which could effect interstate 
commerce or foreign commerce,'' 33 C.F.R. 28.3(a)(3) and wetlands 
adjacent to such waters 33 C.F.R. 328.3(a)(7), they far exceed the 
holdings of both SWANCC and Rapanos. The Court also rejected the 
current regulatory definition of what constitutes a ``tributary'' in 33 
C.F.R. 328.3(a)(5) as overbroad.
    Courts owe substantial deference to the Army Corps and EPA in their 
assessment of the ecological connections between types of wetlands and 
water systems and navigable waters. Yet those regulations currently on 
the books do not establish such a connection, and provide no assurance 
that those wetlands over which the Corps' asserts jurisdiction in fact 
have a ``significant nexus'' to the waters of the United States. Until 
the Corps and EPA promulgate regulations that identify those wetland 
characteristics that are sufficient to establish such a nexus, in at 
least the majority of cases, the corps will be forced to ``establish a 
significant nexus on a case-by-case basis when it seeks to regulate 
wetlands based on adjacency to nonnavigable tributaries.'' 126 S.Ct. at 
2249. This will necessarily increase the administrative burden of 
wetland enforcement, generating increased uncertainty and delays in 
permit reviews. IT will also limit the corps' ability to ensure that 
the ecological goals of the Section 404 program are being met.
    Some of these problems may have been avoided had the Army Corps and 
EPA revised their regulations in response to the SWANCC decision, a 
point made by the Chief Justice in his concurrence. In January 2003, 
the Army Corps and EPA issued an advance notice of proposed rulemaking 
to clarify the scope of regulatory jurisdiction under the CWA.\6\ In 
December 2003, however, the Army Corps and EPA announced they would not 
issue a new rulemaking. One reason given for this decision was Federal 
courts had narrowly interpreted SWANCC' s impact. Whether or not the 
Army Corps and EPA were correct in this assessment--and I believe most 
lower courts adopted an unjustifiably narrow reading of SWANCC, a view 
vindicated by the Rapanos holding--this justification for continuing to 
rely upon the pre-existing Federal regulations is no longer valid. To 
the contrary, it is incumbent upon the Army Corps and EPA to develop 
and promulgate new regulations defining the scope of ``waters of the 
United States'' under the CWA.
---------------------------------------------------------------------------
    \6\Advance Notice of Proposed Rulemaking on the Clean Water Act 
Regulatory Definition of ``Waters of the United States,'' 68 Fed. Reg. 
1991 (Jan. 15, 2003).
---------------------------------------------------------------------------
                             THE PATH AHEAD

    In developing new implementing regulations, the Federal Government 
should not repeat the mistake of seeking to assert the broadest 
possible interpretation of ``waters of the United States.'' Adopting a 
regulatory interpretation that is potentially at odds with Rapanos and 
SWANCC is not in the interest of the regulated community nor does it 
best serve the cause of wetland conservation. Refusing to abide the 
letter and spirit of the Supreme Court's decision is a recipe for 
further litigation, court losses, and regulatory uncertainty. It would 
also represent a missed opportunity to harmonize Federal regulations 
with current law and the Federal Government's particular conservation 
interests.
    Federal regulatory resources are necessarily limited. For this 
reason, Federal resources are best utilized if they are targeted at 
those areas where there is an identifiable Federal interest or the 
Federal Government is in particularly good position to advance 
conservation goals. For example, there is an undeniable Federal 
interest in regulating the filling or dredging of wetlands where such 
activities would cause or contribute to interstate pollution problems 
or compromise water quality in interstate waterways. Where the effects 
of wetland modification are more localized, however, the Federal 
interest is less clear. Not coincidentally, in the latter case, the 
basis for Federal jurisdiction is also more attenuated.
    Limiting Federal regulatory authority to the areas of greatest 
Federal interest would certainly create room for the expansion of State 
and local regulatory efforts. Over-expansive assertions of Federal 
regulatory authority may preclude, discourage, or otherwise inhibit 
State and local Governments and non-governmental conservation 
organizations from adopting environmental protections where such 
efforts would be worthwhile. Contrary to common perceptions, State 
wetland regulation preceded Federal regulatory efforts. Indeed, the 
first State wetland conservation statutes were adopted more than a 
decade before the Army Corps and EPA began regulating the dredging and 
filling of wetlands. Since then, many States have stayed well ahead of 
the Federal Government, adopting more innovative or protective wetland 
conservation programs. Yet it also appears that greater conservation 
efforts by non-Federal actors may have been ``crowded out'' by an 
overzealous interpretation of Federal jurisdiction. If the Federal 
Government will regulate everything, there is less incentive for other 
entities to act. Insofar as Federal efforts are inefficient, 
misdirected, or ineffective--all charges that have been leveled against 
the Section 404 program--this reduces environmental conservation. By 
developing jurisdictional regulations that establish a ``significant 
nexus,'' in part, by focusing on those instances in which there is a 
particular Federal interest, the Army Corps and EPA can maximize 
wetland conservation by complementing and supplementing, rather than 
supplanting, non-Federal efforts.
    It is also important for Federal policymakers not to lose sight of 
the fact that Federal regulation under the CWA is not the only means 
for advancing wetland conservation. Indeed, the experience of Federal 
conservation programs that rely upon incentives and cooperation with 
private landowners compares quite favorably with the conflicts and 
inconsistencies of Federal wetland regulations. Federal support for the 
protection of waterfowl habitat dates back over 70 years to the sale of 
``duck stamps'' to hunters that created a dedicated source of revenue 
for conservation of an estimated 4.5 million acres. Other programs 
under which the Federal Government enters into private agreements with 
landowners to restore wetlands on their property, while subsidizing the 
cost of restoration and the purchase of a permanent or multi-year 
easement to ensure that the wetland is protected, are particularly 
cost-effective when compared to mandated mitigation under the CWA. Such 
programs are also not confined by the jurisdictional limits of the CWA, 
nor do they generate the litigation and conflict of Federal controls on 
private land-use decisions.
    Insofar as some types of wetlands, such as prairie potholes, may be 
particularly likely to lie beyond the scope of Federal regulation, 
incentive programs remain a viable conservation option. Indeed, 
enlisting private landowners and conservation organizations through 
incentive programs has conserved hundreds of thousands of acres of 
wetlands and was the driving force behind the attainment of ``no net 
loss'' of wetlands during the 1990s. There is no reason why this cannot 
continue, despite the limitations on Federal regulatory jurisdiction. 
Private landowners, who own the majority of wetlands in this nation, 
are far more willing to cooperate with conservation organizations and 
Government agencies when doing so does not increase the threat of 
Federal regulation. It would be a tragedy were an inordinate focus on 
maximizing regulatory jurisdiction to come at the expense of sufficient 
support for alternative means of encouraging wetland conservation.
    Mr. Chairman and members of this subcommittee, I recognize the 
importance of these issues to you and your constituents, and I commend 
your efforts to examine what, if any, Congressional or administrative 
response to the Rapanos decision is appropriate. I hope that my 
perspective has been helpful to you, and will seek to answer any 
additional you might have.
                                 ______
                                 
      Responses by Jonathan H. Adler to Additional Questions from 
                             Senator Chafee

    Question 1. In the plurality's opinion, Justice Scalia seems to 
indicate that while he supports a more narrowed scope of the Clean 
Water Act for the purposes of the Section 404 wetlands permitting 
program, he does not support a similar narrowing of the Act's authority 
for other programs, such as the National Pollutant Discharge 
Elimination System (NPDES) Program. What is your position on this 
issue?
    Response. While the definition of ``waters of the United States'' 
is the same for all sections of the Clean Water Act, narrowing the 
scope of ``waters of the United States'' does not have the same 
practical effect on the NPDES program that it does on the Section 404 
program. The 404 program, by its terms, only applies to the deposit of 
material into waters of the United States. The NPDES program may have a 
broader reach, however. NPDES permits may be required for ``upstream'' 
activities that occur outside of the ``waters of the United States'' 
that nonetheless result in discharges of pollutants into ``waters of 
the United States.'' As the Scalia plurality correctly notes, the Act 
prohibits any unpermitted discharge of a pollutant from a point source 
into ``waters of the United States.'' Further, Justice Scalia writes,

     ``from the time of the CWA's enactment, lower courts have held 
that the discharge into intermittent channels of any pollutant that 
naturally washes downstream likely violates 1311(a), even if the 
pollutants discharged from a point source do not emit ``directly into'' 
covered waters, but pass ``through conveyances'' in between.''

    In other words, actions that cause the pollution of waters and 
wetlands that are beyond the scope of the Clean Water Act could 
nonetheless be subject to the act if they result in such discharges 
into ``waters of the United States'' from ditches, channels, or other 
conveyances that may not themselves be otherwise covered by the Act. In 
this way, the narrowing of the Act's jurisdiction does not have as 
great an impact on the NPDES program as it does upon Section 404.

    Question 2. It is often suggested that if Clean Water Act 
jurisdiction over wetlands is reduced by judicial or regulatory 
decision, states and local Governments could act to fill in the 
resulting gap. That point was often raised after SWANCC, but the States 
tell us that only a few of them actually modified their laws or 
regulations in response to that decision. What do you believe will be 
the response of the States to the Rapanos decision? Do you believe 
States will act to fill regulatory gaps created by the ruling?
    Response. Many States already provided protection for isolated 
waters and wetlands prior to the SWANCC decision. After the SWANCC 
decision, numerous States that did not already provide regulatory 
protection of isolated waters considered the adoption of new rules or 
statutes to cover any potential gap created by the Court's decision. 
Some of these States, such as Ohio, adopted new legislation. Others 
adopted new administrative rules. Still others waited to see how the 
decision would be interpreted before deciding whether additional State 
rules were necessary.
    Before many States could act the Federal Government and lower 
courts made clear that they would interpret SWANCC very narrowly, 
reducing the need for State or local Governments to act. Therefore, it 
should not be surprising that more States did not adopt additional 
wetland protections. In addition, the continuing operation of the 
Federal wetland regulatory program may serve to discourage the adoption 
of more protective State programs.
    In order to encourage more States (and other non-Federal entities) 
to take action to conserve wetlands, the Federal Government should move 
quickly to resolve remaining uncertainty about the scope of Federal 
regulatory authority under the Clean Water Act. This would be best 
achieved through a notice and comment rulemaking. As long as there is 
uncertainty about how Rapanos will be applied, States will have less 
incentive to act.

    Question 3. Both SWANCC and the Rapanos plurality suggested that 
the Corps' broad interpretation of its Clean Water Act jurisdiction 
``pushes the envelope'' of the Federal commerce power. If Congress 
pursues a legislative clarification of the Act's reach, how far can it 
go without exceeding its power under the Commerce Clause?
    Response. The precise scope of Congress's power to regulate 
commerce among the several States is a matter of some dispute. Under 
current Supreme Court precedent, this power can be used to regulate A) 
channels of interstate commerce, B) instrumentalities or persons and 
things in interstate commerce, and C) those activities that have a 
substantial effect on interstate commerce.
    As the Supreme Court made clear in Gonzales v. Raich, 545 U.S. 1 
(2005) if Congress uses the commerce power to erect a broad, nationwide 
regulatory scheme focused on economic activities, such regulations are 
not unconstitutional merely because they may encompass some activities 
that, taken in isolation, do not have such an effect on interstate 
commerce. This would suggest that Congress has broad power to regulate 
economic activities that lead to the destruction of wetlands as part of 
a larger economic regulatory scheme. This does not mean, however, that 
Congress's power extends to cover any and all activities that effect 
any and all lands with certain wetland characteristics, irrespective of 
those lands' connections to interstate commerce or navigable waters of 
the United States. In this regard it is worth noting that Justice 
Kennedy's concurrence, insofar as it limits Federal authority to those 
wetlands that have a ``significant nexus'' to navigable waters, ensures 
that the Clean Water Act does not exceed the scope of Congress's 
enumerated powers.
    Consideration of the limits of the Federal commerce power should 
not obscure the fact that the broadest assertion of Federal regulatory 
authority is not necessarily the most prudent exercise of such 
authority. The Federal Government has a greater interest in some 
environmental matters than in others. In particular, the Federal 
interest is greatest where Federal authorities have a comparative 
advantage in protecting particular environmental resource, such as may 
be the case with transboundary resources (e.g. navigable rivers and 
streams that cross State lines and interstate watersheds) or scientific 
research. The Federal interest is less strong in the case of relatively 
isolated intrastate waters and wetlands that States and localities are 
fully capable of protecting. The Federal Government can maximize the 
value of a Federal water pollution control program by focusing its 
efforts on those areas where the Federal interest is the greatest or 
States are particularly unable or unlikely to act. A program that is 
focused in this fashion is unlikely to exceed the scope of the commerce 
power.

    Question 4. Since the Rapanos ruling, a number of different 
stakeholders have suggested that Congress should legislate in order to 
clarify what is the extent of regulatory jurisdiction to protect 
wetlands. One current proposal is the Clean Water Authority Restoration 
Act, S. 912, which would provide a broad statutory definition of 
``waters of the United States.'' Some say that the statutory definition 
in that bill would conform the Clean Water Act to the administrative 
definitions used by the Corps and EPA prior to the SWANCC decision, but 
others say that the bill is even broader than the Corps and EPA rules. 
What is your interpretation of the definition in that legislative 
proposal?
    Response. S. 912 limits the definition of ``waters of the United 
States'' to the extent that such waters ``are subject to the 
legislative power of Congress under the Constitution.'' In my view, 
this language limits the scope of Federal jurisdiction to the scope of 
Congress's commerce power. Insofar as the prior Army corps and EPA 
regulations, as interpreted and implemented by the two Agencies, 
exceeded the scope of the Federal commerce power, S. 912 is less 
expansive.
    There is language in S.912 that could suggest a more expansive 
interpretation, however. For instance, finding 13 asserts that 
``Activities that result in the discharge of pollutants into waters of 
the United States are commercial or economic in nature.'' This finding 
suggests that all sorts of non-economic activities--including personal 
activities that individual landowners take on their own private land--
are subject to Federal jurisdiction, irrespective of their economic 
character. This is problematic. A bald declaration by Congress that a 
given activity is ``economic in nature'' does not make it so. See, 
e.g., United States v. Morrison, 529 U.S. 598 (2000) (noting and 
rejecting Congressional findings that gender-motivated violence is an 
economic activity).
                                 ______
                                 
      Responses by Jonathan H. Adler to Additional Questions from 
                             Senator Inhofe

    Question 1. In response to a question from Senator Jeffords, Mr. 
Clayton expressed concerns about the ability of States to ``take care 
of wetland delineations and wetland problems.'' As an example he cited 
a river that runs from most of North Dakota and South Dakota stating 
that ``There is no way one single State should have that kind of 
jurisdiction over wetlands.'' In your testimony you speak about history 
of State wetland regulation. Can you please comment on Mr. Clayton's 
concerns?
    Response. I believe that the concerns expressed by Mr. Clayton are 
misplaced. Nothing in the Rapanos decision in any way limits current 
Federal authority over interstate waters, such as rivers that run from 
one State into another. Nor does anything in Rapanos limit current 
Federal authority over wetlands adjacent to such waters. Further, 
insofar as the modification of nonadjacent wetlands could have a 
significant effect on such interstate waters, and thus have a 
``significant nexus'' to such waters, they too remain subject to 
Federal regulatory authority under the Clean Water Act.

    Question 2. There are numerous cooperative voluntary Federal 
programs designed to protect wetlands, including the Partners for Fish 
and Wildlife program of which I am a strong supporter, the Wetlands 
Reserve Program, North American Wetlands Conservation Program and the 
Conservation Reserve Program. Through these programs millions of acres 
have been protected across the country. These programs have 
successfully resulted in the protection thousands if not millions of 
acres of duck habitat in the Dakotas. Are these programs that respect 
the rights of private property owners but also protect the environment, 
an effective means of ensuring the protection of areas about which Mr. 
Clayton's members are concerned?
    Respons.e These programs are a very cost-effective and efficient 
means of conserving and restoring wetlands and other ecologically 
valuable lands. One reason these programs are so effective is that they 
enlist private landowners as partners in conservation, and encourage 
environmental stewardship on private land. By contrast, regulatory 
proscriptions of private land use engender hostility and resentment, 
and often discourage private landowners from cooperating in 
conservation efforts. Another reason these programs are particularly 
effective is because they are targeted upon the maintenance and 
protection of particular ecosystem services, such as the provision of 
waterfowl habitat. The section 404 program, on the other hand, is not 
targeted on the protection of particular ecosystem services. To the 
contrary, as I noted in my testimony, many regulatory decisions under 
section 404 are made without any meaningful consideration of the 
ecological impacts.

    Question 3. In Chief Roberts concurrence, he states that ``no 
opinion commands a majority of the Court on precisely how to read 
Congress' limits on the reach of the Clean Water Act.''(emphasis 
added). However, Professor Buzbee argues that Justice Roberts was in 
fact arguing that there was no majority opinion of the court. Do you 
agree that Justice Roberts was arguing that there was not a majority 
opinion of the Court particularly a majority that agreed to remand the 
case to the 6th Circuit?
    Response. While no single opinion articulated a rationale for the 
Court's holding that was accepted by five members of the Court, a 
majority of the Court did agree to remand the two cases to the U.S. 
Court of Appeals for the Sixth Circuit. This majority formed the basis 
of the Court's judgment. Further, as explained in Marks v. United 
States, there is a majority holding: ``that position taken by those 
Members who concurred in the judgments on the narrowest grounds.'' 430 
U.S. 188, 193 (1977). Under this standard, the concurring opinion of 
Justice Kennedy, and the grounds of agreement between Justice Kennedy 
and the plurality opinion authored by Justice Scalia, form the holding 
of the Court.
                                 ______
                                 
      Responses by Jonothan H. Adler to Additional Questions from 
                            Senator Jeffords

    Question 1. You state in your testimony that you are a fairly 
active outdoor recreationist and that wetlands provide many 
``ecological services'' on which your recreation depends. What types of 
outdoor recreation do you participate in, and what ecological services 
do wetlands provide to you? Do you believe the extent to which those 
``ecological services'' are available is likely to change as a result 
of the Rapanos--Carabell decision?
    Response. Since I was a child, and attended a school that spent one 
day each week at a rural farm, I have been an active outdoor 
recreationist, with an interest in hiking, backpacking, camping, 
wildlife viewing, fishing, and hunting, among other activities. These 
recreational activities rely upon many ecosystem services provided by 
wetlands, including habitat for both aquatic and terrestrial species.
    These interests continue to the present. Indeed, immediately 
following the Committee's August 1 hearing, I left for a fly fishing 
trip with my father in western Montana. My current home in located 
alongside Summit County, Ohio's hike and bike trail that winds along 
the Cuyahoga National Park, our community relies upon local well water, 
and my backyard opens into locally protected wetlands. Thus, my 
interest in wetlands and the ecosystem services they provide is more 
than academic.
    Whether the availability of the ecosystem services upon which my 
(and many others') recreational activities rely will be negatively 
affected by the Rapanos decision depends primarily upon the responses 
of Federal agencies, the Congress, State and local Governments, and 
conservation organizations. If the Federal Government responds to 
Rapanos like it did to the SWANCC decision, I believe this will lead to 
continued litigation, conflict, and regulatory uncertainty--all of 
which will discourage the development of new conservation strategies 
that can protect wetlands and the ecosystem services that they provide. 
On the other hand, if the Federal Government takes the opportunity to 
refocus its efforts on those waters and wetlands in which the Federal 
interest is the greatest, and makes the boundaries of Federal authority 
clear to State and local Governments, I think that many States will 
augment their existing wetland conservation efforts to complement those 
of the Federal Government, and the net result will actually be an 
overall improvement in wetland conservation.
    Question 2. One of Congress' clear goals in the Clean Water Act is 
to ensure all Americans have clean and safe water for drinking water 
supplies, fishing, swimming and other recreation, and so on. But 
leaving it to the States cannot guarantee this goal is met, especially 
if some States do not enact strong clean water laws. Isn't ensuring all 
Americans have access to clean water a legitimate Federal goal?
    The Federal Government clearly has a role in preventing one State 
from imposing environmental harms upon another. If an upstream State 
dumps pollution that harms a downstream State, the latter State should 
have a Federal remedy. At present, however, relatively little of the 
Clean Water Act (or, indeed, of Federal environmental law as a whole) 
is focused upon such concerns. Such a policy can ensure that all 
Americans have access to the level of water quality that they desire.
    Where pollution occurs in a given State, and the costs of that 
pollution are not externalized on downstream jurisdictions, the Federal 
interest is less clear. Indeed, I do not accept the premise that 
Federal officials care more about the health and safety of local 
communities more than do those communities themselves; nor do I believe 
that Federal officials are better able to make the various economic and 
environmental trade-offs required to set water quality goals.
    The lesson of uniform Federal mandates is that national ``one-size-
fits-all'' approaches too often become ``one-size fits-no-one In the 
case of water quality, this committee is well aware that Federal 
drinking water mandates forced some communities to squander valuable 
public health resources testing for nonexistent contaminants. This was 
not in the public interest, and Congress should seek to avoid such 
mistakes in the future.

    Question 3. In the wake of the SWANCC decision, how many States 
stepped in and adopted laws to make sure that the so-called 
``isolated'' waters at issue in that case were protected by State law? 
How many did not?
    Response. In the wake of the SWANCC decision, at least 19 States 
considered or adopted additional protections for isolated waters. Ohio, 
for example, adopted an ``emergency measure'' to protect isolated 
wetlands in July 2001. Wisconsin, Indiana, North Carolina, and South 
Carolina are among those States that took action in response to the 
SWANCC decision. The specific site at issue in SWANCC is also 
instructive. After it became clear that the Federal Government did not 
have the authority to prevent the construction of a balefill on the 
site, local Government agencies that had previously supported the 
project acted quickly to stop the project and conserve the land at 
issue.
    Those States that did not enact protections for isolated wetlands 
after SWANCC failed to act for one of several reasons. First, some 
States already had statutory or regulatory protections for isolated 
wetlands in place. Indeed, several States have long maintained greater 
wetland protections than the Federal Government. Among the States that 
the Association of State Wetland Managers reports have comprehensive 
wetland protection programs are Connecticut, Florida, Maine, Maryland, 
Massachusetts, Michigan, Minnesota, Michigan, New Hampshire, New 
Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and 
Virginia. Over 20 States now provide some protection for the sort of 
isolated freshwater wetlands most affected by the SWANCC decision.
    Some States were likely discouraged from acting due to the 
tremendous uncertainty about the extent to which State action was 
necessary after SWANCC, including conflicting Agency applications and 
an interpretive split in the lower courts. This sort of uncertainty 
discourages States from acting insofar as it is less clear what the 
benefits of additional State action will be.
    It is also important to note that neither SWANCC nor Rapanos did 
anything to limit the scope of incentive-based conservation programs, 
such as those referenced in my testimony. Insofar as some of these 
programs are focused on the conservation of isolated wetlands, they may 
also serve to fill some of any regulatory ``gap'' created by these 
decisions.

    Question 4. Since about half of the States have opted to rely on 
Federal protections with State laws saying that clean water or other 
environmental laws can be ``no stricter than'' Federal laws, doesn't 
that undermine your theory that these are largely State matters, and as 
a practical matter, doesn't it mean that these States will have a 
difficult time stepping in to protect streams, other tributaries and 
wetlands if these waters do not have Federal protections?
    Response. Not at all. To the contrary, the fact that many States 
have decided to adopt Federal standards confirms the claim I have made 
in my research that Federal regulatory decisions can effect State 
regulatory decisions. For whatever reason, some States have decided 
that Federally mandated standards are equal or greater than the levels 
necessary for the protection of environmental values within those 
States. If Federal protection contracts, nothing prevents States from 
revisiting this decision. So long as Federal law does not preempt more 
expansive State regulations, States remain free to adopt new regulatory 
protections, as many States have done in the past decade.

    Question 5. How do you explain that fact that a majority of States 
filing a brief in the Rapanos--Carabell cases--34 plus the District of 
Columbia--argued on the side of the Bush administration in favor of 
strong Federal protections, and only 2 argued for weaker Federal 
standards?
    Response. State Governments have always preferred for the Federal 
Government to pay for and provide services and programs that States are 
fully capable of providing. Therefore, the amicus briefs filed by the 
various states prove nothing other than States would like for the 
Federal Government to devote its resources to protect ecological values 
that are important in these States. That State Governments would prefer 
Federal regulation--thereby avoiding having to dedicate their own 
resources to such programs (and avoiding having to take responsibility 
and be accountable for the consequences of any public disapproval with 
the implementation of the program)--says nothing about the extent to 
which States are capable and willing to adopt programs of their own. 
Indeed, as I noted in my testimony, the history of wetland regulation 
provides strong evidence that States are both willing and capable of 
adopting effective wetland conservation measures. Insofar as Congress 
believes that these programs are insufficient, it would be more 
effective for the Federal Government to encourage and support the 
expansion of such programs than to seek to implement the broadest 
Federal regulations over top of State programs.

    Question 6. You have written elsewhere that ``[I]t seems likely 
that some environmental statutes exceed the scope of the Commerce 
Clause power . . . '' In particular, you have identified the Clean 
Water Act as a statute that is particularly vulnerable. But in his 
testimony, Professor Buzbee states that five justices explicitly 
rejected the arguments made in Rapanos--Carabell that the Commerce 
Clause limits the ability of Congress to assert Federal Clean Water Act 
authority over the tributaries and wetlands at issue in the case. Do 
you agree that the Commerce Clause arguments were rejected by a 
majority of the Rapanos--Carabell Court?
    Response. No. As in the SWANCC decision, a majority of the Court 
adopted a narrow construction of the meaning of ``waters of the United 
States'' so as to ensure that the Clean Water Act did not exceed the 
scope of the Commerce Clause. As Justice Kennedy noted in his 
concurrence:
    In SWANCC, by interpreting the Act to require a significant nexus 
with navigable waters, the Court avoided applications--those involving 
waters without a significant nexus--that appeared likely, as a 
category, to raise constitutional difficulties and federalism concerns. 
. . 
    as exemplified by SWANCC, the significant-nexus test itself 
prevents problematic applications of the statute.
    This does not constitute a rejection of commerce clause arguments. 
To the contrary, commerce clause concerns lie behind the interpretation 
adopted by the Court in Rapanos just as they did in SWANCC.

    Question 7. In 2003, in response to the EPA's rulemaking on this 
subject, my home State of Vermont commented that, ``While the State 
could amend its statutes to allow for regulation in smaller watersheds, 
the net result would be to shift the costs of regulation from the 
Federal Government to the State.'' This appears inconsistent with your 
belief that States are clamoring to take over clean water regulation on 
their own. How do you respond to these comments?
    Response. I have never claimed that States are ``clamoring to take 
over clean water regulation on their own.'' Rather, I have claimed that 
sates are willing and able to do so if the Federal Government reduced 
its role. I have also noted that State Governments may well prefer to 
have services provided to their citizens at the cost and expense of the 
Federal Government, and that State officials may wish to avoid the 
responsibility for implementing potentially controversial regulatory 
programs.

    Question 8. In 2003, my home State of Vermont commented to EPA in 
response to the Agency's rulemaking on this topic that a reduction in 
Federal permit jurisdiction will shrink the State's opportunity under 
section 401 of the Act to ensure that Federal projects comply with 
State water quality standards. In this manner, States' rights would 
actually be limited by reducing the jurisdiction of the Clean Water 
Act. How do you respond to this point?
    Response. I have not fully examined the potential impact on section 
401, but I would be surprised if the impact was all that significant. 
Given that section 401 applies to Federal projects, however, it would 
be relatively easy for congress to impose greater protections for State 
interests in all Federal projects without extending the scope of CWA 
authority.

    Question 9. You suggest that the Federal Government's interest in 
preventing purely intrastate pollution of waterbodies is less than 
clear. Does the Federal Government have an interest in the safety of 
drinking water supplies? What about the health of fisheries? Are you 
suggesting that Congress or the agencies might not be able to protect 
intrastate lakes from industrial discharges?
    Response. If congress sought to focus on industrial discharges, as 
such, I do not believe there would be any constitutional barrier to 
such regulations under current Commerce Clause jurisprudence. 
Similarly, I think that current precedent would not in any way preclude 
the comprehensive regulation of fisheries. Such regulations are quite 
different from the control of private land-use and each and every 
parcel exhibiting wetland characteristics for a sufficient portion of 
the year. To suggest that the scope of Federal regulation far exceeds 
the scope of legitimate Federal interests is not to say that the 
Federal Government should have no role.
    In the case of drinking water supplies, I think that the adoption 
of Federal standards has been a mixed blessing, and it is clear that 
some States concur with this assessment, as States have filed suit in 
Federal court to block the implementation of Federal standards that 
those States did not believe were in the best interests of their 
citizens.

    Question 10. Why do you believe that new regulations are the answer 
when this is fundamentally a matter of what Congress intended to 
protect?
    Response. I believe that Federal regulations can be adopted more 
quickly and can provide greater certainty than new legislation. 
Irrespective of whether Congress enacts revisions to the Clean Water 
Act, administrative regulations will be required to fill out the 
interstices and resolve inevitable ambiguities left in the statutory 
language. Furthermore, the Corps and EPA have the administrative 
expertise to address such specific concerns in a manner that Congress 
do esnot.

    Question 11. One reason you advocate limiting the scope of waters 
protected by the Federal law is that Federal regulatory resources are 
limited. Do States have the resources to protect these waters? Please 
be specific as to which parts of State budgets are robust enough to 
ensure water quality protection.
    States are already responsible for the bulk of frontline 
environmental management and enforcement. States conduct the vast 
majority of environmental inspections and initiate the bulk of 
environmental enforcement actions. In the specific context of wetlands, 
many State already have wetland protection programs of their own, and 
quite a few of these programs exceed the scope and protectiveness of 
the Federal Section 404 program.
    If this committee is concerned that States lack the resources to 
play a greater role in wetland protection it could make it easier for 
States by either a) reducing the burden of existing environmental 
mandates on State Governments, or b) providing States with funding for 
State wetland programs.

    Question 12. You claim that ``Justice Kennedy's concurring opinion 
explicitly rejected Justice Stevens' near-limitless approach to Federal 
jurisdiction, so the latter provides no useful guide for determining 
the CWA's jurisdictional limits.'' Since Justice Kennedy says that the 
``plurality's opinion is inconsistent with the Act' s text, structure, 
and purpose,'' is it safe to assume that you believe that Justice 
Scalia's approach is entitled to no weight?
    Response. No. Justice Scalia's plurality opinion--unlike Justice 
Stevens dissent--forms part of the majority in support of the court's 
judgment. Justice Scalia's opinion is thus relevant in determining the 
scope of the Court's holding in a way that Justice Stevens' is not.
                                 ______
                                 
      Responses by Jonathan H. Adler to Additional Questions from 
                           Senator Murkowski

    Question 1. As an expert in this field, can you discuss the concept 
of a ``significant nexus'' as applied to remote wetlands in northern 
Alaska that are not connected to navigable waters, where wetlands are 
frozen much of the year and where the wetlands are underlain by an 
impermeable layer of permafrost?
    Response. I am not all that familiar with the specific ecological 
conditions of remote wildlands in Northern Alaska, so I do not feel 
qualified to comment on this decision will effect such lands.

    Question 2. We heard Mr. Gumbles and Mr. Woodley suggest that their 
agencies' next step in this process is to provide ``guidance'' on the 
way Agency representatives should respond to the Rapanos ruling. In 
your opinion as an expert, what are the relative merits and detriments 
to such ``guidance'' in comparison to establishing a formal rule?
    Response. A guidance can serve to inform the regulated community 
how the Federal Government plans to respond to the Rapanos decision. 
Guidance documents can be issued relatively quickly, but such documents 
do not bind the public, however, nor do they receive significant 
deference from courts. As a result, a guidance document can only 
provide a limited amount of regulatory certainty, and should not be 
used as more than an interim measure. To provide real certainty as to 
the scope of Federal regulatory authority under the CWA post-Rapanos, 
the Army Corps and EPA should initiate a Notice of Proposed Rulemaking 
in order to develop new regulations defining the scope of ``waters of 
the United States.''

    Question 3. In your opinion, if a given wetland has no significant 
nexus with navigable waters, are there State, municipal, or Federal 
laws other than the Clean Water Act that could be used to protect its 
value for wildlife habitat, recreation or other purposes?
    Response. Numerous States and local Governments have wetland 
protection statutes of their own. In addition, there are several 
incentive-based Federal programs that fund the conservation and 
restoration of wetlands that are not limited to those wetlands that 
have a significant nexus with navigable waters.

                               __________
     Testimony of William W. Buzbee Professor of Law, Director of 
    Environmental and Natural Resources Law Program Emory Law School

    I thank the Senators and their staff for this opportunity to 
discuss the Supreme Court's recent decision in the joint cases, Rapanos 
v. United States and Carabell v. U.S. Corps of Engineers (hereinafter, 
Rapanos).
    I am a Professor of Law at Emory Law School, where I direct Emory's 
Environmental and Natural Resources Law Program. During my legal career 
I have worked for a private law firm, for industry, for municipal and 
State clients, and also for environmental groups. I will be a Visiting 
Professor for a portion of this coming year at Cornell Law School, have 
been a Visiting Professor at Columbia Law School, and have also, for 
Columbia and Amsterdam Law Schools in Europe, taught lawyers, judges 
and Government officials seeking an introduction to American law. I am 
a graduate of Columbia Law School and Amherst College.
    I suspect that I was invited here primarily due to my involvement 
with the Rapanos case. I co-authored a friend of Court amicus curiae 
brief on behalf of a bipartisan group of four former administrators of 
the United States Environmental Protection Agency, or EPA. These four 
administrators--Carol Browner, Russell Train, Douglas Costle, and 
William Reilly--all shared the same goal of preserving thirty years of 
consistent approaches to protecting the ``waters of the United 
States.'' Despite their different years of Government service, 
different political parties, and even despite some disagreements with 
aspects of the current administration's policies, they and I filed an 
amicus brief in strong support of the Bush administration's position 
seeking to sustain these long-existing protections of America's 
``waters.''
    The Supreme Court's Rapanos decision, with a fragmented series of 
opinions and no single majority opinion, undoubtedly was less than the 
height of clarity. Still, as I'll discuss more in a moment, it and 
still good Supreme Court precedent does create some clear boundaries 
for what is the law and makes quite clear the choices faced by the 
nation's legislature. I'll organize my comments into three sections:

    1) Why were the stakes in Rapanos so high;
    2) What did the Court actually do to the law in Rapanos;
    3) What are appropriate political responses to Rapanos.

                        I. THE STAKES IN RAPANOS

    The consolidated Rapanos and Carabell cases attracted a great deal 
of attention, and for good reason. The issue in these cases could not 
have been more central to the protections and huge benefits created by 
the Clean Water Act. What kinds of wetlands and tributaries that are 
not ``navigable in fact'' are protected from pollution discharges, 
dredging or filling under the statute? In both cases, real estate 
developers sought permission to fill in areas characterized as 
protected jurisdictional waters by the Army Corps of Engineers. One 
case involved a wetland adjacent to a tributary of a traditionally 
navigable water, while the other dealt with wetlands separated by a 
manmade berm from an adjacent tributary.
    This question about which ``waters'' are protected by the Clean 
Water Act is the linchpin of the statute. Only such jurisdictional 
``waters'' are subject to National Pollution Discharge permits under 
Section 402 of the statute, the key statutory provision protecting 
waters from industrial pollution discharges, including toxic effluents. 
Similarly, only such jurisdictional waters are protected by Section 404 
and related ``dredge and fill'' regulations from frequent industry and 
developer pressures to fill in wetlands or tributaries. America's 
waters are much cleaner now due to broad protection of such waters from 
direct pollution discharges, as well as preservation of wetlands and 
tributaries for their pollution trapping, flood control, runoff 
storage, and use as breeding grounds, as well as for their heavy use 
for fishing, hunting and recreational purposes.
    The Clean Water Act's explicit text talks about its goal of 
``restoring and maintaining the chemical, physical and biological 
integrity of the Nation's waters.'' If the Supreme Court in Rapanos had 
accepted the arguments of the real estate developer petitioners and 
aligned parties and had limited protection only to navigable-in-fact 
waters, most of America's long-protected waters would have lost Federal 
protection. Huge swaths of the West, where rains are infrequent and 
many tributary beds sit empty much of the year, or wetlands and 
tributaries near the beginning of river basins, were at risk. Decades 
of environmental progress stood in the balance.
    Over thirty years of consistent regulatory treatment has protected 
far more than just rivers usable by large ships. Most importantly, in 
1985 in the Riverside Bayview Homes case, the Supreme Court unanimously 
agreed that Federal jurisdiction extends to wetlands adjacent to 
navigable-in-fact waters. The Court reached this decision with heavy 
emphasis on the ecological and hydrological functions of such waters, 
and the need for deference to expert regulators' judgments and 
statutory language reflecting the goal of protecting such waters. The 
Supreme Court agreed with regulators in Riverside that far more than 
just navigable-in-fact (or ``traditional navigable'') waters are 
federally protected. The only exception to this consistent protection 
is the Supreme Court's bare majority ruling in 2001 in Solid Waste 
Agency of Northern Cook County (SWANCC), where the Court held that 
Federal law does not protect isolated wetlands purportedly reached by 
Federal law due to migratory bird use. The Rapanos case thus presented 
a major opportunity for opponents of the Clean Water Act's broad 
jurisdiction. In the end, however, a majority of the U.S. Supreme Court 
declined the opportunity to weaken the law's protections.

              II. WHAT THE RAPANOS COURT ACTUALLY DECIDED

    The reconfigured Supreme Court, with newly appointed Chief Justice 
Roberts and Justice Alito, produced a series of opinions in Rapanos. 
Sadly, there is no single majority opinion speaking for five or more 
justices upholding these long-established protections of America's 
waters. We then must look at votes and opinion content to understand 
the decision. Most confusingly, five justices agreed that the Army 
Corps of Engineers had to do more to establish its jurisdiction in 
these two consolidated cases, but five justices overwhelmingly agreed 
with a broad protective rationale for jurisdiction in these cases. Five 
justices? Justices Kennedy in concurrence, and Justices Stevens, 
Souter, Ginsburg, and Breyer in dissent, strongly and explicitly 
disagreed with virtually all aspects of a plurality opinion penned by 
Justice Scalia.
    The question for all of us today, regulators, and those 
interpreting the law, is what does all of this add up to? Where is the 
law left? Counting heads and parsing Rapanos and the Court's other 
major ``waters of the United States'' decisions, there actually remains 
a great deal of clarity. Most protections of the Clean Water Act's 
long-established regulations remain. Significantly, no justice claims 
to overrule or cut back the Court's unanimous 1985 Riverside decision. 
Adjacent wetlands remain protected due to their hydrological and 
ecological functions. All justices also continue to agree that the 
Clean Water Act protects more than just ``navigable-in-fact'' waters. 
The key regulations defining what count as ``waters of the United 
States'' were not struck down. A majority of justices also are sticking 
with the lack of Federal protection for isolated wetlands reached due 
to migratory bird use.
    So how do we interpret these splintered set of opinions? As Chief 
Justice Roberts basically states in his own brief concurring opinion, 
through citations to earlier Court opinions, the narrowest opinion that 
shares greatest ground with other justices becomes the key opinion for 
future application. The key swing opinion is that of Justice Kennedy. 
Both by itself, and also if looked at with the Justice Stevens 
dissenters' opinion with which Justice Kennedy agrees repeatedly, most 
of the protections long established under the statute and implementing 
regulations remain intact.
    Before discussing Justice Kennedy's opinion, it is important to 
state clearly that Justice Scalia's opinion for a plurality of justices 
does not represent the law. Relying heavily on a dictionary created 
over a decade before the statutory language at issue, Justice Scalia 
and his fellow plurality justices claimed that waters are federally 
protected only if they are relatively permanent standing or 
continuously flowing waters. This view, if the Court's, would have 
constituted a revolutionary discarding of long-established regulatory 
approaches, as well as a radical rejection of the twenty-year-old 
Riverside Bayview Court precedent (although these justices do not 
concede such an intent or effect).
    However, Justice Scalia does not have the votes to speak for the 
Court. Justice Kennedy repeatedly rejects the Scalia opinion's approach 
as ``inconsistent with the Act's text, structure, and purpose,'' as do 
the dissenters. For Supreme Court opinions to constitute law, you need 
to find five justices in agreement, five justices in assent regarding 
the rationale for the decision. Justice Scalia came up one vote short. 
It is only a plurality opinion because of agreement on the need for a 
remand.
    Justice Kennedy's opinion is the key. Justice Kennedy picks up on 
SWANCC language to assert that there must be a ``significant nexus'' 
between wetlands or tributaries to navigable waters or waters that 
could be navigable for them to be jurisdictional waters subject to 
Federal protection. Critically important, the sorts of significant 
links he sets forth are many and are sensitive to the statute's focus 
on biological and ecological integrity. Wetlands or tributaries can be 
federally protected if ``alone or in combination with'' similar lands 
and waters, they ``significantly affect the chemical, physical or 
biological integrity of other covered waters more readily understood as 
`navigable.''' Non-navigable tributaries are ``covered'' if alone or 
with ``comparable'' waters they are significant. In addition to giving 
due heed to the usual goals of protecting water quality and fishery 
resources long protected and affirmed in Riverside Bayview Homes, 
Justice Kennedy further refers to ``integrity'' goals, as well as 
concern with ``functions . . .  such as pollutant trapping, flood 
control, and runoff storage.'' Only if wetlands or tributaries have 
insubstantial linkages and effects, alone or in combination with other 
similar lands or waters, might they lose protection. Justice Kennedy's 
``significant nexus'' articulation ends up creating an overwhelming 
overlap with long-established regulatory approaches, as well as with 
the approaches articulated in the Justice Stevens Rapanos dissent for 
four other justices.
    Also significant is Justice Kennedy's and the dissenters' repeated 
call for deference to expert regulators' judgments about the 
significance of both categories of waters and particular waters subject 
to jurisdictional determinations. Justice Kennedy clarifies the many 
types of uses and functions that are federally protected, but leaves to 
regulators room to assess the significance of areas that might, upon 
first examination, not look like protected waters. Such deference is 
notably lacking in the Justice Scalia opinion.
    When Justice Kennedy and the dissenters apply their approaches to 
the Rapanos and Carabell facts, both intimate that on remand Federal 
jurisdiction looks likely to be found. Justice Kennedy differs from the 
dissenters in asking the Army Corps to do a better job in establishing 
the nexus he articulates.
    Lastly, no five-justice majority in Rapanos cut back on Federal 
regulatory power under the Commerce Clause. The Court in granting 
certiorari had considered making this a constitutional decision under 
the Commerce Clause, a goal numerous industry, property rights and 
anti-regulation groups had supported in their briefs. Five justices, 
however, explicitly rejected these arguments. The Justice Scalia 
plurality would have used constitutional concerns to read the statute 
narrowly and limit Federal power, but only four justices adopted this 
view. If anything, the five justices rejecting a Commerce Clause attack 
broadened Federal power from where it might have gone after SWANCC.
    In the United States judicial system, five aligned votes by Supreme 
Court justices make a binding precedent. As indicated by the brief 
concurring opinion of Chief Justice Roberts, if the Court is 
splintered, the narrowest opinion, here Justice Kennedy's, would be the 
key. As the Chief Justice states through his citation to Marks v. 
Whitney, the question is whether a ``single rationale explaining the 
result enjoys the assent of five Justices.'' Here, Justice Kennedy's 
concurring Rapanos opinion shares substantial overlap with the 
dissenters' approaches. The dissenters would have deferred even more 
than Justice Kennedy to regulators' judgments, but in all parts of 
their opinion, the dissenters would protect waters at least to the 
extent set forth by Justice Kennedy. They repeatedly and explicitly 
agree with the rationales for Federal protection set forth in the 
Justice Kennedy concurrence. Whether taken by itself as the ``narrowest 
opinion,'' or as an opinion with underlying rationales agreed upon by 
five justices, Justice Kennedy's opinion is the key.

                  III. POLITICAL RESPONSES TO RAPANOS

    The next question is how the political branches should respond to 
Rapanos. The Clean Water Act's protections have not been disastrously 
curtailed, as many feared. Justice Kennedy's approach in fact appears 
to leave most protections in place. He and the plurality justices, 
however, do now demand a more rigorous regulatory showing of the 
significance of waters before they can be deemed ``waters of the United 
States.''
    They indicated that this significance can be shown either in new 
promulgated regulations or perhaps policy or interpretive documents, or 
on a case-by-case basis.
    I believe that although the content of the law has not changed 
significantly, Justice Kennedy's forcing the Army Corps to establish 
more authoritatively waters' significance will have harmful effects. I 
anticipate more regulatory challenges by permit seekers. Administrative 
agencies like the Army Corps respond to many pressures, but most are 
risk averse and seek to avoid litigation. Justice Kennedy's 
``significant nexus'' test, while in substance mainly a modest re-
articulation of the law and regulations as they stood, does add some 
new language that lawyers and permit seekers will isolate and seek to 
use. He also did require a remand in these cases, even though he 
anticipated that the Government's assertion of jurisdiction was 
justifiable. With increased industry and developer pressure, the risk 
is that the Army Corps will too readily fold, declining jurisdiction 
where it anticipates litigation or a strong regulatory challenge. Vast 
swaths of hugely important wetlands and tributaries around the country 
are at risk.
    This leaves three remaining main questions. Can the Army Corps and 
U.S. EPA either in regulations or specific permitting decisions cut 
back on Clean Water Act protections long afforded? The second question 
is whether the legislature needs to act. The third concerns which 
response is preferable.
    I believe that only quite modest agency modifications of what 
``waters'' are protected could comport with the law. Any regulations 
must conform to unchanged statutory language with its explicit 
``integrity'' goals, the Riverside Bayview Homes decision, and Justice 
Kennedy's concurring Rapanos decision. Any change in new regulations 
would have to confront old regulations and justify any change. Justice 
Kennedy's emphasis on the statute's integrity goals and functions such 
as pollutant trapping, flood control, and runoff storage, along with 
these other legal authorities, establish boundaries on what agencies 
can now do. Any significant cutting back on protected waters would 
deserve judicial rejection and legislative criticism. It would also 
surely engender litigation. Strengthening the regulatory justifications 
for current regulatory definitions would be more likely to withstand 
attack, but any changes of a strengthening sort would still provoke 
litigation challenging either new regulations or case-specific 
regulatory judgments.
    Should the legislature act, either in addition to or in lieu of 
regulatory action? I think that the legislature should seriously 
consider enacting into statutory law protections like those long 
afforded by decades of Clean Water Act regulations articulating what 
sorts of ``waters of the United States'' are protected. For several 
reasons, this seems a more prudent and effective approach than hoping 
for a regulatory fix. First, this is not a politically partisan issue, 
but a series of regulatory judgments that have long been retained, over 
three decades, by both Republican and Democratic administrations. The 
Bush administration in Rapanos asked the Court to uphold the Federal 
assertions of jurisdiction and stood by existing regulations. The Bush 
administration was joined by dozens of States, my bipartisan group of 
four former EPA administrators, and many environmental groups. This is 
truly a rare area of bipartisan agreement, and an area where the States 
and Federal Government are in overwhelming agreement.
    Such a legislative fix, making statutory these stable regulatory 
interpretations, would create several benefits. First, they would 
promote stability in the law by retaining categories and approaches 
deeply engrained in the law, and well known to Federal and State 
regulators and lawyers and engineers counseling the private sector. 
Second, by enacting a legislative fix, we could avoid virtually 
inevitable costly and confusing litigation challenging any new 
regulations regarding ``waters.'' Such a statutory amendment could also 
preclude the risk that the confusing Rapanos opinions will be misread 
by judges, as already has happened in one trial court in Texas, where a 
judge read the Justice Scalia plurality as the key, rendering the 
Federal Government powerless to respond to an oil spill in a tributary 
bed. Lastly, the durable regulatory judgments that would now be 
statutory law are well grounded and tested. To protect America's waters 
does require more than just attention to continuously flowing rivers. 
It would be a rare step in American law if this legislature stood by 
and allowed a substantial weakening of the Clean Water Act's 
protection. Retention of bipartisan, well-established regulatory policy 
through legislative action would thus create many benefits that would 
be lacking with new regulatory action.
    This past year, the South and Northeastern United States have 
experienced catastrophic incidents where storms causing floods led to 
devastating and costly losses.
    These losses occurred even with the fruits of three decades of 
regulatory protections for wetlands and tributaries. If executive 
agencies or legislators now use Rapanos as an excuse to cut back on 
protection of wetlands and tributaries, future storms will cause even 
more devastating floods. Pollution control progress will cease. Huge 
portions of the United States, especially where water is scarce or 
where rivers originate, could lose Federal protection from pollution 
discharge requirements, as well as dredging and filling prohibitions. I 
hope that the Senate will take steps to discourage any such backwards 
steps.
    I thank this committee for this opportunity and would be pleased to 
answer any questions.
                                 ______
                                 
      Responses by William W. Buzbee to Additional Questions from 
                             Senator Chafee

    Question 1. Based on the opinions of the plurality and Justice 
Kennedy, do you believe isolated, intrastate, nonnavigable wetlands are 
now completely outside the geographic boundaries of Federal 
jurisdiction? Does this continue to be based solely on the Migratory 
Bird Rule, or is it more extensive?
    Response. I do not believe that Rapanos changed or modified the 
impact of the SWANCC ruling, nor could it. Rapanos involved different 
questions, but in parsing the SWANCC ruling Justice Kennedy necessarily 
had to characterize the SWANCC precedent. He did so, largely 
reiterating its core holding and language. SWANCC dealt with particular 
wetlands found to be isolated and jurisdictional only because they were 
used by migratory birds. It did not involve a case where the Army Corps 
claimed jurisdiction under other portions of its Clean Water Act 
regulations. How the Court would deal with other regulatory 
justifications for jurisdictional determinations could not be resolved 
by SWANCC, nor could it be resolved in Rapanos, apart from the 
particular settings presented by each case.
    Most significantly, Justice Kennedy's ``significant nexus'' test 
offers a variety of rationales for holding waters jurisdictional, even 
where waters may lack a direct hydrological connection. He also 
harmonizes the still good law articulated in the Riverside Bayview 
Homes decision, which clearly stated that adjacent wetlands are 
legitimately subject to protection under the Clean Water Act and its 
regulations. Putting these passages together, I think it clear that 
other rationales for protecting ``waters'' remain available under Army 
Corps regulations, and that SWANCC and Riverside Bayview Homes both 
remain good law that must be applied along with Rapanos.

    Question 2. On June 28th, the U.S. District Court for the Northern 
District of Texas ruled in U.S. v. Chevron Pipe Line Company that the 
defendant in the case is not subject to Clean Water Act or Oil 
Pollution Act penalties stemming from an oil spill because the waters 
in question are not subject to jurisdiction under the statutes.
    In the opinion, U.S. District Judge Sam Cummings stated he relied 
on 5th Circuit Court of Appeals precedent rather than the plurality 
ruling in Rapanos because the Supreme Court failed to provide clear 
guidance on which waters are jurisdictional under Rapanos.
    Based on your experience, how will the past precedents of the 
Circuit Courts versus the Supreme Court's ruling in Rapanos be used to 
address the scope of the Clean Water Act?
    Response. This district court opinion is an unusual ruling that I 
believe will and should be rejected by other courts. The District Court 
basically found Justice Kennedy's opinion difficult to apply, so simply 
reverted to the Justice Scalia plurality opinion that commanded only a 
minority of the justices, as well as to his own circuit's pre-Rapanos 
precedent. As I discuss more at length in response to your third 
question, and to the first question of Senator Inhofe, all courts 
working with the Rapanos case need to figure out the legal rationale 
assented to by at least five justices of the Supreme Court. The opinion 
garnering majority support was by Justice Kennedy, whose rationales for 
protecting ``waters'' was explicitly joined in most respects by the 
four dissenters. They would have gone even further, but they 
undoubtedly and explicitly stated overwhelming agreement with Justice 
Kennedy's articulation of the law regarding what sorts of waters are 
protected by the Clean Water Act. Justice Kennedy also agreed with 
their rationales, acknowledging that in application, their approaches 
might differ little. Those five justices also explicitly rejected the 
Justice Scalia plurality opinion's articulation of the law.
    The obligation of executive agencies and lower courts, and even the 
Supreme Court in future cases where it construes its own precedents, is 
to apply the legal rationale that commands a Supreme Court majority. 
This is often difficult work, but the Supreme Court's position in our 
legal system and the importance of abiding by precedents under the 
doctrine of stare decisis demands nothing less. I believe the district 
court erred in turning to Justice Scalia's plurality opinion and its 
own circuit's precedents pre-dating the Court's Rapanos decision. Lower 
court precedents must be re-analyzed in light of later Supreme Court 
decisions. Minority Supreme Court views are not the law.

    Question 3. The Supreme Court's plurality ruling in the recent 
Texas redistricting case League of United Latin American Citizens, et 
al. v. Perry, et al., appears to raise into question the long-standing 
high court precedent of how to interpret plurality rulings. Rather than 
a controlling opinion of the Court being determined on the ``narrowest 
grounds'', it now appears that more leeway would be provided to 
individual justices to ``mix and match'' their views in developing a 
controlling opinion. What is your view on how plurality decisions 
should be interpreted based on this recent Texas case decision?
    Response. This question relates to the Marks precedent and the 
issue of how lower courts and executive agencies should work with cases 
resulting in fragmented decisions. I see Latin American Citizens more 
as illuminating and confirming the core logic of Marks, than changing 
or ``call[ing] into question'' how one deals with cases resulting in 
fragmented opinions, with none commanding a clear majority on all 
results. To answer your question requires a brief reexamination of 
these interrelated precedents about how one construes Court precedents. 
The bottom line, however, is that if one goes back to look at Marks, 
discussion of Marks in Grutter and an array of lower court decisions, 
and the Court's clear majority portions of the Latin American Citizens 
opinion authored by Justice Kennedy, they all point in the same 
direction. The question is whether one can find in several opinions a 
shared rationale (or what some might call the law articulation) adding 
up to a majority of the Supreme Court. By this, I mean a shared 
explanation of what the law requires courts and agencies to do in this 
and future similar situations.
    In Marks, the earlier case being construed resulted in fragmented 
decisions, but common rationale strains and agreements on the relief 
provided were agreed to by five justices. Describing that setting in 
that particular case, Marks confirmed that the common strains of the 
five justice's opinions added up to a majority Supreme Court precedent. 
There, in Marks, five justices ``assented'' to a common ``rationale,'' 
as well as relief provided.
    The analytical problem left unresolved by Marks is what courts 
should do when a precedent involves the less common setting of a 
majority that agrees on the relief ordered (a remand to the lower court 
and probably ultimately the Army Corps in Rapanos), but the majority 
articulation of a legal rationale involves a different majority of 
justices.
    It is the latter situation that agencies, courts and litigants 
confront in the Rapanos precedent, where the Court broke down into a 4-
1-4 configuration. The Justice Scalia opinion was joined by only three 
other justices. As the Rapanos decision states, Justice Scalia's 
opinion only announced the judgment of the Court, not an opinion for 
the court. In addition, Justice Scalia's opinion explicitly rejected 
the approaches articulated by the Justice Kennedy concurrence in the 
judgment, as well as the approaches of the dissenters. Justice Kennedy, 
in turn, agreed only with the plurality opinion's judgment that there 
was a need for a remand, explicitly rejecting the rationale stated by 
Justice Scalia's plurality opinion. In contrast, Justice Kennedy 
repeatedly embraced the dissenters' articulation of the law, and the 
dissenters repeatedly embraced the criteria articulated by Justice 
Kennedy to be applied in determining what sorts of waters are protected 
by the Clean Water Act. In short, five justices agreed on the judgment 
that a remand in the case was required, but five justices (Kennedy plus 
the dissenters) were in overwhelming agreement on the legal standard to 
be applied on remand and in future similar disputes over whether a 
``water'' is jurisdictional and hence subject to a permit determination 
under the Clean Water Act. Five justices agreed that at least the 
waters protected by Justice Kennedy's ``significant nexus'' test 
deserved protection.
    Latin American Citizens is important because it does exactly what I 
above and in my submitted testimony stated was required in figuring out 
Supreme Court majorities. Justice Kennedy, in Latin American Citizens, 
in a section commanding a clear numerical Court majority, characterizes 
the earlier Vieth case as commanding a majority in the Court's refusal 
to hold nonjusticiable certain sorts of gerrymandering allegations. 
Justice Kennedy states that ``a plurality of the Court in Vieth would 
have held such challenges to be nonjusticiable political questions, but 
a majority declined to do so.'' 126 S. Ct. at 2607. What is key is the 
following citation. To explain the existence of what the Supreme Court 
calls ``a majority,'' he cites to his earlier opinion in Vieth 
concurring in the judgment, plus three dissenting opinions adding up to 
four additional votes that agreed with this conclusion. Id. Clearly, a 
majority of the Supreme Court agrees that a Court majority does not 
require agreement on rationale and relief. If the issue is what legal 
rationale is to be applied in the future, one must find at least five 
justices in agreement, regardless of whether they agree on the relief 
to be provided.
    Your question asks whether this allows one to ``mix and match.'' I 
would not use that exact characterization, but this case does confirm 
that the obligation of agencies and courts on remand and future similar 
cases is always to look and see if a rationale commanded the assent of 
five or more justices. Latin American Citizens does make clear that 
majorities do not require justices all to agree on the relief provided, 
just the rationale stating the Court's law articulation.

    Question 4. In your testimony, you mention that only four justices 
adopted the view that Federal regulatory power should be cut back under 
the Commerce Clause? Would you explain for us in more detail why the 
majority of the Court rejected a Commerce Clause attack in this case?
    Response. I believe that the numerous commerce linkages implicated 
here, ranging from the real estate developers who sought to develop the 
areas found to be jurisdictional waters, to the significance of such 
waters for other commercial purposes such as fishing, hunting, tourism, 
recreation and municipal uses, to the importance of such waters for 
flood control, filtration, and ecosystem functions, made it a 
relatively easy case. In addition, the Court's recent majority opinion 
in Gonzales v. Raich confirmed the several sorts of commercial linkages 
that can be constitutionally sufficient, plus it further affirmed that 
Commerce Clause analysis requires courts not to look at each challenged 
action in isolation, but (as stated by Justice Kennedy in language 
assented to by four other justices in Rapanos, quoting Raich), ``[W]hen 
a general regulatory statute bears a substantial relation to commerce, 
the de minimis character of individual instances arising under that 
statute is of no consequence.''

    Question 5. Both SWANCC and the Rapanos plurality suggested that 
the Corps' broad interpretation of its Clean Water Act jurisdiction 
``pushes the envelope'' of the Federal commerce power. If Congress 
pursues a legislative clarification of the Act's reach, how far can it 
go without exceeding its power under the Commerce Clause?
    Response. If Congress sought to regulate isolated wetlands lacking 
a hydrological link to other waters, based on use by birds alone, it 
might encounter Court resistance. After all, the Court in SWANCC 
explained its limiting read of the Clean Water Act as necessary to 
avoid Commerce Clause problems. However, the numerous other long-
established rationales for protecting wetlands, tributaries and other 
waters, many of which were reviewed by Justice Kennedy and the 
dissenters in Rapanos, involve a wide array of commerce linkages. If 
anything, scientific studies from recent decades greatly strengthen the 
scientific and regulatory judgment that many waters not usable by large 
ships have huge commercial significance nevertheless. In addition, 
because most activities that threaten wetlands and tributaries are 
undoubtedly commercial--frequently real estate, agricultural, 
industrial or transportation activities--most threatening activities 
are commercial in nature and hence undoubtedly reachable under the 
Commerce Clause. If carrying of a gun restricted by Federal law was the 
relevant activity in Lopez, or gender motivated violence was the 
relevant activity in Morrison, then surely the activities threatening 
to cause harms are likewise relevant in looking at Clean Water Act 
regulation.

    Question 6. What other types of Clean Water Act cases, and 
questions pertaining to Federal jurisdiction, do you believe may rise 
to the Supreme Court in the near future?
    Response. I expect that all persons and groups concerned with 
protecting or developing in or near possible ``waters of the United 
States'' will be looking closely at all regulatory challenges. 
Especially with a complicated case such as Rapanos, litigants and 
regulators will try to clarify and likely push the law in new 
directions. Uncertainty spawns litigation. I am uncertain which sorts 
of cases might end up in the Supreme Court; I expect the Court will 
allow lower courts and litigants to work with and perhaps clarify the 
implications of Rapanos before they would grant a petition for a writ 
of certiorari again in a Clean Water Act case.

    Question 7. You mention in your testimony that a legislative fix to 
clarify the categories of ``waters'' covered by the Clean Water Act is 
necessary and the most prudent course of action. Are there any 
categories of waters currently covered by Federal regulations that 
should not be covered in a future legislative fix?
    Respose. My answer to question five largely provides my answer. 
Short of drafting legislating that seeks affirmatively to challenge the 
Supreme Court by reasserting jurisdiction in the limited circumstances 
found excessive in SWANCC, I believe that abundant science and economic 
analysis would support efforts to protect one of America's most 
precious resources, its waters.

    Question 8. Since the Rapanos ruling, a number of different 
stakeholders have suggested that Congress should legislate in order to 
clarify what is the extent of regulatory jurisdiction to protect 
wetlands. One current proposal is the Clean Water Authority Restoration 
Act, S. 912, which would provide a broad statutory definition of 
``waters of the United States.'' Some say that the statutory definition 
in that bill would conform the Clean Water Act to the administrative 
definitions used by the Corps and EPA priority to the SWANCC decision, 
but others say that the bill is even broader than the Corps and EPA 
rules. What is your interpretation of the definition in that 
legislative proposal?
    Response. I have not seen any of the versions of S. 912 for several 
months, so I may be commenting on a draft that has been supplanted by 
another. Based on the April 27, 2006 draft I saw this summer, it struck 
me as a fair attempt to make statutory the approaches and rationales 
used during the past several decades through Clean Water Act 
regulations, and underlying judgments leading to and explaining those 
regulations. Its key definition of ``waters of the United States'' is 
virtually identical to the interpretation long considered settled, as 
reflected in case decisions, textbooks, and treatises up until 2001, 
when SWANCC and now Rapanos created regulatory uncertainty.
                                 ______
                                 
      Responses by William W. Buzbee to Additional Questions from 
                             Senator Inhofe

    Question 1. Mr. Buzbee, you testified that the law of the land is 
now the opinions of Justice Kennedy and Justice Stevens. You argued to 
us that those five Justices ``assented regarding the rationale for the 
decision.'' The only significance to any agreement between Scalia and 
Kennedy is the vote on the remand.
    Would you agree that the plurality and Justice Kennedy voted to 
determine the result of the decision that the case was remanded back 
the 6th Circuit? Would you also agree that the plurality and Justice 
Kennedy concurred in the judgment-that the case was remanded to the 6th 
Circuit?
    Response. For my far more complete response to this question and 
question two, please see my answer to question three of Senator Chafee. 
In brief, I believe that the key opinion articulating the rationale of 
five justices of the Supreme Court is that of Justice Kennedy. Justice 
Kennedy agreed with the specific relief ordered by the Court a remand 
to the court below but otherwise he and the Justice Scalia opinion 
disagreed on virtually every point. The result, in the sense of the 
judgment regarding relief, had Justice Kennedy's agreement, but the 
result in the case articulating the legal rationale for application by 
the court below, executive agencies in the future, and lower courts, is 
that of Justice Kennedy. Five Justices agreed with his rationale, 
although four would have preferred a more expansive definition 
consistent with the last three decades of regulatory approaches.

    Question 2. Would you please describe the basis for your legal 
opinion, in particular how it conforms to the long established Supreme 
Court Marks decision and subsequent precedent whereby the Court stated 
``[w]hen a fragmented Court decides a case and no single rationale 
explaining the result enjoys the assent of five Justices, the holding 
of the Court may be viewed as that position taken by those Members who 
concurred in the judgments on the narrowest grounds.'' (Marks v. U.S. 
430 U.S. 188 (1977)) .
    Response. My response to this question is provided at length in 
response to question three of Senator Chafee.
                                 ______
                                 
      Responses by William W. Buzbee to Additional Questions from 
                            Senator Jeffords

    Question 1. Can you explain whether you believe this decision will 
affect parts of the Clean Water Act other than the wetlands program and 
if so, why?
    Response. Yes, any interpretation of what count as ``waters of the 
United States'' will influence not just efforts to protect wetlands and 
their tributaries from filling activity, but also what sorts of waters 
are protected from point source discharges from industrial and 
municipal sources regulated by Section 402 of the Clean Water Act. For 
this reason, interpretations of Rapanos are of huge importance to all 
efforts to protect America's waters.

    Question 2. Are you familiar with the oil spill case from Texas 
that is, I believe, the first to interpret the Rapanos Carabell 
decision and do you have any thoughts on the implications of this case 
for agency efforts to enforce the Clean Water Act?
    Response. Yes, as I explained at greater length in response to 
question two of Senator Chafee, this case appears unsound and contrary 
to Supreme Court majority law and the usual obligation of lower courts 
to apply that law. If that decision's approach becomes more widely 
accepted, it would turn Rapanos into a huge loss for the environment. 
If intermittent streams and rivers are no longer Federally protected 
from accidental or even intentional pollution, that would constitute a 
massive undercutting of long-established interpretations of the Clean 
Water Act. Fortunately, I believe that this opinion is in error and 
expect it will be reversed on appeal and rejected by other courts.

    Question 3. In his separate concurring opinion, Chief Justice 
Roberts says that, because there is no opinion commanding a majority, 
``Lower courts and regulated entities will now have to feel their way 
on a case-by-case basis.'' This seems to indicate that there is no 
binding precedent set by this decision. What do you interpret this 
``case-by-case'' statement to mean?
    Response. I am uncertain about what Chief Justice Roberts meant. It 
is important to note that the Chief Justice did not command a Court 
majority in his brief concurrence. In fact, no other justice joined his 
opinion. If he was just saying that lower courts and agencies will now 
need to work with a confusing decision, he is probably making an 
accurate prediction; the ``significant nexus'' test does require case-
by-case analysis. If he was expressing the view that because there is 
no single majority opinion, that there therefore is no majority Court 
rationale for lower courts to apply, then I find it puzzling. As 
discussed in response to question three of Senator Chafee, Marks and 
Latin American Citizens, and the fragmented decisions each discuss, 
together make clear that a majority assenting to a rationale can and 
often is constructed by examining several opinions together, looking 
for their commonalities. Much as several opinions in Vieth added up to 
what a Supreme Court majority in Latin American Citizens called a 
majority view, Justice Kennedy's opinion plus his overwhelming 
commonalities with the dissenters in Rapanos add up to a majority view.

    Question 4. In his testimony, Mr. Kisling argues that the test for 
jurisdiction should be the commonalities between the Scalia and the 
Kennedy opinions. Do you believe that the Agencies are required to 
rewrite their regulatory definitions of ``waters of the US'' in 
response to this Supreme Court decision or can the agencies continue to 
implement the law under their existing regulations?
    Response. First, I do not think Mr. Kisling's view is supportable. 
When two opinions explicitly disagree with each other, rejecting 
virtually all of each other's articulations of the law, I do not 
believe any precedents support joining them together to claim a 
majority view.
    Second, while several opinions expressed the hope that regulatory 
definitions of ``waters of the United States'' would be amended, this 
was a not a challenge to those regulations, plus no opinion claimed to 
be striking down existing regulations. Many aspects of those 
regulations were not at issue in Rapanos, plus Rapanos and its 
companion case, Carabell, were ``as applied'' challenges. Absent 
legislative or regulatory correction, agencies will need to construe 
and apply their regulations consistent with Rapanos, but there is no 
Court mandate to amend the regulations.

    Question 5. You testified that it would be helpful, in your 
opinion, for Congress to clarify the law. Can you elaborate on your 
views about the Clean Water Authority Restoration Act and do you 
believe that it would reaffirm and clarify the law?
    Response. Yes, as stated above in response to questions seven and 
eight of Senator Chafee, I do believe that the version of S. 912 I've 
read would reaffirm and clarify the law by restoring the law to where 
it stood before the law was somewhat unsettled by SWANCC and now 
Rapanos.

    Question 6. In the Department of Justice testimony, Mr. Cruden 
explained that the Department believes that waters will fall under the 
Clean Water Act jurisdiction if those waters meet either the 
jurisdictional tests set forth by Justice Scalia or Justice Kennedy's 
opinions. Can you comment on this interpretation?
    In a limited sense, I agree. If you picture the three major 
opinions that of the Justice Scalia plurality, that of Justice Kennedy 
concurring in the judgment, and that of Justice Stevens and his fellow 
dissenters as each setting forth a percentage of waters that would be 
protected, Justice Scalia would protect a quite small percentage of 
waters, typically only those permanently standing or continuously 
flowing. Justice Kennedy would protect far more under his ``significant 
nexus'' test. The dissenters largely agree with Justice Kennedy in 
explaining what sorts of waters are protected by the Clean Water Act, 
but they probably would go even further, mainly due to their greater 
willingness to defer to regulators' assessments about what waters 
deserve protections. This all means that probably nine justices would 
protect at least the waters protected by the Justice Scalia opinion, 
five would protect those falling under Justice Kennedy's test, and four 
would be protected under the dissenters' views. For this reason, Mr. 
Cruden is correct. Frankly, however, I find it hard to imagine waters 
that would be protected by Justice Scalia and not also be protected by 
Justice Kennedy. In addition, I should add that I am unaware of any 
sound scientific or empirical basis for Justice Scalia's view of how 
and why waters should be protected. The only risk in Mr. Cruden's 
statement is that one must be clear that the extensive limitations on 
protections articulated by the Justice Scalia plurality do not command 
a Court majority.

    Question 7. In the wake of the SWANCC decision, how many States 
stepped in and adopted laws to make sure that the so-called 
``isolated'' waters at issue in that case were protected by State law? 
How many did not?
    Response. I unfortunately have not seen or conducted such a survey. 
My impression from conversations with regulators and others around the 
country is that few States have stepped into the breach and created new 
protections once Federal law was limited.
                                 ______
                                 
      Responses by William W. Buzbee to Additional Questions from 
                           Senator Murkowski

    Question 1. You suggested in your written testimony that either the 
executive or legislative branch could use Rapanos ``as an excuse to cut 
back on protections of wetlands and tributaries'' which would allow 
future storms to cause even more devastating floods. But any areas with 
a ``significant nexus'' with navigable waters are protected under 
Rapanos. Are you suggesting the wetlands that protect coastal 
Louisiana, do not have a ``significant nexus'' with navigable waters?
    Response. No, I did not mean to imply such a meaning. I only meant 
that interpretive uncertainties potentially generated by Rapanos could 
lead policymakers or interest groups eager to cut back on the Clean 
Water Act's protections to use Rapanos as a catalyst to weaken existing 
law. Also, agencies wary of litigation might err on the side of 
avoiding conflict, and decline jurisdiction where they should find it. 
A Court majority in Rapanos agrees that ``waters'' can be protected for 
an array of reasons, including their importance for flood control, 
pollutant trapping, and runoff storage. Those rationales and many 
others under Army Corps regulations should leave coastal Louisiana 
wetlands subject to Federal protection under the Clean Water Act.
    My concerns were prompted in part by a July 5 interim communication 
by the Army Corps to regulators in the field. That ``Interim Guidance'' 
instructed that until the implications of Rapanos were assessed, 
regulators should not make jurisdictional determinations or refer 
matters to the Department of Justice for enforcement actions unless the 
waters at issue fall under Section 10 of the Rivers and Harbors Act. 
Section 10 protects far fewer waters than Section 404 of the Clean 
Water Act and its regulations. Given the numerous Army Corps 
regulations regarding ``waters'' not even challenged in Rapanos and the 
2001 SWANCC ruling, plus the overwhelming protections retained by 
Justice Kennedy's opinion, I find this interim communication puzzling 
and contrary to the obligation of all executive agencies to abide by 
Supreme Court decisions, as well as their own regulations.

    Question 2. You've stated that ``vast swaths of hugely important 
wetlands and tributaries around the country are at risk,'' and that the 
Corps of Engineers may decline to protect them. Do you personally agree 
or disagree with the Supreme Court's view that some wetlands do not 
come under the Clean Water Act? How would you distinguish such exempted 
areas?
    Response. I think that even the Army Corps regulations and 
interpretive documents given a constraining read in SWANCC do not claim 
to make all wetlands Federally protected. I think that these long-
standing regulations interpreting ``waters of the United States,'' as 
well as underlying regulatory materials explaining and further fleshing 
out those regulations, have been long- tested and have a sound basis. 
In this assessment, I note that my view is shared by the Bush 
administration, which argued for retaining the regulatory protections 
challenged in Rapanos, as well as over 30 States that also joined 
briefs in support of the administration's defense of these cases and 
these long-standing regulations. In addition, scientific studies 
concerning the importance of wetlands and tributaries seem to 
strengthen the regulatory basis for protecting such waters. It remains 
a sound regulatory design for Federal jurisdiction to be broad, but 
allow the Army Corps to grant permits where an activity does not pose a 
threat to such waters. In addition, nationwide permits, mitigation, and 
compensatory banking provide further flexibility in this regulatory 
scheme.

                               __________
     Statement of Chuck Clayton, the Izaak Walton League of America

    Mr. Chairman, members of the committee, my name is Chuck Clayton. I 
am the immediate Past National President of the Izaak Walton League of 
America, dedicated since 1922 to science-based conservation policy. The 
League has over 40,000 members and supporters, consisting of avid 
sportsmen and women, and others who simply enjoy the outdoors. We have 
20 State divisions and more than 300 local chapters across the nation. 
The League advocates common sense conservation and I am proud to 
continue that tradition with my remarks today. My comments also 
represent the views of millions of Americans who belong to the many 
organizations who have joined the Izaak Walton League in submitting 
this testimony, including American Sport fishing Association, BASS/ESPN 
Outdoors, Berkeley Conservation Institute, Trout Unlimited.
    As a landowning resident of South Dakota, and an avid hunter and 
angler, I appreciate this opportunity to share my views with the 
committee, and to illustrate just how the recent U.S. Supreme Court 
decision in the joint cases Rapanos and Carabell is affecting wetland 
and stream protection where it matters most, on the ground. Frankly, 
the benefits of extending comprehensive protections to waters such as 
non-navigable headwater streams and seasonally dry potholes are 
numerous and undeniable. Among their many functions, these various 
forms of waters improve water quality by retaining and recycling 
nutrients such as nitrogen and phosphorus, which when left unchecked, 
lead to oxygen exhausting algae blooms and dead zones. Wetlands also 
trap tremendous amounts of sediment, leading directly to clearer, 
healthier downstream waters, that otherwise would be choked by sunlight 
depleting sedimentation; and when left intact, wetlands lessen the 
devastation caused by floods and storms, like that which we so 
painfully witnessed during the Gulf Coast storms of 2005.
    In addition to the important water quality functions that all forms 
of wetlands and headwater streams play, they also provide critical 
habitat for many species of fish and wildlife, including numerous 
species that are listed as threatened and endangered. Salmon and trout 
use cold headwaters for spawning, these streams may often be 
intermittent or ephemeral, and as such their protection under the Clean 
Water Act was left open for debate by the Supreme Court's decision in 
Rapanos. These ephemeral and intermittent streams make up nearly 60 
percent of the streams in the United States, losing them would be yet 
another barrier to restoring native runs of trout, salmon, and shad.
    Other important game fish, such as largemouth bass and northern 
pike, use varied types of wetlands and headwaters for many of the same 
purposes. Each specific type of wetland provides a certain set of 
conditions, including the proper food and cover, necessary for the 
survival of that specific species of fish. By temporarily storing 
water, even isolated wetlands ensure that downstream flows remain both 
cool and relatively constant, critical elements for healthy fish 
populations, but also important elements in the fight to stave off the 
negative effects of drought.
    The thousands of small wetlands that make up the prairie pothole 
region of the Dakotas, often referred to as North America's ``duck 
factory,'' annually support four million pairs of waterfowl that depend 
on high quality wetlands for nesting and the rearing of their young. 
The Supreme Court's decision in Rapanos leaves the status of virtually 
all prairie potholes in limbo. Losing these wetlands to development 
would put the future of these ducks in grave peril. Many other species 
are also wetland dependent. For example, deer, pheasants, quail, and 
many songbirds, as well as reptiles and amphibians such as turtles and 
frogs depend on healthy wetlands as a key component of their habitat 
during the year.
    The benefits of wetlands are important for people, too. Thirty-four 
million anglers and 13 million hunters rely on the clean water and 
healthy fish and wildlife populations that isolated wetlands support. 
These sportsmen and women contribute directly to the sustained economic 
growth and viability of communities across the United States, to the 
tune of about $70 billion annually. The economic benefit stems not just 
from hunters and anglers, but also from bird watching, one of the most 
popular and fastest growing pastimes in the Nation, which pumps 
millions more into local economies. Outside of recreation, wetlands are 
also vital to three-fourths of America's commercial fish production, 
which is worth about $111 billion. If wetlands are left unprotected 
from agricultural, residential, and commercial development, the 
economic loss would be staggering.
    Despite the benefits, the protection of wetlands and many other 
waters has been bogged down by bureaucratic misinterpretations, 
allowing important Clean Water Act determinations to be made on an ad 
hoc basis. While the Administration did a good job of defending 
protection of wetlands and streams in the Rapanos case, they have not 
sufficiently led the way for consistent, vigorous use of the Clean 
Water Act to protect these vital resources. For instance, over a 6-
month span in 2005, in the Omaha region of the U.S. Army Corps of 
Engineers, which includes parts of six States, including my home State 
of South Dakota, the corps deemed that at least 2,676 acres of 
wetlands, lakes, streams, and other waters fell outside the scope of 
the Clean Water Act. This approach to protecting our most important 
water resources is just not working.
    The recent Supreme Court decision in Rapanos, further muddied the 
waters, providing little clarification to agency officials for how they 
should proceed to protect these important waters and providing no 
meaningful direction on how the Clean Water Act is to be applied. The 
decision fails to provide what Government land managers and 
environmental regulators so desperately need: a clear formula for 
protecting our valuable water resources. Protection should be the rule, 
not the exception. The conservation of our most important waters now 
depends on the leadership of Congress to make the Clean Water Act more 
explicitly inclusive of all wetlands, streams, and lakes. The 
Environment and Public Works Committee is currently considering 
legislation that would plainly codify the protection of these key 
resources. The Clean Water Authority Restoration Act (S. 912) would 
make real progress towards definitively granting important protections 
to water resources. Congress must pass this legislation. We in the 
conservation community believe that the Clean Water Act was written to 
be applied in the broadest fashion, to ensure that all waters of the 
United States are protected by the power of law. All wetlands and 
streams, no matter how isolated or intermittent, warrant strict 
protections under the Clean Water Act, because even the most isolated 
wetlands are part of an intricate hydrological web, upon which entire 
ecosystems, including humans, rely.
    Mr. Chairman, this concludes my remarks. Again, on behalf of the 
aforementioned conservation organizations, I would like to thank you 
for this opportunity to share the views of the Izaak Walton League and 
our partners. I would be happy to respond to any questions that the 
members of the committee may have.
                                 ______
                                 
        Responses by Chuck Clayton to Additional Questions from 
                             Senator Chafee

    Question 1. Your description of the prairie pothole region of the 
Dakotas as North America's ``duck factory'' provides quite a vivid 
image as to the number of waterfowl that utilize these areas for 
nesting and the rearing of young. Given the Supreme Court's lack of 
clarity in Rapanos regarding Federal jurisdiction over isolated 
wetlands, why is it important that the Federal Government retain 
Federal jurisdiction to protect prairie potholes? Is it possible for 
State laws in the Dakotas to fill the gap if Federal protections are 
removed?
    Response. President Theodore Roosevelt adamantly maintained that 
the States need Federal help to fulfill State goals, and this 
observation is truer than ever in today's increasingly interconnected 
world. In the case of natural resources that are relied upon by several 
States, Federal regulation is necessary to ensure that the interests of 
all States are upheld. Though ``isolated'' wetlands may not physically 
cross State lines, they provide services that extend far beyond the 
area in which they are located. The draining of a prairie pothole in 
one watershed may have repercussions that extend to neighboring 
watersheds, and even across State lines.
     The Association of State Wetland Managers (ASWM) notes that 
``Thirty-six States have limited or no wetland regulations applying to 
isolated wetlands. These States either lack State statutory enabling 
authority or, if they have authority pursuant to water quality 
statutes, have not established wetland permitting systems due to lack 
of funds, staff, perceived need and/or political will.'' Since the 
SWANCC decision, most of the wetlands reviewed by the corps have been 
found to be exempt from the Clean Water Act. For example, the corps 
found that the affected wetlands in North Dakota were exempt in 69 of 
the 77 projects it has reviewed since March 30, 2004. Wetlands were 
determined to be exempt in 54 out of 125 cases reviewed in South Dakota 
since April 27, 2004. (Environmental Integrity Project, 2006)

    Question 2. The Supreme Court's decision in Rapanos appears to 
raise into question Federal jurisdiction over isolated wetlands as well 
as some categories of ephemeral and intermittent streams. How prevalent 
are these types of wetlands and streams in South Dakota? What would 
happen if Federal protections for these areas were removed?
    Response. According to the SD Dept. of Game Fish and Parks, 
``shallow, temporary and seasonal wetlands comprise 92 percent of all 
wetlands in the [prairie pothole region] of eastern South Dakota.''  
Further, in a study of Clark County, 94-95 percent of wetland basins, 
or about 98 percent of the wetland area in the study region, could be 
considered ``isolated'' and therefore at risk of losing all Federal 
Clean Water Act protections. If Federal protections were removed, there 
are no State regulations in place to safeguard this acreage from the 
threats of development and agriculture.
    ``Potential real losses of wetlands in South Dakota resulting from 
loss of CWA are difficult to predict, but some experts (Bismark USFWS 
HAPET office staff) estimate that substantial losses of isolated 
temporary wetlands could lead to a 50% decrease in duck production in 
the Prairie Pothole Region.'' (SD Dept of Game, Fish and Parks, 2003)
    The U.S. Fish and Wildlife Service estimates that each acre of 
small wetland reduces flood damage to roads by $6.11 per year. If one 
applies this value to all eastern South Dakota wetland basins less than 
one acre in size (73 percent), the total flood prevention value related 
to roads totals over $4 million. Each acre of small wetland also 
provides $29.23 worth of flood damage protection to agricultural land 
per year. (SD Dept of Game, Fish and Parks)

    Question 3. There is a great deal of difference between wetlands, 
streams and tributaries in the East versus the West. Do you find the 
Supreme Court's decision in Rapanos unfairly limits Federal protections 
over wetland and stream areas in the West versus the East? How should 
this be remedied?
    Response. Wetlands, streams and tributaries differ not just over 
large continental regions, but also locally, so that diverse types of 
streams and wetlands can occur within the same watershed. Discerning 
the type of wetlands present is a task best performed by qualified 
hydrologists, because even the smallest wetlands can provide immense 
ecological benefit, benefits which, if lost, may prove to be 
irreplaceable by any man-made alternative. The Clean Water Act was 
written to be necessarily broad, so that it could be molded to cast the 
widest possible net of protection, a net of protection that includes 
all waters of the United States,' a designation not beholden to 
regional bias. While many of the wetlands in the East may be easily 
discernible, like the Florida Everglades and the marshes of the 
Chesapeake Bay, the often less clearly delineated wetlands of the West 
deserve equal protections, especially given that region's perennial 
water issues. All wetlands, no matter how ephemeral, are interwoven as 
part of an intricate hydrological web, clearly constituting a 
significant nexus to those qualified to make such distinctions. ``All 
waters of the U.S.,' defined as broadly as possible, should be the 
benchmark of protection under the Clean Water Act.
    As a property owner and sportsman in South Dakota, what is your 
experience with the Federal wetlands permitting process? In your 
opinion, has it been a fair and streamlined process, or does it place 
onerous burdens on property owners in your region?
    The Federal wetlands permitting process in South Dakota, as pointed 
out in my testimony, has not been very effective in protecting our 
wetlands. It is cumbersome and as the GAO study pointed out, not been 
much of a deterrent to wetland drainage (GAO Report GAO-05-870). At 
least these projects that are subjected to the permitting process have 
been put through an environmental and public interest review to 
determine what damages such activities might create. Allowing such 
activities to proceed without any review will provide economic benefit 
to a few at the potentially great expense to others. I personally feel 
that if we would appoint one agency to be the lead on wetland 
determinations, while adhering to the Memorandum of Agreement (MOA), 
signed by the Corps, EPA and USF&W on wetland issues, all stake holders 
would be treated more fairly.
                                 ______
                                 
        Responses by Chuck Clayton to Additional Questions from 
                             Senator Inhofe

    Question 1. Justice Kennedy's test would have the corps make 
decisions on a case-by-case basis when it seeks to regulate wetlands 
based on adjacency to nonnavigable tributaries. Some of your members 
must be private landowners. Do you not agree that they would want more 
certainty than provided in the Kennedy test?
    Response. Many of our members are landowners. We feel the Kennedy 
test is the result of Rapanos. We also know that ``all waters of the 
U.S.'', as described in the CWA, are important to all stake holders in 
this issue. The CWA, as passed by congress, has been weakened and 
muddied by Supreme Court decisions, administrative rule making and 
other governmental organizations trying to apply their spin on the 
meaning of the English language. The CWA was passed by the congress to 
avoid the ``pay me know or pay me later'' scenario, of the people in 
the upper reaches of watersheds polluting our waters, and later users 
having to pay billions of dollars to clean the water up for uses like 
bathing and drinking. If we want more certainty, congress needs to pass 
the Clean Water Authority Restoration Act (S. 912). The CWA was not 
passed by the EPA, the Corps, the administration or the USF&W. It is a 
law passed by congress, and the congress needs to clarify it.

    Question 2. You mentioned that you do not believe States ``would 
take care of wetland delineations and wetland problems.'' As an example 
you point to a navigable river that runs from ``almost the North Dakota 
border down to the southern border of South Dakota, dumps into the 
Missouri River and continues down to the Gulf. There is no way one 
single State should have that kind of jurisdiction over wetlands.'' 
Most discharges into the river would most likely be governed by Section 
402 of the Clean Water Act. Both South Dakota and North Dakota have 
been delegated authority by EPA to implement and enforce Section 402, 
thus overseeing discharges into the river. Do you disagree with the 
delegation of this authority to the States? Resource issues aside 
because I know that is a problem that must be addressed, if the States 
can regulate all other pollutants into a river that flows between 
States, why wouldn't we trust them to also regulate wetlands?
    Response. States that have been delegated Section 402 Point Source 
programs were required to first demonstrate that their State programs 
are at least as protective as the Federal Clean Water Act. Thus, 
delegation of this important program to States was accomplished while 
still retaining a Federal ``floor'' for protections that applied in all 
States and territories. States can establish stricter standards, but 
none can establish weaker standards. Only two States have been 
delegated Section 404 authority, New Jersey and Michigan. To be granted 
this delegation, both States had to prove that their dredge and fill 
permitting programs were at least as protective as Federal law.
    Because most State laws evolved to work with, rather than in place 
of, Federal laws, only a third of States have independent dredge and 
fill protections and most are far less protective than Section 404. 
Eliminating Clean Water Act protections for even some wetlands, 
streams, and other waters, eliminates any Federal ``floor'' in 
protections and leaves waters subject to a patchwork of State, regional 
and local protections. This is important because degradation caused by 
dredge and fill activities can have profound impacts downstream, just 
as direct discharges of pollutants can. Dredge and fill activities 
frequently release pollutants formerly held in bottom sediments, 
allowing these pollutants to migrate far downstream and be taken up by 
aquatic life. Additionally, fine sediment particles can migrate far 
downstream, smothering fish spawning habitat and increase water 
filtration costs.
    Changes in section 404 jurisdiction would diminish use of one tool 
used by many States to control activities affecting wetlands. Most 
States have utilized CWA section 401 water quality certification 
programs in addition to or in lieu of specific regulatory statutes. 
But, where Federal jurisdiction does not exist and no section 404 or 
other Federal permit is required, section 401 certification also is not 
required and thus is not available as a tool for the State to evaluate 
the proposed activity. State programs supplement but do not substitute 
for Federal jurisdiction. Additionally, State regulations do not 
generally apply to Federal lands. Some of the States with the largest 
isolated wetland acreages provide little or no State protection, 
including Alaska, Louisiana, Texas, North Dakota, South Dakota, South 
Carolina, North Carolina, Georgia, Nebraska, Kansas, and Mississippi. 
Though States are currently afforded the opportunity to assume section 
404 program authority, only two States (Michigan and New Jersey) have 
taken advantage of this--partly due to the resource burden that would 
be required. (CRS Report-Feb 2001)

    Question 3. Mr. Clayton, in your testimony you mention that the 
Corps determined 2,676 acres of wetlands as non jurisdictional in 6 
States over a 6 month period. On what basis did the corps rule they 
were not wetlands? How many wetland acres did the Corps protect during 
that same time frame?
    You present this number as means to show how many areas you believe 
to be wetlands were developed. However, from 2002 through 2004 through 
USDA wetland protection programs 1,653,000 acres of wetland areas have 
been protected. How would you define the jurisdictional boundaries or 
is it your view that every possible area in the country that may 
receive a very limited amount of rainfall should be a regulated by the 
Federal Government?
    Response. According to the corps, it evaluates more than 85,000 
permit requests annually. Of those, more than 90 percent are authorized 
under a general permit. Less than 0.3 percent of the remaining permit 
applications are ultimately denied.
    From January 2004 until May 2006, the Corps made 2,794 non-
jurisdictional determinations in the 15 most affected States. These 
determinations opened between 16,000 and 23,500 wetland acres to 
development. Approximately 75 percent of these non-jurisdiction 
determinations made by the Corps apply to wetland areas which are, or 
could be, habitat for migratory bird species and 12.5 percent apply to 
endangered species habitat. (Environmental Integrity Project, 2006)
    The corps has received several requests from environmental groups 
for information on all non-jurisdictional determinations made by its 38 
districts. GAO found that only 5 percent or less of the files in four 
of the five districts contained a detailed rationale, while 31 percent 
of the files in the fifth district contained such a rationale. The 
percentage of files that contained no rationale whatsoever as to why 
the Corps did not assert jurisdiction ranged from a low of 12 percent 
to a high of 49 percent in the five districts. The remaining files 
contained partial rationales. (GAO Report GAO-05-870)
    Following the Supreme Court's January 2001 ruling, the Corps is 
generally not asserting jurisdiction over isolated, intrastate, non-
navigable waters using its remaining authority. Since January 2003, EPA 
and the Corps have required field staff to obtain headquarters approval 
to assert jurisdiction over waters based solely on links to interstate 
commerce. Only eight cases have been submitted, and none of these cases 
have resulted in a decision to assert jurisdiction. According to 
project managers, they are reluctant to assert jurisdiction over these 
kinds of waters because of the lack of guidance from headquarters and 
perceptions that they should not be doing so. (GAO Report GAO-05-870)
    According to the latest USFWS Status and Trends of Wetlands Report, 
there has been an overall gain of 191,750 wetland acres from 1998 to 
2004. However, as the report itself acknowledges, most of this gain was 
in the freshwater pond category, which includes ornamental ponds, golf 
course hazards, and aquaculture production facilities. ``Without the 
increased pond acreage, wetland gains would have failed to surpass 
losses during the timeframe of this study. The creation of artificial 
freshwater ponds has played a major role in achieving the national 
wetland quantity objective.'' (Dahl, 2006) Yet deep-water systems are 
unable to provide the same functions and values offered by vegetated 
wetlands, which we are continuing to lose at a rate of 82,500 acres 
each year.
                                 ______
                                 
        Responses by Chuck Clayton to Additional Questions from 
                            Senator Jeffords

    Question 1. In your testimony you talked about the impact of 
hunting and angling on local economies. If the excise taxes 
traditionally spent on conservation were no longer available, I expect 
those dollars would then have to come from some other source. What 
would be the impact on the Federal budget, and what other sources of 
funds would you expect local communities to turn to as a replacement?
    Response. According to the U.S. Fish and Wildlife Service, the 
excise tax on hunting gear (commonly referred to as the Pittman-
Robertson tax) generates an average of $200 million each year, a total 
of $4.2 billion since the tax was enacted in 1937. These dollars are 
spent to conserve the fish and wildlife habitat that hunters and 
anglers rely on to pursue their sport, but other outdoor enthusiasts, 
who pay no such tax, also enjoy the conservation benefit of sportsmen's 
dollars. If wetlands continue to be drained, filled, and polluted, 
hunters and anglers across the country will lose interest in pursuing 
vanishing fish and game that no longer have the habitat necessary to 
maintain healthy populations. Government at all levels would be unable 
to bridge this gap in funding for conservation, and the protection of 
our fragile natural resources would be in jeopardy. This exodus of 
hunters and anglers from the landscape will leave a wide gulf in the 
local economies that rely on hunters and the $30 billion they spend on 
their sport each year, spending that supports a million jobs 
nationwide. The economic benefit of hunting and angling is real; the 
economic loss of hunters and anglers would be devastating.

    Question 2. Based on the track record of the agencies implementing 
previous Supreme Court decisions, do you think the implementation of 
the Rapanos--Carabell decision should be left to the Administration to 
do a rulemaking?
    Response. The Clean Water Act is one of Congress' most profound 
environmental achievements, and improving it should not be left to any 
Presidential administration. The current Administration has illustrated 
that it is comfortable protecting golf course ponds and sewage lagoons 
as functioning wetlands, while at the same time allowing high-value 
ephemeral and intermittent wetlands to fall to the bulldozer and the 
plow; a short-sighted philosophy that encourages ``wetland'' quantity 
at the cost of wetland quality. The Court's decision implies the need 
for Congressional clarification of the Clean Water Act, in order to 
more explicitly define precisely what constitutes a ``a water of the 
United States,'' and thereby what wetlands deserve protection. Only 
Congress can hold robust hearings on these important issues in order to 
gather input from stakeholders and concerned citizens alike, and in the 
end, only Congress can declare its original intent. This is exactly 
what would be accomplished by passage of the bill, you and Senator 
Feingold introduced, the Clean Water Authority Restoration Act.

    Question 3. What do you think of the proposition that it can be 
left largely to the States to determine which streams and wetlands 
should be protected from pollution, and based on your experience, would 
this be a workable approach?
    Response. No. In the case of natural resources that are relied upon 
by several States, Federal regulation is necessary to ensure that the 
interests of all States are upheld. Though ``isolated'' wetlands may 
not physically cross State lines, they provide services that extend far 
beyond the area in which they are located. The draining of a prairie 
pothole in one watershed may have repercussions that extend to 
neighboring watersheds, and even across State lines.
    State and local wetlands regulatory programs supplement but do not 
substitute for Federal jurisdiction. Additionally, State regulations do 
not generally apply to Federal lands. Some of the States with the 
largest isolated wetland acreages provide little or no State 
protection, including Alaska, Louisiana, Texas, North Dakota, South 
Dakota, South Carolina, North Carolina, Georgia, Nebraska, Kansas, and 
Mississippi. The Association of State Wetland Managers (ASWM) notes 
that ``Thirty-six States have limited or no wetland regulations 
applying to isolated wetlands. These States either lack State statutory 
enabling authority or, if they have authority pursuant to water quality 
statutes, have not established wetland permitting systems due to lack 
of funds, staff, perceived need and/or political will.''

    Question 4. Some of the other witnesses today noted that the 
Administration did not change the regulations defining the ``waters of 
the US'' following the Supreme Court's 2001 Clean Water Act decision. 
Did your organization or the other hunting and fishing advocacy groups 
you are representing today take a position on that rulemaking proposal?
    Response. Yes. Following the Supreme Court's decision in 2001, the 
Izaak Walton League and many other hunting and fishing advocacy groups 
urged the U.S. Environmental Protection Agency to provide additional 
guidance on key terms in the decision, such as significant nexus, 
tributary and adjacent, in order to insure that the narrow legal 
interpretations embodied in the SWANCC decision did not get lost as it 
filtered down to the field offices of the Corps and EPA. Following the 
2003 release of the administration's Advance Notice of Proposed 
Rulemaking (ANPRM), however, the League criticized the Corps and the 
EPA for suggesting a retreat from Federal Clean Water Act jurisdiction 
that goes considerably beyond that required by the Supreme Court's 
decision. The League published an in-depth legal analysis of the SWANCC 
ruling, which determined that the decision's limited scope left intact 
the broad regulatory authority of the EPA and the corps to protect most 
of the waters of the U.S.--including many of the so-called ``isolated 
waters.'' Our position remains that Congress clearly intended the Clean 
Water Act to cover all waters of the United States. In order to keep 
the Act's promise of clean waters for all communities across the 
nation, Congress must take up the responsibility for safeguarding 
Federal CWA protections for all waters of the United States.
    In addition, more than 99 percent of the 135,000 comment letters 
and 39 of 42 States that commented on the ANPRM, opposed the proposed 
weakening of Federal Clean Water Act protections.

    Question 5. Do you believe that the Administration is required to 
rewrite their regulatory definitions of ``waters of the US'' in 
response to the Rapanos--Carabell decision, or can the agencies 
continue to implement the law under their existing regulations?
    Response. The Court's decision in Rapanos does not require the 
Administration to rewrite the regulatory definition of the phrase 
``waters of the U.S.'' However, the various agencies tasked with 
protecting wetlands and implementing the Clean Water Act, have not, and 
therefore cannot continue to, successfully implement the law under 
their existing regulations. Business as usual isn't working, and we are 
losing thousands of acres of wetlands each year. It is apparent that 
the Clean Water Act does require clarification, but the Act originated 
in Congress, Congress must be the ones to provide that clarification.

                               __________
  Statement of Keith Kisling, National Association of Wheat Growers, 
                 National Cattlemen's Beef Association

                              INTRODUCTION

    My name is Keith Kisling and I come from Burlington, OK. I am here 
today testifying on behalf of the National Association of Wheat Growers 
(NAWG) and the National Cattlemen's Beef Association (NCBA). I raise 
1,500 head of stocker cattle on wheat pasture and 900-1,000 cattle on a 
backgrounding lot. Additionally, I grow wheat on more than 3,000 acres. 
Currently, I am the Chairman of the Oklahoma Wheat Commission and am 
the past Chairman of the U.S. Wheat Associates, which is the marketing 
arm for wheat growers in our country. My family and I have been in the 
business of farming and ranching for more than 35 years, and I am a 
third generation producer.
    Members of NAWG and NCBA are on the land everyday raising and 
growing food for our nation and the world. We produce the cheapest and 
most plentiful supply of food in the world. Our producers respect and 
love the land in a way occasional visitors to the land may have 
difficulty comprehending. We know that food production must be 
sustainable for it to be economic in the long run.
    Approximately 70 percent of the land in the lower 48 States is 
owned privately. A substantial portion of this land is used for the 
production of food which is arguably the most important use for this 
land. The production of food in our country cannot be taken for 
granted. Farmers and ranchers in other countries are increasingly able 
to produce comparable food at lower cost to the American market. 
Additionally, society also looks to this private land and associated 
waters for many other services, including habitat for wildlife, clean 
water, and open space, most notably. American producers face an ever 
tightening web of regulations which economically marginalizes an 
increasing number of operations. While many, if not all, of the 
environmental and work-safety regulations are well-intended, it must 
also be recognized that limiting and ultimately choking the ability of 
farm and ranch operations to earn a living will come at a considerable 
cost to the Nation.
    The single biggest threat to wildlife values in the world is 
fragmentation of landscapes. Given the enormous pressures to subdivide 
and develop land in this country, farms and ranches are the most 
important buffers to slowing the tide of development. There is also a 
considerable human cost to disregarding the needs of farms and ranches. 
The families who settled our country and made a living from the land 
provided a critical service to our nation and deserve the respect and 
support of society. While times change and so must people, hopefully 
our ability and desire to support our history and cultural heritage 
does not. Respect for this history includes respect for buildings and 
artifacts. But it also includes respect for the people who made the 
buildings and artifacts. We are diminished as a people if we lose our 
connection with the past and the people who continue to bridge the past 
with the future.
    The challenge for society in using private lands is to strike a 
sensible balance between the demands of food production and 
conservation of natural resources. Unfortunately, the United States 
through both Republican and Democratic administrations has completely 
abdicated its responsibility to strike a balance between protecting 
wetlands and the respecting people who make their living on the land. 
Not only has no balance been struck, but in fact, regulation has been 
allowed to proceed unlawfully and directly at odds with teachings from 
the leading Supreme Court cases on the issue. This Congress and this 
Administration cannot allow this situation to continue. Fortunately, 
the Supreme Court provided a roadmap for resolving the situation in its 
recent decision in Rapanos v. United States, 126 S. Ct. 2208 (2006).

                           1. NEED RULEMAKING

    Section 404 of the Clean Water Act (CWA) authorizes the Corps of 
Engineers to issue permits for the discharge of dredge and fill 
materials into navigable waters of the United States. In Solid Waste 
Agency of Northern Cook County v. Army Corps of Engineers, (SWANCC), 
531 U.S. 159 (2001), the Supreme Court ruled the corps could not 
require a permit to fill isolated wetlands because such wetlands are 
not waters of the United States and are not subject to the regulatory 
reach of the Clean Water Act. This limitation on the reach of the CWA 
has never been implemented by the corps in a rulemaking. Instead, the 
corps continues to assert jurisdiction over every conceivable presence 
of water on the land. In Rapanos, 126 S. Ct. 2208 (2006), the Court 
observed that even after SWANCC, the Government continued to regulate 
``roadside ditches''; tributaries consisting of ``an intermittent flow 
of surface water through approximately 2.4 miles of natural streams and 
manmade ditches''; ``irrigation ditches and drains that intermittently 
connect to covered waters''; and, ``washes and arroyos'' in the middle 
of the desert. Rapanos, 126 S. Ct. at 2217-18.
    The need for rulemaking was emphasized by Justices Kennedy, Breyer, 
and Chief Justice Roberts in Rapanos. As Chief Justice Roberts 
observed;
    Rather than refining its view of its authority in light of our 
decision in SWANCC, and providing guidance meriting deference under our 
generous standards, the corps chose to adhere to its essentially 
boundless view of the scope of its power. The upshot today is another 
defeat for the Agency.
    Rapanos, 126 S. Ct. at 2236.
    Nobody benefits from the Government's failure to act in this arena. 
Without a rule, a Federal assertion of jurisdiction over waters will 
always be subject to a legal challenge for failure to comply with the 
Administrative Procedures Act. Not only will the agency be defeated 
again without a rule but so will those members of the public who are 
concerned with protecting as much water resources as possible within 
the actual jurisdiction of the corps.
    Of course, agriculture producers are also big losers from 
Government regulation without a rule. Because agriculture producers 
control so much private land in this country, much of the land has some 
kind of water on it either permanently or intermittently. Without clear 
notice of the extent of the Government's regulatory reach provided by a 
rule, producers will always be uncertain about the extent they can use 
their own land without running afoul of the proscriptions in the CWA.
    Both the overzealous Government regulation and the failure to 
provide adequate notice about the extent of authority to regulate 
result in serious infringement of the rights of producers to use their 
own property. Private property rights are perhaps the most important 
bulwark enshrined in our nation's laws and customs against abusive 
Government conduct. People want to be left alone to use their property 
as they see fit. While we understand the Government can and should 
regulate private conduct in certain carefully prescribed instances, we 
expect in this country that that regulation will be pursuant to law.
    In the case of waters of the United States, the Government has 
clearly been regulating the use of private property beyond the 
authority conferred by the CWA. In its decisions in SWANCC and Rapanos, 
the Supreme Court has worked to check this usurpation of congressional 
authority by the executive branch of Government, albeit to no avail as 
of this time. Those interested in protecting civil liberties, and of 
course the producers themselves, are the big losers. The time for the 
Government to issue a rule in conformance with the law is certainly 
upon us.

                     2. CONTENT OF THE REGULATIONS

    The Supreme Court in Rapanos offered guidance on this question as 
well. As an initial matter, it may be worth dispelling confusion that 
apparently swirls around the wetlands community as to what was the rule 
issued by the Court in the case. If the interested community cannot 
come to agreement on this point, it is hard to imagine an agreement 
forming on what should be the content of the regulations.
    When a fragmented Court decides a case and no single rationale 
explaining the result enjoys the assent of five Justices, ``the holding 
of the Court may be viewed as that position taken by those Members who 
concurred in the judgment on the narrowest grounds.'' Marks v. United 
States, 430 U.S. 188, 193 (1977) (emphasis added). For Rapanos, the 
opinions that ``concurred in the judgment'' were Justice Scalia's four-
justice plurality and Justice Kennedy's concurrence, not Justice 
Stevens and the dissent. Accordingly, the Administration should look to 
the common elements of the Scalia and Kennedy decisions to determine 
the new standard for CWA jurisdiction. There appears to be at least two 
elements Kennedy and the plurality agreed on:

1. Hydrologic Connection
    Hydrologic connection in the sense of an interchange of waters 
between a wetland and a navigable in fact body of water is not enough 
by itself to show a ``significant nexus'' between the wetland and the 
water to support an assertion of jurisdiction by the corps. 126 S. Ct. 
at 2251. Justice Kennedy emphasized the importance of frequency of 
flow, volume of flow, and proximity to traditional navigable waters in 
determining whether a nonnavigable water has a ``significant nexus'' 
with traditional navigable waters. Justice Scalia's plurality opinion 
requires a continuous connection from nonnavigable water to navigable 
water. Thus, remote and insubstantial connections will not suffice 
under either test.

2. Identification of Jurisdictional Tributaries
    Justice Kennedy criticized the corps' existing standard for 
identifying tributaries as overbroad:

    [T]he corps deems a water a tributary if it feeds into a 
traditional navigable water (or tributary thereof) and possesses an 
ordinary high water mark. . . . [A]though this standard presumably 
provides a rough measure of the volume and regularity of flow . . . , 
the breadth of this standard--which seems to leave wide room for 
regulation of drains, ditches, and streams remote from any navigable-
in-fact water carrying only minor water volumes towards it--precludes 
its adoption as the determinative measure of whether adjacent wetlands 
are likely to play an important role in the integrity of the aquatic 
system comprising navigable waters as traditionally understood.

    126 S. Ct. at 2249. Justice Scalia was similarly skeptical of the 
corps' and EPA's regulation of ditches, drains, gutters, and gullies.
    These points of agreement do not so much identify an affirmative 
standard for regulation, as they identify limitations on corps 
authority, as does the SWANCC Court's decision excluding isolated 
wetlands from the reach of regulation, that must be reflected in 
promulgated rules.
    Much has been made of Justice Kennedy's proposed ``significant 
nexus'' test for determining whether a wetland is within the reach of 
Government regulation under the Clean Water Act. Because of the variety 
of circumstances in which water exists on the land, it may very well be 
that jurisdictional determinations for wetlands will have to be done on 
a case-by-case basis to some extent. It is also true, however, that the 
Supreme Court has offered some bright lines in SWANCC and the common 
elements in Rapanos for excluding certain waters from the reach of the 
CWA.
    Thank you for this opportunity to testify today. I will be pleased 
to take any questions you may have.
                                 ______
                                 
       Response by Keith Kisling to an Additional Questions from 
                             Senator Inhofe

    Question. Can you please describe again for the Committee the 
wetlands that are on your property? As I understand buffalo wallows, 
they were formed by the continuous wallowing of buffalos on the ground 
to rid themselves of insects. The soils are packed so tightly that the 
spots have become impervious. When there is below average rainfall, 
they have little to no water in them and when there is above average 
rainfall, the water enters the wallow from rainfall and escapes through 
evaporation. Are the ``wetlands'' on your property buffalo hollows? Do 
they have a hydrological connection to any neighboring waterbodies? Are 
they adjacent to any neighboring waterbodies? Are they entirely 
intermittent, nonnavigable, intrastate waterbodies?
    Response. The wetlands where I farm in the Central Great Plains 
ecoregion may have been used by the buffalo. To my knowledge, they are 
not adjacent to any neighboring waterbodies.  I would say they are 
isolated intrastate wetlands.
                                 ______
                                 
        Responses by Keith Kisling to Additional Questions from 
                            Senator Jeffords

    Question 1. While not everyone who lives in a rural area is a 
farmer, everyone in rural areas must drink water. The regulation of 
what may or may not come in contact with water might impose costs on a 
farmer, but it also saves costs down the road. If a stream, river, or 
lake never becomes polluted, fewer tax dollars must be spent to clean 
the water for household use. If groundwater stays clean, fewer 
impurities will find a way into a rural neighbor's well. How do you and 
your neighbors in Oklahoma reconcile with these benefits?
    Response. Farmers and ranchers want to cut out unnecessary costs to 
keep their operations economically viable and we want clean water like 
all Americans. We face more costly regulations now than any other time 
since I have been farming. Wetland regulations are an example of where 
many farmers and ranchers have found themselves trapped in the corps 
regulatory grip when they simply dug a ditch or moved a little dirt 
around on their property. Fortunately, Farm Bill conservation programs 
are available to help offset many burdensome regulatory costs. One only 
needs to look at the record participation in voluntary, incentive-based 
conservation programs to understand the willingness of farmers to 
conserve natural resources and the need to use these programs to offset 
the enormous and costly burdens of heavy-handed regulations.

    Question 2. In your testimony, you state that, rather than adopt 
the limitation on regulation of isolated waters that you believe the 
SWANCC case called for, you believe that ``. . . the corps continues to 
assert jurisdiction over every conceivable presence of water on the 
land.'' This is not consistent with the data collected by the GAO which 
found in its report of September 2005 that, ``Since the Supreme Court's 
January 2001 ruling, the corps is generally not asserting jurisdiction 
over isolated, intrastate, nonnavigable waters using its remaining 
authority.'' The report goes on to say that, ``Only 8 cases have been 
submitted to headquarters to obtain approval for asserting jurisdiction 
based solely on links to interstate commerce, and none of them have 
resulted in a decision to assert jurisdiction.'' On what data do you 
base the statement in your testimony? Please provide specific examples.
    Response. About six to eight months ago, a farmer initiated a 
project to improve the drainage on 11 of the 130 acres he has under 
center pivot irrigation. Before he conducted any work, he contacted 
USDA's Natural Resources Conservation Service and his State regulatory 
Agency to get approval and was told that they did not consider his land 
to be a wetland. Afterward, the corps wrote him a letter explaining 
that they had reviewed his information and did consider his proposal an 
attempt to fill ``11.8 acres of wetland.'' The corps said he needed a 
section 404 permit and he would have to restore or create wetlands at a 
ratio of 1.5 acres of compensatory mitigation to one acre of wetland 
adversely impacted. The corps indicted that he needed approximately 
17.7 acres of restored and/or created wetland, which they figured would 
cost him about $77,000.
    The corps' claim to jurisdiction over this property is based upon a 
hydrologic connection of the field to an unnamed wetland which is 
adjacent to another unnamed wetland which is adjacent to an unnamed 
tributary which is adjacent to the non-navigable creek, which is said 
to be a tributary to the non-navigable upper reach of a river.
    The scary part of this example is this; the navigable portion of 
any water is more than 160 miles as the crow flies from this land. The 
tenuous hydrologic connection that exists between the farmland and the 
corps ``tributary'' is generated by runoff and only ``occasionally'' 
exits this farmers' property through a culvert in a levee that his 
center pivot irrigation system uses to make its circle. The frequency 
and volume of the surface water runoff is generally very limited. In 
fact, the flow through the unnamed wetland is non-existent most of the 
year. Any water that leaves this property continues through property 
immediately abutting his property. If any water reaches the adjoining 
property, it encounters various water management structures designed to 
obstruct and prevent the surface flow into the unnamed tributary.
    The 130 acres and the 11.8 acres the corps is calling a ``wetland'' 
have been farmed for almost a century. This land is not navigable 
water; it's nowhere near navigable water. If this land can be regulated 
as navigable waters, just about any land can.

    Question 3. You raise the issue of property rights. In the Supreme 
Court decision in Bayview Homes, this issue was explicitly addressed. 
The Court found that, ``Neither the imposition of the permit 
requirement itself nor the denial of a permit necessarily constitutes a 
taking.'' The Court goes on to say that there is Federal legislation 
providing the authority to provide compensation for takings that may 
result from the corps' exercise of jurisdiction over wetlands. I have 
read nothing in Rapanos-Carabell that addresses this question in any 
manner. Can you articulate in more depth where in the decision we are 
reviewing during this hearing that issue is addressed?
    Response. If I own a tractor, I should be able to use it in the 
normal conduct of my farming operations. From my perspective, when the 
Federal Government takes something away--it's a taking. Rapanos and 
Carabell were just trying to use their land. If the corps designates an 
area on my property as a wetland, preventing me from using my property, 
that is a taking. The Rapanos decision is all about private property 
rights.

    Question 4. In your written statement you say, ``In its decision in 
SWANCC and Rapanos, the Supreme Court has worked to check this 
usurpation of congressional authority by the executive branch of the 
Government. . . '' In the Rapanos-Carabell case, the Administration 
provided pages of legislative and regulatory history supporting their 
case. Can you tell me exactly which part of the legislative history of 
the Clean Water Act supports your view that the executive branch of the 
Government has gone beyond the authority granted them by Congress?
    Response. I am not an attorney but as a citizen, I have should be 
able to understand the Government's interpretation of the word 
navigable. As a citizen, I understand it to be as the dictionary 
defines it ``sufficiently deep and wide to provide passage of vessels. 
Navigable waters--provides passage for vessels.'' The term navigable 
must be related to a common understanding. It is common sense that the 
average citizen should be able to understand what Congress had in mind 
as its authority in enacting the CWA.
    In reading through the Legislative History, Congressman Dingell 
talked about defining the term ``navigable waters'' broadly'' His 
statement in context supported including waterways which would be 
``susceptible of being used (in interstate commerce)--with reasonable 
improvement,'' as well as those waterways which include sections 
presently obstructed by falls, rapids, sand bars, currents and floating 
debris.''\1\ Senator Muskie made the following statement--``One matter 
important throughout the legislation is the meaning of the term 
``navigable water of the United States''. . .  The term ``navigable 
waters'' includes all waters bodies, such as lakes, streams, and 
rivers, regarded as public navigable waters in law which are navigable 
in fact. It is further intended that such waters shall be considered to 
be navigable in fact when they form, in their ordinary condition by 
themselves or be uniting with other waters or other systems of 
transportation, such as highways or railroads, a continuing highway 
over which commerce is are or may be carried on with other States or 
with foreign countries in the customary means of trade an travel in 
which commerce is conducted to day (1972). In such case the commerce on 
such waters would have a substantial economic effect on interstate 
commerce.''\2\
---------------------------------------------------------------------------
    \1\ Legislative History 250-51. Representative Dingell's statement
    \2\ Legisltative History 178. Senator Muskie's floor statement in 
support of the 1970 act. See 116 Cong. Rec. 8985; see also H.R. Rep. 
No. 92-1323, 31 (quoting the same language).
---------------------------------------------------------------------------
    In sum, I am sure there is a lot of legislative history but I 
believe the plain language and the above history of the 1972 amendments 
suggest that Congress intended for the word navigable to mean 
``navigable in fact''.

    Question 5. In your testimony, you state that, ``. . . the 
Administration should look to the common elements of the Scalia and 
Kennedy decisions to determine the new standard for CWA jurisdiction.'' 
You base this statement on Marks v. United States. During the hearing, 
neither the Department of Justice, Dr. Adler or Dr. Buzbee, professors 
of law, agreed with your interpretation. On what legal basis do you 
assert that the common elements of Scalia and Kennedy should be used as 
the standard for CWA jurisdiction?
    Response. Professor Adler testified ``therefore, the concurring 
opinion of Justice Kennedy and the grounds of the agreement between 
Justice Kennedy and the plurality offered by Justice Scalia form a 
holding of the Court.'' Further, Marks v. United States represents the 
view of the Supreme Court as to how to determine the rule that results 
from a divided court. Chief Justice Roberts, in his concurring opinion, 
indicated that, ``this situation is certainly not unprecedented,'' and 
pointed to Marks v. United States.

    Question 6. In your testimony, you state that, ``Justice Kennedy 
emphasized the importance of frequency of flow, volume of flow, and 
proximity to traditional navigable waters in determining whether 
nonnavigable water has a ``significant nexus'' with traditional 
navigable waters.'' On the contrary, Justice Kennedy spends pages 12-14 
of his opinion specifically refuting the viewpoint offered by Justice 
Scalia on these issues. On page 13 of Justice Kennedy's opinion he 
states, ``The plurality's first requirement--permanent standing water 
or continuous flow. . .  makes little practical sense.'' On page 15, he 
states, ``The plurality's second limitation--exclusion of wetlands 
lacking a continuous surface connection to other jurisdictional 
waters--is also unpersuasive.'' Justice Scalia writes that the 
dissent's rationale for determining Clean Water Act jurisdiction is 
``demonstrably inadequate.'' Your testimony implies that the Kennedy 
and Scalia opinion are in agreement on these issues. On which specific 
passages in Justice Kennedy's opinion do you base your statements?
    Response. In part ``B'' of Justice Kennedy's opinion, he refers to 
the Corps' existing standard for ``tributaries.'' His opinion states 
that the corps' existing standard,
    ``may provide a reasonable measure of whether specific minor 
tributaries bear a sufficient nexus with other regulated waters to 
constitute ``navigable waters'' . . .  Yet the breadth of this standard 
. . .  leaves wide room for regulation of drains, ditches, and streams 
remote form any navigable-in-fact waters and carrying only minor water-
volumes--preclud[ing] its adoption as the determinative measure of 
whether adjacent wetlands are likely to play an important role in the 
integrity of an aquatic system comprising navigable waters as 
traditionally understood . . .  Indeed, in many cases wetlands adjacent 
to tributaries covered by this standard might appear little more 
related to navigable-in-fact waters than were the isolated ponds held 
to fall beyond the Act's scope in SWANCC.'' (page 25)
    Further, Justice Kennedy states `` . . . mere hydrologic connection 
should not suffice in all cases; the connection may be too 
insubstantial for the hydrologic linkange to establish the required 
nexus with navigable waters as traditionally understood.'' (page 28).
    He goes on to argue that Rapanos must be reheard because ``the 
record gives little indication of the quantity and regularity of flow 
in the adjacent tributaries--a consideration that may be important in 
assessing the nexus.'' ( page 29)
    Finally, Justice Kennedy states ``. . .  the corps bases its 
jurisdiction solely on the wetlands' adjacency to the ditch opposite 
the berm on the property's edge. As explained earlier, mere adjacency 
to a tributary of this sort is insufficient; a similar ditch could just 
as well be located many miles from any navigable-in-fact water and 
carry only insubstantial flow towards it.'' (page 30).

    Question 7. Your testimony indicates that you tend to agree that 
the Clean Water Act should not protect certain wetlands and tributary 
streams. Do you have an estimate about what percentage of the Nation's 
streams and wetlands should not have Federal protection under your view 
of the current law?
    Response. No.

    Question 8. There is only one definition of ``waters of the U.S.'' 
under the Clean Water Act. Do you agree that whatever intermittent 
streams and wetlands are ``too remote'' in your view to be regulated 
should not be covered by any Clean Water Act program, including those 
designed to prevent raw sewage from entering such waterbodies?
    Response. States, including Oklahoma have health and safety codes 
that dictate how individuals must handle and treat ``raw sewage.'' No 
one in Oklahoma can lawfully discharge ``raw sewage'' anywhere--period. 
So my State has taken care of that health problem without the help of 
the Corps and EPA.

    Question 9. In your testimony, you say there is a need for agency 
rulemaking to clarify the Clean Water Act to let landowners and others 
know what the law is and in the interest of ``those members of the 
public who are concerned with protecting as much water resources as 
possible within the actual jurisdiction of the Corps''. But you didn't 
say anything about what Congress should do. As the body that enacted 
the Clean Water Act, doesn't it make more sense for Congress to say 
what waters should be covered by the Clean Water Act?
    Response. Like all businessmen and women, farmers and ranchers need 
a clear set of rules by which to plan and run their businesses. Even if 
Congress were to more clearly identify what waters should be covered by 
the Clean Water Act, the Corps and EPA would still be required to issue 
regulations implementing the new statutory definition. The agencies 
must act to conform their regulatory practice to the Supreme Court's 
decisions in SWANCC and Rapanos. The call for such regulations was loud 
and clear in the Rapanos decision.

    Question 10. You suggest that the way to read the opinions is to 
find the places where the plurality and Justice Kennedy agree, and you 
say that the agencies should do a rulemaking, but Justice Kennedy and 
the plurality don't agree about what the agencies could accomplish in 
rulemaking. In fact, Justice Kennedy points out that ``because the 
plurality presents its interpretation of the Act as the only 
permissible reading of the plain text. . .  the corps would lack 
discretion, under the plurality's theory, to adopt contrary 
regulations.'' Are you hoping that the agencies will change the rules 
to mirror Justice Scalia's opinions?
    Response. As I've indicated above, the common elements from 
Scalia's plurality opinion together with Kennedy's concurring opinion 
provide the rule to be applied from the Rapanos decision. I would point 
out though that Justice Scalia's opinion does track the plain language 
of the text and would be far easier for the regulated community to 
understand than the current Federal interpretations or Kennedy's 
significant nexus test. 

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