[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
Available via the World Wide Web: http://www.access.gpo.gov/
congress.senate
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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'').
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\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).
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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\
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\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.
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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\
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\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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