[Senate Hearing 110-1232]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 110-1232
 
                THE CLEAN WATER ACT FOLLOWING THE RECENT 
                 SUPREME COURT DECISIONS IN SOLID WASTE 
                 AGENCY OF NORTHERN COOK COUNTY AND 
                 RAPANOS-CARABELL
=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON

                      ENVIRONMENT AND PUBLIC WORKS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 13, 2007

                               __________

  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 TENTH CONGRESS
                             FIRST SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

       Bettina Poirier, Majority Staff Director and Chief Counsel
                Andrew Wheeler, Minority Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page

                           DECEMBER 13, 2007
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from The State of California...     1
Kyl, Hon. Jon, U.S. Senator from The State of Arizona............    78

                               WITNESSES

Curry, Hon. Ron, Cabinet Secretary, New Mexico Environment 
  Department.....................................................     1
    Prepared statement...........................................     3
Yaich, Scott C., Director, Conservation Operations, Ducks 
  Unlimited......................................................     5
    Prepared statement...........................................     7
    Responses to additional questions from Senator Boxer.........    12
Desiderio, Duane, Legal Affairs, Staff Vice President, National 
  Association of Home Builders...................................    17
    Prepared statement...........................................    19
    Responses to additional questions from:
        Senator Boxer............................................    36
        Senator Inhofe...........................................    39
Mannina, George J. Jr., Attorney At Law, O'connor And Hannan, LLP    40
    Prepared statement...........................................    41
    Responses to additional questions from:
        Senator Boxer............................................    55
        Senator Inhofe...........................................    58
Buzbee, William W., Professor of Law, Director, Environmental and 
  Natural Resources Law Program, Emory Law School, Director, 
  Center on Federalism and Intersystemic Governance..............    59
    Prepared statement...........................................    61
    Responses to additional questions from:
        Senator Boxer............................................    71
        Senator Inhofe...........................................    74

                          ADDITIONAL MATERIAL

Statements:
    Compliance Consultants, Inc..................................    80
    National Cattlemen's Beef Association........................    82
    The National Stone, Sand & Gravel Association................    89
Letters regarding S. 1870, the ``Clean Water Authority 
  Restoration Act of 2007''......................................97-158


  THE CLEAN WATER ACT FOLLOWING THE RECENT SUPREME COURT DECISIONS IN 
    SOLID WASTE AGENCY OF NORTHERN COOK COUNTY AND RAPANOS-CARABELL

                              ----------                              


                      THURSDAY, DECEMBER 13, 2007

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The full committee met, pursuant to notice, at 9 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Barbara Boxer 
(chairman of the full committee) presiding.
    Present: Senators Boxer, Inhofe, Barrasso.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Welcome, everybody. And I am starting this 
30 seconds early. We have a horrific schedule today, and we 
want to hear from you. So I have determined we are going to 
waive all opening statements, including that of myself and the 
Ranking Member.
    We are dealing here with a couple of Supreme Court 
decisions that deal with the Clean Water Act. I would ask 
unanimous consent to place into the record, in addition to my 
own opening statement, that of any other member and also 
Senator Russ Feingold, who sent a statement in. He has a bill 
on the subject.

    [The referenced prepared statement of Senator Boxer was not 
submitted in time for print.]

    [The referenced prepared statement of Senator Feingold was 
not submitted in time for print.]

    Senator Boxer. So we are going to get started right away. I 
welcome all members and our panel. We will start with Hon. Ron 
Curry. We are going to have 5 minutes per, we are going to have 
to end this in 35 minutes. So please, sir, go ahead.

  STATEMENT OF HON. RON CURRY, CABINET SECRETARY, NEW MEXICO 
                     ENVIRONMENT DEPARTMENT

    Mr. Curry. Good morning. My name is Ron Curry. I am Cabinet 
Secretary of the New Mexico Environment Department in the 
administration of Governor Bill Richardson.
    Senator Boxer. Sir, I can't hear you. Thank you.
    Mr. Curry. My name is Ron Curry. I am Cabinet Secretary of 
the New Mexico Environment Department in the administration of 
Governor Bill Richardson. I want to thank you for allowing me 
to be here today to talk about the Clean Water Act, which has 
been our Nation's main tool in ensuring the continued 
protection of the water we drink, enjoy for recreation and that 
wildlife communities rely on.
    Unfortunately, the effectiveness of this tool has been 
blunted by two recent Supreme Court decisions. This is 
especially troubling in New Mexico, an arid State that has 
relied on the Clean Water Act to help us protect our limited 
but very precious water resources. It is important for us all 
to remember, I think, that the Clean Water Act is one of our 
Nation's great successes. My objective today is to urge you to 
support the solution that clears the waters that have been 
muddied, and I encourage you to join Governor Richardson in 
supporting the Clean Water Restoration Act.
    Prior to these Supreme Court decisions, the scope of the 
Clean Water Act was interpreted broadly to provide protection 
for all the Nation's water bodies, from small upland streams 
that flow intermittently in response to storm events to the 
numerous wetlands that provide shelter for wildlife and create 
a natural filtration system for our aquifers. These waters are 
valued, just as we placed value on the large rivers that are 
conduits for commerce and industry.
    As the person that is charged by Governor Richardson with 
protecting New Mexico's very limited water supply from 
pollution, I can tell you that basing the decision on what 
water deserves to be clean by whether or not you can float a 
boat on it is complete lunacy. These court decisions do not 
take into account the types of intermittent water flows found 
in the Southwest, which experiences a dry season as well as a 
monsoon season in New Mexico. There are times in the summer 
months when you can't even float a small raft down the mighty 
Rio Grande, which is New Mexico's main surface water water 
resource.
    Nowhere have the limitations created by these two recent 
Supreme Court decisions been felt more acutely than in the 
desert Southwest. We simply have no water to waste there, and 
therefore, water we have and its quality is of utmost 
importance to the continued health of our citizens and the 
future economic development of our region. By excluding 
isolated, interState, non-navigable streams and waters from 
protections previously guaranteed in the Clean Water Act, these 
decisions could remove Federal protections for more than 90 
percent of our State's water bodies, because they only flow 
intermittently.
    Additionally, waters within the closed basins that cover up 
to one fifth, one fifth of New Mexico would also be left 
vulnerable to pollution. This includes 84 miles of perennial 
streams, 3,900 miles of intermittent waters, 4,000 playa 
wetlands and numerous headwater springs, cienegas and isolated 
wetlands. Threatened basins include the Tularosa, Mimbres, San 
Augustine, Estancia and Salt in central, south central and 
southwestern New Mexico. The water beneath just one of those 
basins, the Salt, has been estimated by the U.S. Geological 
Survey to contain as much as 57 million acre feet of water, 
including 15 million that is potable.
    Finally, the Southwest is currently in the grips of a 
year's long drought, putting our already limited water 
resources at an even higher premium. To weaken environmental 
oversight now, we believe, is to invite disaster.
    Removing the protections afforded by the Clean Water Act 
from the critical portions of our Nation's aquatic systems and 
protecting only selected reaches of our waters will result in 
real costs for our citizens, costs to the economy, the 
environment and to our quality of life. The citizens of New 
Mexico depend on the protection of a clean environment and a 
sustainable water supply. If we are to ensure that New Mexico's 
waters and the Nation's waters are protected now and for future 
generations, we must act collectively to restore the purpose, 
the scope, the clarity and the predictability of the Clean 
Water Act, so that it will once again serve as the primary and 
comprehensive protection of our Nation's water.
    Thank you.
    [The prepared statement of Mr. Curry follows:]

            Statement of Hon. Ron Curry, Cabinet Secretary, 
                   New Mexico Environment Department


                              introduction


    My name is Ron Curry and I am the Cabinet Secretary of the 
New Mexico Environment Department in the administration of 
Governor Bill Richardson. Thank you for the opportunity to 
provide testimony regarding the importance of restoring Clean 
Water Act protections to many of America's rivers, lakes and 
streams.
    The Clean Water Act has been our nation's main tool in 
ensuring the continued protection of the water we drink, enjoy 
for recreation and that wildlife communities rely upon. 
Unfortunately, the effectiveness of this tool has been blunted 
by two recent Supreme Court decisions. The court's rulings in 
Solid Waste Agency of Northern Cook County v. Corps of 
Engineers (SWANCC) in 2001 and Rapanos et ux., et al. v. United 
States (Rapanos) in 2006 have severely limited the waters that 
receive protection under the Clean Water Act. This is 
especially troubling in New Mexico, an arid State that has 
relied on the Clean Water Act to help us protect our limited 
but precious water resources.
    It is important for us to remember that the Clean Water Act 
is one of this nation's successes. Waters that thirty years ago 
were thick with waste discharges now support thriving 
recreational and economic activities. The U.S. Environmental 
Protection Agency's broad policy of ensuring protection for 
nearly all waters was a benefit to everyone. Our quality of 
life improved and so did the sustainability of aquatic species 
and wildlife. But now those protections are mired in widespread 
confusion and bureaucratic gridlock because it is no longer 
clear what waters will continue to be protected. My objective 
today is to urge your support for a solution that clears waters 
that have been muddied and encourage you to join Governor Bill 
Richardson in supporting the Clean Water Restoration Act (S. 
1870).


                              the problem


    Prior to these Supreme Court decisions, the scope of the 
Clean Water Act was interpreted broadly to provide protection 
for all the nation's water bodies, from small upland streams 
that flow intermittently in response to storm events, to the 
numerous wetlands that provide shelter for wildlife and create 
a natural filtration system for our aquifers. These waters were 
valued, just as we place value on the large rivers that are 
conduits for commerce and industry. First in 2001, and again 
last year, the courts scaled back these broad protections, 
defining ``navigable waters'' narrowly. These decisions have 
created great uncertainty for Federal, State and local 
officials as well as communities and land owners regarding what 
waters are protected.
    In effect, the Supreme Court has ruled that there are two 
classes of water, one class that can be tied directly to 
``navigability'' and deserves Federal protection from 
pollution, and a second class that is completely abandoned or 
must undergo a case by case ``significant nexus'' test whereby 
tributaries or wetlands would be dropped from protection if the 
government cannot directly prove they empty into navigable 
waters. As the man charged by Governor Richardson with 
protecting New Mexico's limited water supply from pollution, I 
can tell you that basing the decision on what water deserves to 
be clean or whether or not you can float a boat on it is 
lunacy. These Court decisions do not take into account the 
types of intermittent water flows found in the Southwest, which 
experiences a dry season as well as a ``monsoon'' season. There 
are times in the summer months when you can't even float a boat 
down the mighty Rio Grande, New Mexico's main surface water 
resource.
    To put it another way, many of you today have glasses of 
water before you. As an analogy, imagine that these glasses 
collectively made up all the waters of the United States. 
Before the 2001 SWANCC decision, the water in those glasses was 
protected by the Clean Water Act. However, today, because the 
SWANCC and Rapanos decisions, as much as one half of those 
glasses may no longer be protected.
    I want you all to have good, clean water in those glasses, 
but if these Supreme Court decisions stand, I just can't say 
for sure if you will.
    The Clean Water Restoration Act solves this problem by 
replacing the term ``navigable waters of the United States'' 
with ``waters of the United States.'' This fix simply restores 
protections that were in place for three decades during which 
time the quality of America's rivers, lakes, wetlands and 
streams improved dramatically. It also restores Congress' 
original intent when it passed the Clean Water Act in 1972, to 
protect our nation's water resources for future generations.


                              local impact


    Nowhere have the limitations created by these two recent 
Supreme Court decisions been felt more acutely than in the 
desert Southwest. We simply have no water to waste, and 
therefore the water we have--and its quality--is of utmost 
importance to the continued health of our citizens and the 
future economic development of our region. By excluding 
isolated, intrastate, non-navigable waters from protections 
previously guaranteed under the Clean Water Act, these 
decisions could remove Federal protections from more than 90 
percent of our state's waterbodies because they flow only 
intermittently. Additionally, waters within closed basins that 
cover up to one fifth of New Mexico would also be left 
vulnerable to pollution. This includes 84 miles of perennial 
streams, 3,900 miles of intermittent waters, 4,000 playa 
wetlands, and numerous headwaters, springs, cienegas and 
isolated wetlands. Threatened basins include the Tularosa, 
Mimbres, San Augustine, Estancia and Salt in central, south 
central and southwestern New Mexico.
    These misguided rulings also threaten New Mexico's 
precious, limited groundwater resources--the source of 90 
percent of our clean drinking water. Surface water bodies are 
often directly linked to groundwater resources. Unregulated, 
damaging surface dumping will therefore ultimately lead to 
pollution in the aquifer. We cannot allow this to happen. The 
water beneath just one of these basins--the Salt--has been 
estimated by the U.S. Geological Survey to contain as much as 
57 million acre feet of water, including 15 million that is 
potable. That could prove to be a vital, and needed, future 
water supply for the rapidly growing city of Las Cruces in 
southern New Mexico. However, if this aquifer is allowed to be 
polluted by surface dumping, its benefits for future New 
Mexicans will be severely curtailed.
    New Mexico also supports efforts to ensure this bill 
preserves our traditional powers over our groundwater 
resources.
    Finally, the Southwest is currently in the grips of a 
years-long drought, putting our already limited water resources 
at an even higher premium. To weaken environmental oversight 
now is to invite disaster. That is why Governor Richardson has 
taken an aggressive leadership position on this issue.


                             state actions


    Governor Richardson has been a leader on the issue of 
restoring protections to New Mexico's waters. In March 2003, he 
filed formal comments with the U.S. Environmental Protection 
Agency petitioning that New Mexico's closed basins and other 
imperiled waters remain protected under the Federal Clean Water 
Act. He also strongly supported the Clean Water Authority 
Restoration Act of 2003, a precursor to the legislation before 
you today.
    More recently, Governor Richardson successfully opposed oil 
and gas drilling in the Valle Vidal of Northern New Mexico, and 
in order to protect its world class trout streams, he fought to 
have those streams listed as Outstanding National Resource 
Waters. He is also fighting to protect the Salt Basin Aquifer 
(whose untapped water resources I mentioned before) from energy 
development at Otero Mesa. Governor Richardson recently 
launched a multi-million dollar effort--the first in State 
history--to provide a State funding source for river ecosystem 
restoration. Finally, he also led an effective collaboration 
with the State of Texas to address salinity issues in the lower 
Rio Grande. States can do a lot, but without lasting Federal 
Clean Water Act protection, the state's efforts to restore and 
defend its waters could be severely eroded.


                      clean water restoration act


    Removing protections afforded by the Clean Water Act from 
critical portions of our nation's aquatic systems and 
protecting only selected reaches of our waters will result in 
real costs for our citizens--costs to the economy, the 
environment and to our quality of life.
    The Clean Water Restoration Act of 2007 provides a logical 
and practical solution by restoring the traditional scope of 
the Clean Water Act and clarifying the purpose of the Act based 
on long-standing regulatory definitions. This is not an 
expansion of Federal authority but a return to a clear and 
comprehensive common goal. This action will also allow 
continued state-Federal partnerships to provide streamlined and 
efficient regulatory programs such as those that have been in 
operation for more than 30 years.
    The Citizens of New Mexico depend on the protection of a 
clean environment and sustainable water supply. If we are to 
ensure that New Mexico's waters and the nation's waters are 
protected now and for future generations, we must act 
collectively to restore the purpose, the scope, the clarity and 
the predictability of the Clean Water Act so that it will once 
again serve as the primary and comprehensive protection of our 
Nation's waters.
    Thank you for inviting me here today to testify on this 
important issue. I look forward to your questions.

    Senator Boxer. Thank you very much.
    Senator Inhofe.
    Senator Inhofe. Yes, for clarification, the gentleman said 
something about the particular legislation that has been 
introduced. This is not a hearing on that legislation, even 
though it is a hearing on the underlying----
    Senator Boxer. That is correct. But I think colleagues can 
say whether they are for it.
    Senator Inhofe. Oh, that is fine.
    Senator Boxer. That is true, we are not having a hearing on 
that legislation at this time.
    Dr. Scott Yaich, Director of Conservation Operations, Ducks 
Unlimited. Welcome, sir.

STATEMENT OF SCOTT C. YAICH, DIRECTOR, CONSERVATION OPERATIONS, 
                        DUCKS UNLIMITED

    Mr. Yaich. Thank you.
    Madam Chairman and members of the Committee, my name is Dr. 
Scott Yaich, and I am the Director of Conservation Operations 
at Ducks Unlimited's national headquarters.
    I appreciate the opportunity to speak today on behalf of 
Ducks Unlimited and our more than one million supporters, as 
well as for the National Wildlife Federation, Trout Unlimited, 
Wildlife Management Institute, Theodore Roosevelt Conservation 
Partnership, Pheasants Forever, Izaak Walton League and The 
Wildlife Society. DU's mission is to conserve, restore and 
manage wetlands and associated habitats for North America's 
waterfowl and for the benefits they provide other wildlife and 
the people who enjoy and value them. DU and our partners are 
science-based conservation organizations, so our perspectives 
on the Clean Water Act are grounded in wetland and water 
related scientific disciplines.
    To ensure that we begin with a common understanding, it is 
worthwhile to State that, from a scientific perspective, a 
wetland is an area that has hydric soils and is subject to 
being flooded or saturated for a portion of the growing season, 
and supports or is capable of supporting wetland vegetation. 
Also, there are at least two different perspectives from which 
the definition of ``waters of the United States.'' can be 
viewed: the legal perspective and the scientific one. The 
former is currently a legal uncertainty and the latter is a 
reality.
    From a scientific perspective, ``waters of the United 
States.'' is an inclusive term reflecting the fact that the 
Nation's waters are inter-connected. The legal definition of 
the waters and wetlands that should be jurisdictional under the 
Clean Water Act should be the large sub-set of those waters 
that must be regulated to fulfill the objective of the Act, 
which is to ``maintain and restore the chemical, physical and 
biological integrity of the Nation's waters.''
    I would like to emphasize five primary points in my 
comments this morning. The first is that of the original 221 
million acres of wetlands in the U.S., over half have already 
been lost. This has significantly reduced the ability of the 
remaining wetlands and other waters to fulfill Federal and 
public interests, among them the capability of the Nation's 
wetlands to support internationally shared waterfowl 
populations.
    I spent 17 years working in Arkansas, much of it in the 
Cache and White River Basins, historically among the most 
important wintering waterfowl habitats in North America. 
Arkansas has lost almost 80 percent of these wetlands, and the 
numbers of waterfowl coming into the region now are 
consequently much lower than they once were.
    My second point is that wetlands serve important ecological 
and societal functions in addition to providing wildlife 
habitat. Wetlands hold water and provide natural flood control 
during times of high rainfall and subsequently slowly release 
it and help maintain baseflows of streams and rivers. In 
Minnesota, for example, watersheds with higher percentages of 
remaining wetlands and lakes have been shown to have lower 
levels of damaging flooding.
    Wetlands also recharge aquifers, such as the High Plains 
Aquifer shared by eight States. Along the South Platte River in 
Colorado, geographically isolated wetlands provide water 
directly to the river via groundwater connections. The water 
from some wetlands there can take 12 years to reach the river, 
but because of the demonstrated certainty of these significant 
hydrologic nexuses, the water in these wetlands has economic 
value and is being bought and sold as part of an interState and 
Federal agreement.
    The negative side of these kinds of connections between 
geographically isolated wetlands and other waters is that the 
water can transport pollutants. For example, in one county in 
Michigan, there are a number of geographically isolated wetland 
Superfund sites from which compounds such as polychlorinated 
biphenyls and heavy metals have leached into aquifers, private 
drinking wells and ultimately to the Clinton River.
    Scientific studies and wetland systems across the Country 
document these hydrologic and ecologic linkages between 
wetlands and other waters. These studies support my third 
point, which is that virtually all wetlands, in combination 
with similar wetlands in a region, do possess significant 
nexuses with navigable and other waters and have a direct 
effect on their quantity and quality. In the Rapanos decision, 
Justice Kennedy strongly indicated the importance he placed on 
the aggregate impacts of wetland loss when he stated that an 
example of the public purposes that should be served by the 
Clean Water Act was to address water quality issues such as the 
Gulf of Mexico's hypoxic or dead zone. This problem can only be 
addressed by approaching it at the interState landscape scale, 
including protecting or restoring some of those 60 million 
acres of wetlands in the Mississippi River watershed whose 
losses contributed to the hypoxia problem.
    My fourth point is that as a result of the Supreme Court 
decision and subsequent agency guidance not being based upon 
the best available wetland science, tens of millions of acres 
of wetlands across the Country are now at significantly 
increased risk of being lost. Although Justice Kennedy's 
significant nexus test provides a science-based conceptual 
approach to wetland regulation, the nature of the nexuses 
between wetlands and other waters makes such as test virtually 
impossible to efficiently apply in a regulatory context. The 
net effect, then, has been decreased protection of wetlands, 
increased regulatory uncertainty and increased administrative 
burdens and processing times required for permits.
    So, my concluding point is that due to the nature and 
almost universal scope of the connections between wetlands and 
other waters of the U.S., fulfilling the primary purposes of 
the Clean Water Act requires that the wetland protections that 
existed prior to the SWANCC decision must be restored. 
Legislation that clarifies that central point is the only 
apparent remedy for restoring the necessary Clean Water Act 
protections.
    Thank you.
    [The prepared statement of Mr. Yaich follows:]

          Statement of Scott C. Yaich, Director, Conservation 
                      Operations, Ducks Unlimited

    Mr. Chairman, members of the Committee, my name is Dr. 
Scott Yaich. I am the Director of Conservation Operations at 
Ducks Unlimited's (DU) National Headquarters in Memphis, 
Tennessee. I am certified as a Professional Wetland Scientist 
and Certified Wildlife Biologist by the Society of Wetland 
Scientists and The Wildlife Society, the professional 
organizations of these respective scientific disciplines. I 
have worked for DU since 2001, and previously served as 
Wetlands Program Coordinator and Assistant Director for the 
Arkansas Game and Fish Commission for 13 years. My current 
duties include responsibility for overseeing DU's scientific 
review and response to issues related to the Clean Water Act.
    I appreciate the opportunity to present our testimony to 
you today on behalf of Ducks Unlimited. Our organization was 
founded in 1937 by concerned and farsighted sportsmen 
conservationists. Our mission is to conserve, restore, and 
manage wetlands and associated habitats for North America's 
waterfowl, and for the benefits these resources provide other 
wildlife and the people who enjoy and value them. DU has grown 
from a handful of people to an organization of over 1,000,000 
supporters who now make up the largest wetlands and waterfowl 
conservation organization in the world. With our many private 
and public partners we have conserved over 12 million acres of 
habitat for waterfowl and associated wildlife in the U.S., 
Canada, and Mexico. Ducks Unlimited is a science-based 
conservation organization. Every aspect of our habitat 
conservation work is rooted in the fundamental principles of 
scientific disciplines such as wetland ecology, waterfowl 
biology, hydrology, and landscape ecology. Thus, our 
perspectives on the Clean Water Act and related issues are 
based on our extensive grounding in these scientific 
disciplines.


             definition of ``waters of the united states''


    There are at least two vastly different but ultimately 
closely intertwined perspectives on the focus of this hearing, 
i.e., the definition of ``waters of the U.S.'' The one that is 
the subject of debate and controversy is the legal definition 
of ``waters of the U.S.'' for purposes of delineating the water 
bodies and wetlands that fall within the regulatory 
jurisdiction of the Clean Water Act. This legal definition of 
``waters of the U.S.'' is one with which Ducks Unlimited claims 
no special expertise. However, because much of our on-the-
ground conservation work involves impacts to wetlands and other 
waters, DU, like the rest of the ``regulated community,'' is 
subject to all the requirements of the Sec. 404 regulatory 
process. This exposes us to both sides of the issue and 
provides us a first-hand awareness of the perspectives of the 
regulated community.
    The other perspective of the definition of ``waters of the 
U.S.'' is the one in which Ducks Unlimited has genuine 
expertise, and that is the ecological perspective. Because this 
definition relates to the real, physical world and is not 
simply a legal construct, it is something to which we can apply 
science. Scientifically, as we will explain, virtually all 
``waters of the U.S.'' (including wetlands) are interconnected, 
and from an ecological perspective ``waters of the U.S.'' must 
therefore be an inclusive definition. To achieve the objective 
of the Clean Water Act, i.e., ``to restore and maintain the 
chemical, physical, and biological integrity of the Nation's 
waters,'' it therefore makes sense that the scientific 
definition should inform the more restrictive legal definition 
which seeks to define the subset of the Nation's waters that 
needs to be protected by the Clean Water Act in order to 
achieve its objectives.
    Our testimony will therefore primarily address the 
scientific perspective of the definition of ``waters of the 
U.S.'' and wetlands in particular, and on the ecological, 
economic and societal consequences and potential impacts of the 
broad regulatory interpretations of the U.S. Supreme Court's 
narrow decisions in the Solid Waste Agency of Northern Cook 
County and Rapanos-Carabell cases.


                       wetland status and trends


    The Clean Water Act (CWA) has been an important component 
of the national framework of wetland conservation for over 30 
years. It has been one of the most successful environmental 
programs in the nation's history, and many aspects of the 
country's water quality have improved measurably since 1972. 
Although the CWA has likely contributed to past declines in the 
rate of wetland loss, recent judicial decisions and regulatory 
actions have put much of the nation's remaining wetland 
resources at increased risk of loss by effectively removing 
them from Federal CWA jurisdiction.
    The status of wetlands in the United States provides 
important context for our concerns about the extent to which 
they are protected by the Clean Water Act. Over 50 percent of 
the estimated 221 million acres of wetlands originally present 
in the United States have been lost. Although the rate of 
wetland loss has decreased since the mid-1950's, at least in 
some measure due to the passage of the Clean Water Act in 1972, 
recent studies document that nationwide losses of wetlands that 
are most important to waterfowl and other wildlife continue to 
exceed 80,000 acres per year. Discounting the addition of ponds 
that have little wildlife value, the Nation has had a net loss 
of over 16 million acres of wetlands since the mid-1950's. 
Since 1986, the Nation has lost over 2 million acres of 
vegetated wetlands and 1.4 million acres of freshwater marshes, 
among the most important types of wetlands for waterfowl and 
other wildlife. These kinds and magnitudes of losses not only 
have a cumulative negative impact on the waterfowl that our one 
million supporters care so passionately about, but also on the 
nation's water quality and other Federal interests.


                      wetland values and functions


    Wetlands as Wildlife Habitat: Wetlands provide a broad 
array of ecosystem functions, each carrying some measure of 
ecological and societal value. For example, the millions of 
small wetlands of the prairie pothole region (PPR) of 
Minnesota, North and South Dakota, Montana and Iowa are among 
the most important wetlands to waterfowl on the continent. 
However, of the approximately 20 million potholes that once 
existed in the northern U.S., only about 7 million remain. Over 
95 percent of the potholes in Minnesota and Iowa have been 
drained or filled.
    An estimated 50 percent of the average total annual 
production of ducks comes from the pothole region, and in wet 
years 70 percent or more of the continent's duck production can 
originate in the PPR. One analysis suggested that duck 
production in the pothole region of the U.S. would decline by 
over 70 percent if all wetlands less than 1 acre in size were 
lost. However, wetland losses far less than this would 
significantly impact waterfowl numbers, and could result in 
closed waterfowl seasons with related economic impacts. In 
addition, 38 percent of the breeding ducks in the PPR of the 
Dakotas are associated with temporary and seasonal wetlands and 
wetlands less than one acre in size embedded in cropland. These 
wetland categories are at the greatest risk of loss in the 
absence of adequate Clean Water Act protections.
    Unfortunately, significant losses of potholes continue to 
occur. The U.S. Fish and Wildlife Service's most recent report 
on wetland status and trends for 1998-2004 stated that, 
``Notable losses of freshwater vegetated wetlands occurred in 
the Prairie Pothole Region of eastern North and South Dakota, 
western Minnesota and Iowa.'' The report also stated that 
82,500 acres of freshwater wetlands across the country were 
lost annually during that period, with 85 percent being smaller 
than five acres in size, and 52 percent smaller than one acre. 
Small wetlands are among the most productive and valuable as 
habitat for wildlife.
    The prairie pothole region is but one example of a 
landscape that has lost a significant proportion of its 
wetlands, with the remaining wetlands being at significant 
risk. Wetland systems such as the playa lakes of the southern 
plains, vernal pools of California, and rainwater basins of 
Nebraska have been negatively impacted to a similar degree, or 
worse. Less than 400, fewer than 5 percent, of the original 
rainwater basins remain in Nebraska today. This means that 
migrating waterfowl are increasingly concentrated and 
increasingly dependent upon this diminished resource. 
Approximately 50 percent of the mid-continent mallards and 90 
percent of mid-continent white-fronted geese depend upon these 
few wetlands during migration. When such large numbers of 
waterfowl are abnormally concentrated on so few water bodies, 
they are highly susceptible to outbreaks of virulent disease 
that can kill large percentages of whole populations. Thus, the 
continued declining trends in wetlands across the nation's 
breeding, migration and wintering waterfowl habitats pose a 
significant threat to their future, to the future of waterfowl 
hunting, and to the other wetland-dependent and wetland-
associated wildlife resources.
    Waterfowl are a valuable interState and international 
economic resource. Approximately 1.8 million waterfowl hunters 
expended almost $1 billion in 2001 for hunting related goods 
and services, resulting in a total estimated economic output of 
$2.3 billion, 21,415 jobs, and over $300 million in State and 
Federal tax revenue. Approximately 18 percent of waterfowl 
hunting in 2001 took place in a State other than the one in 
which the participant resided. For example, in North Dakota, 47 
percent of the state's waterfowl hunters were non-residents, 
and in Arkansas over 42 percent of 89,000 waterfowl hunters in 
2002 traveled there from other states. Furthermore, commerce 
tied to the waterfowl resource and other wetland-associated 
fish and wildlife is not restricted to hunting. In 2001, nearly 
20 million people participated in watching waterfowl and 
shorebirds, with an associated economic output of approximately 
$9.8 billion.
    Hydrologic Functions and Values of Wetlands: Wetlands 
provide important ecological goods and services to the Nation 
through the hydrologic functions they serve. For example, a 
primary function of wetlands is to store water, and this 
equates to protection of downstream landowners and communities 
from flooding. Floods cause an estimated $3.7 billion in annual 
damage in the U.S., and wetland losses have exacerbated this by 
causing ``more flood for less rain.'' The 1993 Midwest flood 
was (before Katrina) the largest flood disaster in U.S. 
history, causing $16 billion in damages. Approximately 60 
million acres of wetlands in the Mississippi River watershed 
have been lost. Not entirely coincidentally, the three states 
with 75 percent of the damage in the 1993 flood (Illinois, Iowa 
and Missouri) have lost 89 percent, 85 percent and 87 percent 
of their wetlands, respectively. The water storage function of 
our remaining wetlands is even more important now because, 
since the flood of 1993 in the St. Louis area alone and on land 
that was underwater in 1993, there have been 28,000 new homes 
built, population has increased by 23 percent, 6,630 acres of 
commercial development has occurred, and there has been a total 
of $2.2 billion in new development.
    Another example is the Red River Basin of northwest 
Minnesota and the eastern Dakotas. Approximately 75 percent of 
wetlands in this region have been drained, and the downstream 
portions of the area now experience major floods every 4-6 
years, and a flood classified as ``devastating'' every 10 
years. Small pothole basins in the Devil's Lake watershed in 
North Dakota could store 72 percent of the total runoff from a 
2-year frequency flood and approximately 41 percent of the 
total runoff from a 100-year frequency flood. In a study of 
flooding in Massachusetts, the U.S. Army Corps of Engineers 
determined that flood damages would increase by $17 million per 
year if the 8,400 acres of wetlands in the Charles River basin 
were drained. Thus, wetland protection is a critical element of 
reducing flood damage along the nation's waterways, a hazard to 
which such areas are increasingly susceptible as a result of 
wetland loss.
    Other Wetland Functions: Virtually all wetlands improve the 
quality of water that they receive and then discharge, doing so 
through either direct, physical means such as trapping sediment 
and associated chemical constituents, or storing and recycling 
nutrients and other chemicals. Evidence of the societal value 
of such water quality services is demonstrated by the actions 
of New York City to initiate a $250 million program to acquire 
and protect up to 350,000 acres of wetlands and riparian lands 
in the Catskills. The city is taking this action to protect the 
quality of its water supply as an alternative to constructing 
water treatment plants that could cost as much as $6-8 billion. 
In South Carolina, the wetland services provided by the 
Congaree Swamp negated the need for a $5 million wastewater 
treatment plant. Ducks Unlimited recently entered into a 
partnership with the National Association of Clean Water 
Agencies to help facilitate these kinds of actions.


                   wetlands at risk: science and the 
                       legal/regulatory landscape


    Estimating Wetlands at Risk: There are ranges of estimates 
of the percentage of the nation's wetlands that have had Clean 
Water Act protections withdrawn from them as a result of the 
SWANCC and Rapanos/Carabell decisions in the U.S. Supreme 
Court, and the subsequent regulatory interpretations by the 
U.S. Army Corps of Engineers (USACE) and Environmental 
Protection Agency (EPA). The agencies estimated that 20 million 
acres would no longer be covered by the CWA as a result of the 
SWANCC decision. The Association of State Wetland Managers 
estimated it to be 30-60 million acres, or approximately 30-60 
percent of the remaining wetlands. In the wake of the Rapanos/
Carabell decision which resulted in the withdrawal of more 
wetlands from CWA jurisdiction, estimates have ranged from 40-
80 million acres.
    In the wake of the SWANCC decision, Ducks Unlimited 
scientists reported in September 2001 the results of an 
assessment of the potential impact of the decision on wetlands 
in the landscapes most important to waterfowl. The post-SWANCC 
guidance had not yet been released, so a range of scenarios was 
evaluated. However, the worst-case scenario was closest to what 
has unfolded since 2001. This assessment estimated that up to 
96 percent of the wetlands in the prairie pothole region and 
the Gulf Coast might no longer be considered jurisdictional (76 
percent and 86 percent of the area extent of wetlands in these 
regions, respectively). In the Great Lakes region, up to 90 
percent of the remaining wetlands (33 percent of the wetland 
acreage) were considered at risk, whereas 88 percent of the 
wetlands (12 percent of the wetland acreage) of the mid-
Atlantic Coast region were at risk. Overall, the vast majority 
of small, non-adjacent wetlands in the areas examined were put 
at significant risk of loss as a result of the SWANCC decision. 
The post-Rapanos guidance simply adds to the wetlands 
considered at risk in that evaluation.
    It is difficult, at best, for the scientific community to 
develop such estimates because terms such as ``geographically 
isolated wetland'' and ``adjacent wetland'' are legal 
constructs that lack any grounding in science. From a 
scientific standpoint, virtually all of the nation's wetlands 
are linked to downstream or down slope navigable waters in one 
way or another. Although wetlands can be geographically 
isolated from navigable waters, and they can be sufficiently 
distant as to be referred to as non-adjacent in a colloquial 
sense, they almost always possess a hydrologic and/or ecologic 
nexus with navigable-in-fact waters. An appreciation of this 
fact is critical to understanding why the restoration of Clean 
Water Act protections is essential if the Nation is to fulfill 
the Act's explicit purpose, which is ``to restore and maintain 
the chemical, physical, and biological integrity of the 
Nation's waters.''
    Significant Nexuses Between Geographically Isolated 
Wetlands and Navigable Waters Are the Rule: There are many 
examples of direct connections between navigable waters and 
wetlands that may on the surface appear to have no linkages 
between them, but the vast preponderance of related scientific 
studies document the significance of these connections to 
achieving the purposes of the CWA. During wet cycles in the 
pothole region, for example, water tables rise and surface 
water levels reach outlet elevations for most geographically 
isolated potholes, thereby augmenting other connections to 
downstream navigable waters. In the aggregate, these 
connections have a significant impact on downstream water 
quality and can significantly affect flood levels. These types 
of connections are demonstrable for many other wetland systems.
    In addition, geographically isolated and other wetlands 
very often contribute to groundwater recharge, and this 
groundwater then moves down slope toward flowing streams that 
ultimately terminate in navigable waters. For example, 20-30 
percent of the water loss from prairie wetlands can be seepage 
to groundwater. Subsequent groundwater discharge into flowing 
streams over 16 miles away from these geographically isolated 
wetlands has been documented. The sand hill wetlands of 
Nebraska have direct linkages to the High Plains (Ogallala) 
aquifer, as do playa lakes farther south, and these wetlands 
are important recharge sites for the aquifer, which stretches 
over thousands of miles and provides groundwater that is shared 
by eight states. Water is being withdrawn from this aquifer 
faster than it is being recharged, so additional loss of these 
types of geographically isolated, but hydrologically and 
ecologically connected wetlands will only exacerbate the 
decline of the aquifer with negative economic affects on 
farming, ranching, and communities in the region, and will 
result in the direct loss of critical wildlife habitat. In 
addition, this aquifer discharges naturally to flowing streams 
and springs that lead to the Platte, Republican and Arkansas 
Rivers. These linkages not only provide a connection that can 
affect water quality, but that are also important for 
maintaining base flows of navigable waters and their 
tributaries. If climate change, as is widely predicted, results 
in an increasingly variable climate with more frequent and 
severe drought in many areas, protecting wetlands that hold and 
slowly release water to downstream users will be increasingly 
important for maintaining wildlife habitat, and for providing 
the water that supports local and regional economies.
    In fact, the South Platte River in Colorado already has an 
economy built upon complex hydrologic models that incorporate 
knowledge of the time that water takes to move from sometimes 
far-removed, geographically isolated wetlands, to the river. 
Water has been valued and traded based on the knowledge that, 
in the example of the Tamarack project, it will take over a 
year for water in a wetland to makes its way to the river where 
it can then be used for base flows to support wildlife needs, 
irrigation, or other economic uses. The Brush Prairie Wetlands 
project is established on the basis of a 5-year transit time 
from the wetlands to the river, and the Little Bijou reservoir 
is 8 miles from the river with water being traded 12 years in 
advance of its transit via groundwater to the river. It is the 
certainty, significance, and predictability of these hydrologic 
nexuses that allows this water to be traded as a commodity with 
real value as part of an interstate/Federal agreement.
    The negative side of these kinds of hydrologic nexuses 
between geographically isolated wetlands and flowing waters is 
that pollutants can also be carried into navigable waters along 
with the water. For example, there are a number of Superfund 
sites in Macomb County, Michigan, the same county as the 
Carabell wetlands (June Carabell, et al. v. United States Army 
Corps of Engineers), in which volatile organic compounds, 
polychlorinated biphenyls, heavy metals and other compounds 
have leached from geographically isolated disposal sites into 
groundwater aquifers, private drinking water wells, and 
ultimately to the Clinton River. Without jurisdiction over 
geographically isolated wetlands, this kind of problem could 
become more widespread.
    Thus, wetland science clearly demonstrates the linkages 
that almost always exist between geographically isolated 
wetlands, remote tributaries, groundwater, and navigable 
waters, supporting the science-based contention that adjacency 
and significant nexus for determining jurisdictional wetlands 
must be interpreted from a functional perspective if water 
quality and quantity is to be protected as intended by the CWA.
    Science and the Post-Rapanos Guidance: Unfortunately, 
because of the variable and interacting interpretations of the 
scientific information and judicial perspectives of the nine 
justices, the Rapanos/Carabell decision ultimately created more 
uncertainty than previously existed. Five justices clearly 
understand that to fulfill the explicitly stated purpose of the 
Clean Water Act, wetlands and other waters with a significant 
nexus to navigable waters and Federal interests must be 
encompassed within the act's jurisdiction. Justice Kennedy's 
opinion was the pivotal one, and he articulated the concept of 
a significant nexus test, laying out the legal basis for a 
science-based conceptual approach with which to assess the 
jurisdictional status of wetlands and other waters. He 
explicitly stated that ecologic and hydrologic linkages, such 
as flood water storage, between wetlands and navigable waters 
should be considered. Most importantly for wetland ecosystems 
such as the prairie pothole region, rainwater basins, and playa 
lakes, he stated that the connections between navigable waters 
and the wetland in question in combination with similar 
wetlands in the region should be considered in a significant 
nexus test. In addition, he gave a strong indication of the 
importance he placed on such aggregate impact considerations 
when he stated that an example of the important public purposes 
that should be served by the Clean Water Act was to address 
water quality issues such as the huge hypoxic zone in the Gulf 
of Mexico, a significant problem that can only be addressed by 
protecting and restoring many wetlands across the interState 
landscape of the Mississippi River watershed. Thus, his opinion 
provided the opportunity to apply a scientific foundation for 
assessing jurisdictional status of all wetlands, regardless of 
distance or degree of isolation from navigable waters.
    Unfortunately, however, due to the nature of the above-
described types of ecologic and hydrologic connections that 
exist between most wetlands and navigable waters, Justice 
Kennedy's significant nexus test is virtually impossible to 
apply scientifically and efficiently within an administrative 
and regulatory context. Thus, the agencies apparently struggled 
while developing the post-Rapanos guidance. Ironically, the net 
effect of the guidance is that it is in many ways the worst of 
all worlds it decreases the level of certainty and clarity that 
existed before the SWANCC and Rapanos cases, dramatically 
reduces the scope of Clean Water Act protections to the 
nation's wetlands, and increases the administrative and 
regulatory burden on the agencies, thereby increasing the time 
required to adequately process permit applications.


                 wetland protection and public opinion


    The public consistently demonstrates a fundamental concern 
for having clean, abundant water, and wetlands and other 
natural habitats that support healthy fish and wildlife 
populations and the associated recreational pastimes. A 
nationwide survey documented that 15 times more citizens 
believed there were too few wetlands than those who believed 
there were too many. The same survey showed that 91 percent of 
the public stated that it was important to protect and conserve 
wetlands, with only 3 percent being neutral or considering it 
unimportant. Furthermore, survey after survey has reinforced 
that the American public has a deep concern about water quality 
and has high expectations for water conservation. A recent 
Harris interactive poll documented that 74 percent of U.S. 
adults agreed that ``protecting the environment is so important 
that requirements and standards cannot be too high, and that 
continuing environmental improvements must be made regardless 
of cost.''
    Thus, the American public, including Ducks Unlimited's 
million supporters, expect that the health of our wetlands and 
other waters will be maintained for their individual interests 
and for the collective good of the Nation.


                              conclusions


    This brief review outlines some of the key aspects of 
wetland and aquatic ecology that provides the scientific basis 
for protecting wetlands within the framework of the Clean Water 
Act, and including them within the legal definition of ``waters 
of the U.S.'' Some of the most important points are:

     a majority of the nation's wetlands have already been 
lost, and this has had a negative impact on the remaining 
wetlands and waters of the U.S. and related Federal and public 
interests;
     wetlands serve important ecologic and societal functions, 
including providing critical habitats for waterfowl and other 
wildlife, providing flood control and base flows for rivers, 
streams and groundwater aquifers, and protecting and improving 
the quality of water that flows downstream to other users; and, 
these functions have an increasing value as wetlands continue 
to be lost;
     as a consequence of recent Supreme Court decisions and 
subsequent interpretations by agencies that resulted in a 
regulatory framework that has not relied upon the best 
available science to ``restore and maintain the chemical, 
physical and biological integrity of the Nation's waters,'' 
millions of acres of wetlands are now at significantly 
increased risk of loss due to the withdrawal of important CWA 
protections and increased regulatory uncertainty;
     science supports the generalization that virtually all 
wetlands, in combination with similar wetlands in a particular 
region, possess significant hydrologic and ecologic nexuses 
with navigable waters and have a direct effect on the quantity 
and quality of such waters;
     fulfillment of the primary purpose of the Clean Water Act 
requires the restoration of wetland protections that existed 
prior to the SWANCC decision.

    In light of all the above, it is clear that the nation's 
remaining wetlands are at significant risk of loss, and the 
waterfowl, other wildlife, and related interests that depend 
upon these wetlands are similarly at risk. Passage of 
legislation such as the Clean Water Restoration Act is the only 
apparent remedy for restoring wetland protections that are at 
least as strong as those that existed prior to 2001. Wetland 
and hydrologic science provides the basis for such protection 
under the Clean Water Act.
                                ------                                


          Responses by Scott C. Yaich to Additional Questions 
                           from Senator Boxer

    Thank you for the opportunity to address the five questions 
that Senator Boxer posed in follow-up to the December 13, 2007 
Environment and Public Works Committee hearing on the topic of 
the Clean Water Act and wetland conservation. My answers appear 
below, following the questions as requested.
    Question 1. Carl Strock, the former Chief of Engineers for 
the Army Corps of Engineers has testified before this Committee 
about the role that wetlands play in natural flood control. 
During significant flooding, wetlands can act as a natural 
sponge, soaking in excess water. As a wetlands scientist, do 
you agree with this assessment and could you elaborate on these 
effects and benefits for the Committee? What role do wetlands 
play in protecting the integrity of traditional navigable 
waters and their tributaries from adverse effects of major 
weather events, such as Hurricane Katrina?
    Response. Wetlands, including geographically isolated 
wetlands, serve a critical function in any watershed in storing 
and holding water and associated pollutants (including 
sediment) that otherwise could flow swiftly and directly to 
navigable waters via their tributaries. Thus, they play a 
significant role in regional water flow regimes by intercepting 
storm runoff and storing and releasing those waters in a 
delayed fashion, either through surface or groundwater 
discharge. The presence of many wetlands decreases runoff 
velocity and volume by releasing water over an extended period, 
the net effect being to abate flooding by lowering and 
moderating the peaks of flood stages, thereby reducing flood 
damages. Study after study clearly documents this relationship, 
for example: one study showed that the presence of wetlands in 
watersheds was a significant factor in the reduction of 50-to 
100-year floods; for selected watersheds in Minnesota the mean 
annual flood increases were inversely related to the percentage 
of lakes and wetlands within the watersheds; the decrease of 80 
percent of the storage capacity of the Mississippi River as a 
result of levees and loss of forested and other wetlands is 
widely considered an important factor in the increased 
frequency of flooding along the Mississippi River; for 
relatively low frequency floods (those occurring with 100-year 
interval or greater, but those with the greatest potential for 
catastrophic losses) the increase in peak streamflow was 
significant for all sizes of streams when wetlands were removed 
from the watershed. Viewed on the whole, these kinds of studies 
provide a clear illustration that the collective contributions 
of small wetlands distributed across a landscape, and often 
located within topographically higher portions of the watershed 
and geographically isolated from flowing waters, can exert a 
very significant and demonstrable cumulative effect on 
floodwater storage and water quality improvement.
    The Prairie Pothole Region is the most important waterfowl 
breeding area on the North American continent. A number of 
studies concluded that the loss of 2/3 of these pothole 
wetlands has contributed significantly to flooding and 
increases in associated damages along the Red River of North 
Dakota and in portions of Minnesota and Iowa. Small wetlands in 
the Devil's Lake watershed in North Dakota (many, if not most, 
geographically isolated) could store 72 percent of the total 
runoff from a 2-year frequency flood and approximately 41 
percent of the total runoff from a 100-year frequency flood. 
Studies in landscapes with other types of isolated wetlands 
have similarly demonstrated that drainage of such wetlands 
results in increased peak flows of navigable waters and their 
tributaries.
    The net effect of wetland loss and the loss of floodwater 
storage capacity, from the perspective of a landowner or 
community living downstream of the wetland losses, is simply 
stated as ``more flood for less rain.'' It is not entirely 
coincidental, for example, that the states of Illinois, Iowa, 
and Missouri experienced 75 percent of the approximately $16 
billion of damage in the 1993 Midwest floods (the largest flood 
disaster in U.S. history before Katrina). These three states 
have lost 89 percent, 85 percent, and 87 percent of their 
wetlands, respectively. And, without adequate wetland 
protection and associated regulatory controls, there is an 
increased risk of flood damage. For example, on land that was 
underwater in 1993 in the St. Louis area alone, there have been 
28,000 new homes built, a human population increase of 23 
percent, 6,630 acres of commercial and industrial development, 
and a total of $2.2 billion in new development. These people, 
businesses, communities, their insurers, and taxpayers cannot 
afford to be subjected to ``more flood for less rain.''
    As an illustration of the recognized value of these types 
of functional contributions of wetlands (including those that 
are isolated) to flood abatement in a watershed, the city of 
Boston is acquiring 5,000 acres of wetlands in the Charles 
River watershed to avoid the necessity of constructing a $100 
million dam for flood control. In a related study, the U.S. 
Army Corps of Engineers determined that flood damages would 
increase by $17 million per year (in 1972 dollars) if the 8,400 
acres of wetlands in the Charles River basin were drained. The 
University of North Dakota has studied flood control options in 
the Red River basin, where 75 percent of the wetlands have been 
drained and there is now a major flood every 4-6 years and a 
devastating flood every 10 years. These researchers have 
demonstrated that the storage of flood water in the basin using 
non-structural flood control mechanisms (including wetland 
conservation) would cost an estimated $32-37 per acre-foot of 
water, compared to $91/acre----foot to $213/acre-foot using 
conventional structural approaches (e.g., dams and levees). 
They indicated that the $2-3 billion in flood damages resulting 
from a 1997 flood could have been avoided with less than a $90 
million investment in non-structural flood control, including 
wetland conservation.
    With respect to coastal storm events such as Hurricane 
Katrina, it is known that coastal marshes can reduce the 
extremely damaging effects of storm surges. It was estimated 
that the storm surge of Hurricane Andrew, for example, was 
reduced by 4.4 to 6 feet by coastal marsh. As a general 
estimate, storm surge is reduced by approximately one foot for 
every 2.7 miles of wetlands. Thus, the extensive loss of 
coastal marsh that has taken place along the Gulf Coast 
resulted in greater damage to inland areas from Hurricanes 
Katrina and Rita than would otherwise have occurred.

    Question 2. Many of southern California's waterways flow 
intermittently, yet they provide critically important habitat 
to numerous species of wildlife. Can you elaborate on the ways 
seasonal streams are important for fish and wildlife habitat?
    Response. I must admit that I am a wetland scientist and 
not a stream scientist, so there are others who could provide 
much stronger and more complete answers to this question. For 
that I apologize, but I will attempt to provide some 
perspective and information related to the topic of 
intermittent streams, by relating below a section (written by a 
colleague, Dr. Helen Neville of Trout Unlimited) taken from a 
soon-to-be-released jointly published report.
    ``Small springs and streams can have tremendous biological 
value, even when intermittent, unconnected to waters outside 
the State (i.e., ``terminal''), or ephemeral. In the Southwest, 
[including southern California,] many streams and even mainstem 
rivers are at least spatially intermittent, drying up in all or 
portions of their run during dry seasons. Yet, despite not 
using them at certain times of the year, trout and other 
fishes, amphibians, and many aquatic invertebrates in the 
Southwest are adapted to persisting in these environments, by 
either moving to seek deeper waters and re-colonizing 
previously dry reaches when available, or becoming dormant 
until flow levels increase. These seasonally dry streams not 
only provide habitat that simply adds more space in which these 
organisms can live, but they provide specific and unique 
habitat some species require during certain life stages. For 
instance, small and even intermittent streams provide important 
spawning and rearing habitat for trout, with requisite lower 
flows for early life stages and protection from competitors or 
predators that cannot spawn in or use these smaller habitats. 
Furthermore, because of their complex nature, small headwater 
streams provide a diversity of habitat and are important 
sources of biodiversity. Species such as salamanders, minnows 
and aquatic insects often have very small geographic ranges, 
and in many cases substantial proportions of their ranges are 
found only in first or second order streams. Additionally, many 
waters in the Southwest are considered terminal, but because 
they are the majority of waters in some regions they encompass 
large amounts of habitat for many species. In Nevada, for 
instance, terminal waters comprise the entire range for 
important federally listed species such as Lahontan cutthroat 
trout.
    Aside from providing habitat directly, small streams 
including those that are intermittent or ephemeral provide an 
essential interface between land and water and upstream and 
downstream habitats. Many organisms depend on allochthonous 
sources of food, or food which is deposited in water from 
terrestrial habitats, and the transfer of these food types is 
much greater in these small streams characterized by a higher 
land-water interface. These streams also export adult emerging 
aquatic insects to terrestrial systems, providing an important 
food source for higher levels in the food chain. According to 
[one] study, emerging adult stream insects can provide 25-100 
percent of the energy to organisms such as birds, bats, 
salamanders, beetles, spiders, and these organisms support yet 
many others of recreational and ecological value higher in the 
food chain. Desert streams can be particularly productive in 
this sense because warmer water temperatures facilitate rapid 
insect growth and a greater flux of food to terrestrial 
organisms. In fact, as the authors of the Baxter study put it, 
in streams of arid ecosystems ``the export of emergent insects 
may be essential to fuel terrestrial predators.'' Furthermore, 
small streams transfer invertebrates and organic material to 
downstream reaches that are critical for the maintenance of 
species in these habitats. In one case, fishless headwater 
streams were estimated to export enough drifting insects and 
other invertebrates to support approximately half of the fish 
production in downstream waters.''

    Question 3. This Committee has spent a considerable amount 
of time on the issue of global warming this year. What are the 
likely impacts of global warming on wetlands and other waters 
of the United States? What are those likely impacts on water 
quality, wildlife, and America's recreation economy?
    Response. Climate change likely will affect wetlands, 
waterfowl, and water quality and quantity in a variety of ways. 
Some degree of climate impacts is predicted for wetlands and 
other habitats in nearly every region important to waterfowl in 
North America. Increasing greenhouse gas concentrations will 
cause a rise in air, soil and water temperatures--including 
wetlands, lakes, streams, rivers, estuaries, and oceans--which 
will challenge even the most adaptive wetland plants and 
animals. Changes in precipitation and more intense storm events 
associated with intense rainfall and associated erosion will 
have a negative impact on streams and wetlands in some areas. 
While it is certain that climate plays an important role in the 
health, functioning and distribution of wetlands, specifically 
how and to what extent climate change will impact particular 
regions and the wetlands there is not yet predictable with 
certainty.
    Wetland and waterfowl habitat conservation presents 
opportunities to reduce net CO2 emissions to the 
atmosphere or to increase the net uptake of carbon from the 
atmosphere through biological carbon sequestration. Protecting 
these habitats will help the country prevent or mitigate some 
climate change impacts. One of the most significant and costly 
impacts of climate change is the sea level rise that will cause 
inundation of coastal areas, shoreline erosion, and destruction 
of important wetland and mangrove ecosystems. In past eras of 
sea level rise, wetland systems could naturally retreat inland, 
but roads and coastal infrastructure has precluded this option 
along much of the U.S. coastline. Thus, the area of coastal 
wetlands is predicted to diminish greatly during this century. 
Reduction in coastal marsh habitats is expected to be most 
severe along the U.S. Gulf and Atlantic coasts where effects of 
sea level rise is compounded by subsidence and freshwater and 
sediment diversions.
    Water quality and quantity can also be affected by climate 
change in several ways. According to the EPA Climate and Policy 
Assessment Division, in a warmer climate, higher temperatures, 
increased evaporation, and changes in precipitation could 
significantly influence runoff in the Mississippi Alluvial 
Valley. Lower river flows, lake levels, and groundwater levels 
in the summer would affect water availability and increase 
competition among domestic, industrial, and agricultural uses 
of water, as is being observed in other parts of the Southeast. 
Declining groundwater levels are already a significant concern 
throughout parts of Mississippi, Louisiana and Arkansas. Warmer 
and drier conditions, particularly when accompanied by sea 
level rise, could compound problems of inadequate water 
supplies due to higher demand and lower flows. If increased 
precipitation occurred, it could help alleviate some water 
supply problems, but would increase flooding, erosion, and 
levels of pesticides and fertilizers in runoff from 
agricultural lands, a major water quality issue there.
    The quality of groundwater is also being degraded in 
several areas of the U.S. by a variety of factors that could be 
made worse as a result of climate change, including saltwater 
intrusion. As groundwater pumping increases to serve municipal 
and agricultural demand along the coast and less recharge 
occurs, groundwater aquifers are increasingly affected by 
seawater. Surface water supplies, which are more sensitive to 
climate change and variability, are being relied upon more, 
which further exacerbates water quantity conflicts.
    From an economic perspective, sportsmen and sportswomen 
spend approximately 12 million days hunting waterfowl annually 
in the U.S. Waterfowl viewing is also popular among the more 
than 46 million birders. The effects of increased drought in 
the Prairie Pothole Region of the northern U.S. and central 
Canada, brought on by climate change, could significantly 
reduce the average population of ducks. Declines in duck 
numbers would have an impact on waterfowl hunting and viewing 
opportunities and a subsequent loss of revenue associated with 
waterfowl-related recreation. Declines from loss of breeding 
habitat could be exacerbated by loss of migratory habitat. In 
2001, there were 1.8 million waterfowl hunters who spent nearly 
30 million recreational days each year hunting waterfowl. They 
expended nearly $1 billion annually for waterfowl hunting on 
trips and equipment (not including boats, campers, vehicles, 
etc.). This economic activity generated a total economic output 
of $2.3 billion, 21,415 jobs, and $725 million in employment 
income, in addition to over $330 million in taxes. Waterfowl 
hunting is big business and any major changes in hunting 
opportunity as a result of climate change will have significant 
impacts on that business.

    Question 4. Many scientists agree that wetlands provide 
significant water quality benefits. Could you explain how 
healthy wetlands help improve the quality of water that our 
families depend on each day? Do wetlands lessen the need for 
water treatment infrastructure, and if so, are there cost 
savings to communities?
    Response. It is well established that wetlands provide 
significant water quality benefits by trapping, precipitating, 
transforming, recycling, and/or exporting many of its chemical 
and waterborne constituents. They serve as a natural buffer 
zone between upland drainage areas and open or flowing water. 
They can improve water quality by removing heavy metals and 
pesticides from the water column, and by facilitating the 
settling out of sediment particles to which many pollutants are 
attached. Wetlands remove excess nutrients, e.g., phosphorus 
and nitrogen compounds, by incorporating them into plant tissue 
or the soil structure and by fostering an environment in which 
microbial and other biological activity pulls these compounds 
out of the water, thereby enhancing its quality.
    Importantly, water quality contributions of wetlands can 
occur no matter where the wetland occurs on the landscape, and 
even geographically isolated waters also serve as chemical and 
nutrient sinks, trapping and holding these compounds. For 
example, it has been shown that when water naturally filters 
through Delmarva bays instead of being circumvented through 
drainage canals to flowing waters, it flows through groundwater 
pathways and reaches the Chesapeake Bay with much of its 
nitrogen having been removed. Nitrogen is one of the principal 
pollutants of concern in the waters of the Chesapeake Bay. In 
another study, a wetland receiving discharges of treated sewage 
removed 4.9 tons of phosphorous, 4.3 tons of ammonia, and 138 
pounds of nitrate each day, while adding 10 tons of life-
supporting oxygen to water entering a tributary to the Delaware 
River.
    Even geographically ``isolated'' playa lake wetlands can 
improve the water quality of storm runoff, with the water 
quality in some playas being better than that found in storm 
runoff entering wetlands. Playas are often a source of 
groundwater recharge, so this wetland function contributes to 
maintaining the quality of groundwater used for drinking and 
irrigation and shared by several states. Because some of this 
groundwater discharges naturally into streams and springs, from 
a functional perspective, there is therefore a significant 
nexus between the status and water quality of the playas and 
the status and water quality of groundwater aquifers, and 
finally flowing waters and tributaries.
    It has been demonstrated recently that some wetlands in 
California were able to remove an average of 69 percent of the 
selenium contained within agricultural runoff to the wetlands, 
thereby naturally reducing the availability of this trace 
element which becomes toxic when it is bioaccumulated through 
the food chain. Studies have also shown the ease with which 
changes in the chemistry of surface waters, including wetlands, 
are transported and reflected in the water quality of 
groundwater. For example, where protection has been lax and 
toxic chemicals have been introduced into some isolated 
wetlands in the same county in Michigan in which the Rapanos 
wetlands are located, domestic water supply wells have been 
contaminated and the wetlands and immediate vicinity had to be 
declared a superfund site.
    The increased flood flow that is directly associated with 
the loss of wetlands is an important factor in streambank 
erosion, which is a significant water quality problem in many 
downstream areas in the U.S., contributing significantly to 
sediment pollution loads in flowing waters. Sedimentation, 
including streambank erosion, has created navigation and 
ecological problems on the Illinois River.
    The tangible economic value of water quality services 
provided by wetlands, including isolated wetlands, is 
demonstrated by the example of New York City in which 
conserving wetlands enabled the city to save billions of 
dollars. A program was initiated to acquire and protect up to 
350,000 acres of wetlands and riparian lands in the Catskills 
at the cost of several hundred million dollars to protect and 
maintain the city's drinking water quality to EPA standards. 
This action by the city has successfully maintained the quality 
of its water supply as an alternative to constructing water 
treatment plants which could cost as much as $6-8 billion plus 
annual operating costs of $300 million. In South Carolina, a 
study documented that without the wetland services provided by 
the presence of Congaree Swamp a $5 million wastewater 
treatment plant would be required.
    These are but a few examples of how wetlands benefit water 
quality, communities, and individual taxpayers and homeowners. 
If wetlands are unprotected and continue to be lost, the 
quality of the nation's surface and groundwater will inevitably 
suffer, and the costs of treating drinking water and water for 
other domestic uses will unavoidably increase.

    Question 5. Once streams, tributaries, wetlands and other 
aquatic habitat are filled and lost, is there any effective way 
to mitigate for or replace such losses?
    Response. Again, being a wetland scientist, I will speak to 
the question from a wetland perspective. Although not a stream 
scientist, I am aware that restoration of stream habitats is an 
art and science that is still in its earliest stages. It lags 
behind the science of wetland restoration and mitigation, thus 
the issues and concerns I will point out relative to wetlands 
are even more serious concerns when viewed from the perspective 
of streams and tributaries.
    There are two perspectives from which to view the 
effectiveness of mitigation of wetland losses regulatory 
effectiveness, and functional effectiveness. Both were 
addressed by the National Academy of Sciences in 2001 in their 
exhaustive examination and 322-page report on ``Compensating 
for Wetland Losses Under the Clean Water Act.'' It is important 
to note that they conducted their review prior to the U.S. 
Supreme Court's SWANCC decision. Their primary conclusion was 
that ``the goal of no net loss is not being met for wetland 
functions by the mitigation program, despite progress in the 
last 20 years.'' Another conclusion was that ``performance 
expectations in the Section 404 permits have often been 
unclear, and compliance has often not been assured nor 
attained.'' Thus, even before the SWANCC and Rapanos decisions, 
wetland losses were not being effectively mitigated. With the 
removal of millions of acres of wetlands from regulatory 
protection in the wake of SWANCC and Rapanos, it is safe to say 
that wetland losses in the U.S. are being mitigated even less 
in 2008 than they were at the time of the National Academy of 
Sciences report.
    From the standpoint of whether the functions of wetlands 
and other aquatic habitats can be effectively replaced or 
mitigated, the answer must be qualified. The most accurate 
overarching answer would be, ``no, there is no effective way to 
mitigate for or replace such losses.'' However, that answer 
must be qualified because some will point out that some 
individual wetland functions can be mitigated in a reasonably 
effective way. For example, a hypothetical 100-acre wetland 
that averages 2 feet in depth could provide a floodwater 
storage function for 200 acre-feet of water. If that wetland 
were drained or filled, that water storage function could be 
mitigated with an excavated 10-acre hole that was 20 feet deep.
    However, without the vegetation that naturally occurred in 
the 100-acre wetland and which could not be regenerated in the 
artificial waterbody, that 10-acre water-filled hole would not 
provide mitigation for the wildlife habitat that was lost with 
the 100-acre wetland. It would also not be able to provide the 
water quality maintenance and improvement functions that were 
being provided in the natural wetland. Other functions would 
similarly not be effectively replaced.
    Thus, while some studies document adequate mitigation of 
some wetland functions in replacement wetlands, at a national 
scale the broad spectrum of functions provided by natural 
wetlands is not being completely and cost-effectively 
mitigated. This fact underscores the importance of protecting 
the Nation's remaining wetlands. It is far more effective and 
efficient to protect existing wetlands than it is to attempt to 
replace wetland functions through artificial mitigation. As a 
result of the uncertainties associated with the nascent art and 
science of stream restoration, this is even truer for streams 
and tributaries.
    On behalf of Ducks Unlimited, I would like to express my 
appreciation for the opportunity to provide answers to Senator 
Boxer's questions, and expand upon our testimony on this 
critical issue. I hope that my answers will provide 
perspectives that are useful to the committee members.

    Senator Boxer. Thank you, sir. Just perfect timing.
    Our next speaker is Duane Desiderio, Legal Affairs, Staff 
Vice President, for the National Association of Home Builders. 
Welcome, sir.

    STATEMENT OF DUANE DESIDERIO, LEGAL AFFAIRS, STAFF VICE 
        PRESIDENT, NATIONAL ASSOCIATION OF HOME BUILDERS

    Mr. Desiderio. Thank you, Madam Chair, Ranking Member 
Inhofe and distinguished members of the Committee. Thank you 
for the opportunity to testify on behalf of the National 
Association of Homebuilders.
    NAHB represents over 235,000 corporate members that in turn 
employ millions of individuals in all facets of the residential 
construction industry. NAHB's members are proud to be part of 
the Clean Water Act's great success. As they provide housing 
for our Nation's citizens, our members avoid and minimize 
impacts on aquatic resources through residential site design 
and routinely provide mitigation beyond project impacts.
    As you are well aware, the housing industry is experiencing 
one of the greatest downturns in history. This has had a 
profound effect on the national economy, as housing 
affordability and finance have been severely impacted 
throughout 2007. NAHB believes that Congress should focus its 
limited time and resources on legislation to help homeowners 
overcome the current crisis rather than pursue measures that 
will restrict the industry's ability to recover.
    Recent legislation proposals that would expand the Clean 
Water Act's scope to cover virtually all intraState waters 
would harm our already distressed industry. Stretching the Act 
to include features like isolated ponds, ephemeral washes and 
drainage ditches will require the agencies to process thousands 
of more permits, straining an already-burdened regulatory 
program.
    Such changes would not be consistent with the original 
intent of Congress when it enacted the Act back in 1972. 
Current supporters of expansive Federal control cite to a 1972 
conference report that the term ``navigable waters'' must be 
given the broadest possible constitutional interpretation. That 
statement must be placed in proper historic context.
    Back in 1972, Congress expressed frustration that the Army 
Corps was not regulating to the fullest extent regulated by 
case law. Courts had confirmed that traditional navigable 
waters encompassed waters that are wholly intraState, which 
served as links in the chain of commerce and connected to land-
based channels of transportation. Congress sought to expand 
Federal power to encompass features like Lake Chelan in 
Washington State, a body of water 55 miles long, almost 2 miles 
wide, and navigable in fact but intraState, and not connected 
to other water-based highways of commerce. This is what the 
1972 conferees had in mind when they wanted to give the 
broadest possible constitutional interpretation to the phrase 
navigable waters. The founders of the Clean Water Act had no 
intent to subject isolated ponds, ephemeral washes, upland 
ditches or the like to Federal control.
    Sweeping such features within the Federal regulatory net 
would raise serious constitutional questions. As the Supreme 
Court stated in the 2001 SWANCC case, regulation of isolated 
intraState waters invokes the outer limits of Congress' 
navigation authority. It also overrides the usual balance of 
Federal and State powers so intrinsic to our constitutional 
framework.
    In a case prior to SWANCC, the Fourth Circuit Court of 
Appeals declared illegal Corps and EPA regulations over 
intraState lakes, wetlands, prairie potholes and other features 
that lacked any nexus whatsoever to traditional navigable 
waters. As the Fourth Circuit wrote in this case, were this 
regulation a statute duly enacted by Congress, it would present 
serious constitutional difficulties. Thus, if Congress now 
enacted legislation of such immense jurisdictional magnitude, 
it would immediately raise the specter of its 
constitutionality.
    Advocates for a broader jurisdictional scope also maintain 
that the Supreme Court's recent decision in Rapanos confused 
the regulatory landscape. It is true that Rapanos failed to 
garner a majority of the Court. However, five Justices did 
agree to important principles that have provided necessary and 
valuable instruction. Chief among them is that while non-
navigable features can be subject to the Clean Water Act, they 
must bear more than a hypothetical or potential connection to 
traditionally navigable waters.
    As Justice Kennedy wrote in concurrence, when wetlands' 
effects on water quality are speculative or insubstantial, they 
fall outside the zone fairly encompassed by the phrase 
navigable waters. As a result of this consensus among the 
Justices, lower courts are now taking a close look at the facts 
before them to determine if a particular non-navigable water 
feature has the required connection to navigable in fact 
waters. Clean Water Act law and policy only stand to gain as 
the agencies develop better factual evidence in the field to 
support their jurisdictional determinations over private 
property.
    Thank you for your consideration. I look forward to 
answering your questions.
    [The prepared statement of Mr. Desiderio follows:]

  Statement of Duane Desiderio, Legal Affairs, Staff Vice President, 
                 National Association of Home Builders

    Madame Chair, Ranking Member Inhofe, and distinguished 
members of the Committee, thank you for the opportunity to 
testify on behalf of the National Association of Home Builders 
(NAHB). My name is Duane Desiderio and I am Staff Vice 
President for Legal Affairs at NAHB. I appreciate the 
opportunity to talk about the case law and legislative history 
surrounding the Clean Water Act (CWA) over the past 35 years. 
NAHB is a Washington, DC.-based trade association representing 
235,000 corporate members that, in turn, employ millions of 
individuals in the home building, remodeling, multifamily 
construction, property management, subcontracting, design, 
housing finance, building product manufacturing, and light 
commercial construction industries. NAHB's chief goal is to 
provide and expand opportunities for all consumers to have 
safe, decent and affordable housing.
    NAHB and its members have been advocates of the CWA since 
its inception. The CWA has helped the Nation make significant 
strides in improving the quality of our water resources. Due to 
the nature of home building activities, NAHB members must often 
obtain section 402 and 404 permits for their home building 
projects. Beyond the permit requirements, our members regularly 
design their projects to avoid sensitive areas, showcase 
natural resources, and mitigate adverse impacts. As an 
organization, NAHB has tirelessly advocated for the CWA and an 
associated permitting scheme that is consistent, predictable, 
timely, and focused on protecting true aquatic resources. NAHB 
has also strongly supported implementing measures that honor 
the congressional intent to provide a cooperative Federal and 
State program where the Corps' and EPA's efforts are 
complemented by states' efforts.
    As you are well aware, while NAHB and its members have 
continued to work with the Corps and EPA on required permits, 
the housing industry has been experiencing one of the greatest 
housing downturns in recent memory. Housing affordability, 
accessible housing and housing finance, primary components to 
NAHB's mission and philosophy, have been severely impacted 
throughout 2007. NAHB believes that Congress should focus its 
limited time and resources on legislation to help homeowners 
overcome the current crisis, rather than pursue legislative 
ideas that will restrict the industry's ability to recover.
    By improving its implementation, removing redundancy, and 
further clarifying roles, the CWA can do an even better job at 
facilitating compliance and protecting the aquatic environment. 
For years, landowners and regulators alike have been frustrated 
with the continued uncertainty with the scope of Federal 
jurisdiction over ``the waters of the United States'' under the 
CWA. However, legislative amendments or changes to the CWA that 
would vastly increase Federal regulatory power over private 
property, and open the door for increased litigation and permit 
requirements, will not benefit the home building industry. Such 
proposed changes are not consistent with the original 
legislative intent of the CWA back in 1972. They would also 
represent a marked departure from Supreme Court decisions and 
raise significant constitutional questions. This testimony will 
show:

    1. In 1972, the 92d Congress was frustrated that, at that 
point in time, the Corps was taking a too-narrow view of its 
authority over traditional navigable waters. Thus, in enacting 
the CWA, Congress intended to expand jurisdiction to cover all 
aquatic links in the chain that served as a highway of 
interState commerce. The original intent of the CWA framers in 
1972 was to include a greater number of waters that served as 
channels of interState commerce, as long as they connected to 
land-borne modes of transportation--even though such aquatic 
features were themselves intraState and did not connect to 
other waterbodies. Review of the legislative history reveals 
that, in 1972, Congress did not intend to sweep all intraState 
features that did not support commercial traffic, such as 
isolated waters, drainage ditches, and erosional depressions, 
into the Federal regulatory net.

    2. Prior to Solid Waste Agency of Northern Cook County 
(SWANCC), there was rampant confusion in the courts regarding 
the CWA's scope. Several of the U.S. circuit courts of appeals 
questioned the validity of the migratory bird rule, the primary 
theory used by Federal agencies to assert CWA jurisdiction over 
isolated, intraState waters in the pre-SWANCC era. One court 
went so far as to strike regulations of the U.S. Army Corps of 
Engineers (``Corps'') as illegal, because they raised 
significant questions under the Commerce Clause of the U.S. 
Constitution. Contrary to the belief held by those who now seek 
CWA expansion beyond all magnitude, SWANCC clarified the pre-
existing confusion in the courts regarding the status of 
isolated waters.

    3. While the Rapanos decision did not garner a majority of 
the Court to articulate an over-arching test for CWA 
jurisdiction to apply in all situations, there are many areas 
of consensus among the five Justices who concurred in the 
judgment. Questions remain after Rapanos, but that case has 
clarified many points of law to which the lower courts are now 
adhering. Chief among them is that a majority of the Court 
stated that CWA jurisdiction could not be supported though a 
remote, attenuated connection to traditional navigable waters. 
Moreover, the Justices called for agency rulemaking, and the 
Federal Government's recent effort to address Rapanos with 
field guidance should be given a chance to work.

congress's intent in 1972, when it enacted the clean water act, was to 
   expand only the scope of traditional navigable waters serving as 
                         highways of commerce.


    The Conference Report supporting the 1972 Act states:
    The conferees fully intend the term ``navigable waters'' be 
given the broadest possible constitutional interpretation, 
unencumbered by agency determinations which have been made or 
may be made for administrative purposes.
    S. Rep. No. 92-1236, at 144 (1972), reprinted in 1 
congressional Research Serv., Legisl. Hist. of the Water 
Pollution Control Act Amends. of 1972, at 327 (hereafter, ``CWA 
Legislative History''). To gain a full understanding of what 
the 1972 conferees actually intended, it is critical to 
consider the full context of congressional action in the water 
arena back in the 1970's. Scrutiny of the legislative history 
shows that the 1972 CWA indeed expanded the Federal role over 
water features, to advance the national effort to control water 
pollution. The crucial point, however, is this: Congress's 
intent in 1972 was to enlarge the scope of waters that served 
as highways for commerce. Its purpose was not to assert Federal 
authority over all intraState waters that had remote, trivial, 
or tenuous connections to interState commerce.

    A. Early 1970's congressional Oversight Regarding the 
Rivers and Harbors Act.
    In the months immediately preceding the CWA's 1972 
enactment, Congress held hearings regarding the Corps's 
implementation of the Rivers and Harbors Act of 1899 (``RHA''). 
Among other things, the RHA outlaws ``obstruction to the 
navigable capacity of any of the waters of the United States,'' 
and authorizes the Corps to issue permits for excavation or 
fill within ``any navigable water of the United States.'' RHA 
section 10, 33 U.S.C.  403. Congress expressed frustration 
that, at that time, the Corps took a too-constrictive view of 
its RHA jurisdiction over traditional navigable waters. See 
generally Virginia S. Albrecht and Stephen M. Nickelsburg, 
Could SWANCC Be Right? A New Look at the Legislative History of 
the Clean Water Act, 32 ELR 11042, 11044-46 (2002). A 1972 
report from the House Committee on Government Operations stated 
that the Corps ``narrowly defined the waters to which [the 
RHA's] provisions apply, and thus severely limited the scope of 
the law.'' H.R. Rep. 92-1323, at 27. Congress believed that the 
Corps unnecessarily bounded its RHA purview to the time-worn 
test for navigability announced 100 years earlier in The Daniel 
Ball, 77 U.S. 557, 563 (1870), that waters are ``navigable in 
law when they are navigable in fact. And they are navigable in 
fact when they are used, or susceptible of being used, in their 
ordinary condition, as highways for commerce, over which trade 
or travel are or may be conducted.'' The House Committee 
believed that the Corps had ignored jurisprudence from the 
first half of the 20th century, where the Supreme Court 
recognized that Federal authority stretched to encompass non-
navigable waters that may be made navigable-in-fact with 
``reasonable improvements.'' United States v. Appalachian Elec. 
Power Co., 311 U.S. 377, 407-09 (1940). See also Econ. Light & 
Power Co. v. United States, 256 U.S. 113, 118 (1921) (non-
navigable points on Des Plaines River ``above the head of 
steamboat navigation'' regarded as navigable-in-law).
    Accordingly, in 1972 hearings, the House took the Corps to 
task for not exercising RHA jurisdiction consistent with modern 
judicial expansions. The Government Operations Committee 
reported that Corps regulations at that time ``were based on 
similar language used over 100 years ago in. . .  The Daniel 
Ball,'' but:
    [M]ore recent judicial opinions have substantially expanded 
that limited view of navigability to include waterways which 
could be ``susceptible of being used. . .  with reasonable 
improvements,'' as well as those waterways which include 
sections presently obstructed by falls, rapids, sand bars, 
currents, floating debris, etc.
    H.R. Rep. No. 92-1323, at 29-30. Those ``recent judicial 
opinions'' cited by the House were nine cases from 1874 through 
1965, including Appalachian Power and Economy Light. None of 
those decisions involved anything remotely resembling a 
drainage ditch, an ephemeral wash, or an isolated pond. Rather, 
this 1972 House Report endorsed Federal regulation over non-
navigable features, or non-navigable segments of navigable 
waters, as needed to service the constitutional power to 
regulate navigation under the Commerce Clause:
    The plenary Federal power over commerce must be able to 
develop properly with the needs of that commerce which is the 
reason for its existence. It cannot properly be said that the 
Federal power over navigation is enlarged by the improvements 
to the waterways. It is merely that improvements make 
applicable to certain waterways the existing power over 
commerce.
    Appalachian Power, 311 U.S. at 409 (emphasis supplied). 
Thus, the court cases considered by Congress in its early 
1970's review of the RHA upheld Federal authority over non-
navigable features, but only as necessary to effectuate the 
Federal navigation power.
    The 1972 House strongly encouraged the Corps to extend its 
regulations beyond the limits of The Daniel Ball, and to 
encompass large intraState bodies of water that connect as part 
of a land-based chain of commerce including roads, railroads, 
and other transportation channels. What Congress had in mind 
for Federal protection, which had escaped Corps regulation to 
that point in the early 1970's, were bodies of water like Lake 
Chelan in Washington State:
    Another instance of the [C]orps' limited view of its 
responsibilities has been its opinion that it cannot exercise 
jurisdiction over waters which, although clearly navigable, do 
not ``form in their ordinary condition by themselves, or by 
uniting with other waters, a continued highway over which 
commerce is or may be carried on with other states or foreign 
countries. . . .'' For example, the Acting Chief of Engineers 
informed the subcommittee, by letter of February 20, 1970, that 
Lake Chelan--a body of water 55 miles long and almost 2 miles 
wide in the State of Washington, and clearly navigable--``is 
not considered by the Corps of Engineers to be a navigable 
waterway of the United States,'' because ``navigation on Lake 
Chelan cannot form a part of either the interState or 
international system.''
    Although most interState commerce 150 years ago was 
accomplished on waterways, there is no requirement in the 
Constitution that the waterway must cross a State boundary in 
order to be within the interState commerce power of the Federal 
Government. Rather, it is enough that the waterway serves as a 
link in the chain of commerce among the States, as it flows in 
the various channels of transportation (highways, railroads, 
air traffic, radio and postal waterways, etc.) The ``gist of 
the Federal test'' is the waterways' use ``as a highway,'' not 
whether it is ``part of a navigable interState or international 
highway.'' Utah v. United States, 403 U.S. 9, 11 (1971). . . .
    H.R. Rep. No. 92-1323, at 30 (emphasis supplied). The 
Government Operations Committee thus urged the Corps to enlarge 
its RHA jurisdiction, to regulate ``all waterways. . .  which 
are now, or were, or may in the future be, capable of being 
used for purposes of interState or foreign commerce, 
irrespective of whether the waterway itself crosses a State 
line, irrespective of when, how or by what mode, such use 
actually occurs, and irrespective of the quantity or kind of 
items of commerce such use affects.'' Id. at 31-32. Following 
this congressional oversight, the Corps expanded its 
regulations. See 37 Fed. Reg. 18279 (Sept. 9, 1972).
    Thus, the issue for Congress in the early 1970's, while it 
deliberated the extent of the RHA's reach and Corps 
administrative interpretations there under, was that the agency 
did not go as far as it needed in regulating traditional 
navigable waters. Congress perceived ample room within the 
available bounds of the navigation power under the Commerce 
Clause--which the Corps was not exercising.

    B. Legislative History of the 1972 Clean Water Act.
    The legislative debate surrounding enactment of the Federal 
Water Pollution Control Act Amendments of 1972 draws important 
context from Congress's contemporaneous RHA analysis. Indeed, 
key Members of Congress who endorsed 1972 CWA reform cited 
portions of the RHA legislative history verbatim to explain 
their views of the new law.
    It was logical for the CWA amenders to place heavy reliance 
on the congressional reports regarding the RHA. Both statutes 
depend on concepts of navigability as touchstones for their 
jurisdictional reach. Rep. John D. Dingell (D-MI), the House 
floor manager for the 1972 CWA, cited key passages from the 
House Government Operations Committee report discussed above, 
in making his personal statement on the CWA conference bill. In 
remarking on the conferees' new definition of ``navigable 
waters'' as ``the waters of the United States'' (which remains 
the current definition codified at 33 U.S.C.  1362(7)), Rep. 
Dingell stated:
    The new and broader [CWA] definition is in line with more 
recent judicial opinions which have substantially expanded that 
limited view of navigability--derived from the Daniel Ball case 
. . .--to include waterways ``susceptible of being used. . .  
with reasonable improvements,'' as well as those waterways 
which include sections presently obstructed by falls, rapids, 
sand bars, currents, floating debris, et cetera. . . .
    1 CWA Legislative History, at 250 (emphasis supplied); 
compare to H.R. Rep. No. 92-1323, at 29-30 (discussed supra p. 
5). Thus, just like Congress's study of the RHA, Rep. Dingell 
sought the same expansion of ``navigable waters'' beyond The 
Daniel Ball test, but he did so here for CWA purposes. And as 
evidence of these ``more recent judicial opinions,'' Rep. 
Dingell cited the same nine court cases as the House did in its 
RHA report, including the Supreme Court decisions in 
Appalachian Power and Economy Light. Ibid. He drew a direct 
connection between the new CWA definition of ``navigable 
waters'' as ``the waters of the United States,'' and the 
outmoded view that frustrated Congress during its parallel RHA 
review: ``No longer are the old, narrow definitions of 
navigability, as determined by the [C]orps. . .  going to 
govern matters covered by this [conference] bill.'' Id. at 251 
(emphasis supplied).
    Moreover, in opining on the new, broader ``navigable 
waters'' definition in the CWA conference bill, Rep. Dingell 
recalled the identical concern that the House addressed in the 
RHA context--namely, that Federal authority over the Nation's 
waters needed to cover wholly intraState bodies that are part 
of a highway of commerce (although they are not themselves 
connected to a continuous, water-based channel of navigation). 
Again, he used the same reasoning, wording, and case law from 
the Government Operations Committee RHA report on the Lake 
Chelan situation:
    Although most interState commerce 150 years ago was 
accomplished on waterways, there is no requirement in the 
Constitution that the waterways must cross a State boundary in 
order to be within the interState commerce power of the Federal 
Government. Rather, it is enough that the waterway serve as a 
link in the chain of commerce among the States as it flows in 
the various channels of transportation--highways, railroads, 
air traffic, radio and postal communication, waterways, et 
cetera. The ``gist of the Federal test'' is the waterway's use 
``as a highway, not whether it is ``part of a navigable 
interState or international commercial highway.'' Utah v. 
United States, 403 U.S. 9, 11 (1971). . . .
    1 CWA Legislative History 250-51 (statement of Rep. 
Dingell) (emphasis supplied); compare to H.R. Rep. No. 92-1323, 
at 30 (discussed supra p. 6).
    The sentiments of Sen. Edmund Muskie (D-ME) echoed those of 
Rep. Dingell. He remarked that the conference bill's new 
definition of ``navigable waters'' should be ``given the 
broadest possible interpretation unencumbered by agency 
determinations,'' to keep with his intent that:
    [S]uch waters shall be considered to be navigable in fact 
when they form, in their ordinary condition by themselves or by 
uniting with other waters or other systems of transportation, 
such as highways or railroads, a continuing highway over which 
commerce is or may be carried on with other States or with 
foreign countries in the customary means of trade and travel in 
which commerce is conducted today. In such case the commerce on 
such waters would have a substantial economic effect on 
interState commerce.
    1 CWA Legislative History at 178 (statement of Sen. Muskie) 
(emphasis supplied).
    Accordingly, Rep. Dingell and Sen. Muskie certainly 
intended for the term ``navigable waters'' to mean something 
more than features presently navigable-in-fact. Appalachian 
Electric and similar cases allowed them to effectuate their 
intent. These decisions clarified that, consistent with 
Commerce Clause power, congressional authority over traditional 
navigable waters could extend to ``reasons unrelated to 
navigation.'' John F. Baughman, Balancing Commerce, Geography 
and History: Defining the Navigable Waters of the United 
States, 90 Mich. L. Rev. 1028, 1040 (1992). Furthermore:
    The Court [in Appalachian Electric] dropped the requirement 
that the waterway be navigable in its natural state. Rather, as 
long as a waterway could be made navigable through reasonable 
improvements, it would qualify as navigable. It is not even 
necessary that the improvements be made, or even authorized, 
just possible. The [C]ourt also endorsed the concept of 
`indelible navigability,' under which a waterway once found to 
be navigable in fact remains permanently navigable in law. . . 
. Finally, the Court examined the physical characteristics of 
the river itself to demonstrate its capacity to support 
navigation. Under the Appalachian Electric doctrine the 
definition of navigable waters is extremely broad. . . .
    Ibid (citations omitted and emphasis supplied). 
Accordingly, with the scope of traditional navigable waters now 
greatly enhanced, and with the Supreme Court's endorsement that 
Congress's authority over traditional navigable waters was 
plenary, regulation on a vastly expanded universe of waters 
could be justified by virtually any purpose, even if unrelated 
to navigation--such as environmental protection. This was what 
the CWA conferees had in mind when they wanted to give ``the 
broadest possible constitutional interpretation'' to the phrase 
``navigable waters.'' S. Rep. No. 92-1236, at 144 (1972), 
reprinted in CWA Legislative History, at 327. They accordingly 
defined ``navigable waters'' to mean ``the waters of the United 
States.''
    But by no means did they intend to cover all water ``in'' 
the United States, as S. 1870, the ``Clean Water Restoration 
Act of 2007,'' would do.\1\ The expansion of jurisdiction that 
the 1972 Congress had in mind pertained to intraState features 
like Lake Chelan, which where not themselves part of a 
continuous highway of water-based commerce but provided 
linkages to land-based channels like roads, railroads, and 
telegraph lines. Thus, when the 1972 CWA conferees stated their 
intent was to give ``navigable waters'' the ``broadest possible 
constitutional interpretation unencumbered by agency 
determinations,'' their context was the broadest possible 
authority over traditional navigable waters, insofar as they 
served as channels of interState commerce.
---------------------------------------------------------------------------
    \1\1 S. 1870 would re-define ``waters of the United States'' to 
mean ``all waters subject to the ebb and flow of the tide, the 
territorial seas, and all interState and intraState waters and their 
tributaries, including lakes, rivers, streams (including intermittent 
streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet 
meadows, playa lakes, natural ponds, and all impoundments of the 
foregoing, to the fullest extent that these waters, or activities 
affecting these waters, are subject to the legislative power of 
Congress under the Constitution.'' S. 1870,  4(3), lines 14-25 
(emphasis supplied).
---------------------------------------------------------------------------
    This is a key aspect of the Supreme Court's holding, almost 
30 years later, in SWANCC. In grounding the intent of the 1972 
legislature, the Court identified the CWA's constitutional 
basis as Congress's ``commerce power over navigation,'' 531 
U.S. at 165 n.2. The Court explained that, back in 1972, 
Congress intended to exercise ``its traditional jurisdiction 
over waters that were or had been navigable in fact or which 
could reasonably be so made.'' Id. at 172. Parsing through the 
CWA's legislative history shows that the SWANCC Court was 
faithful to that original intent.
    To conclude, the 1972 CWA significantly expanded Federal 
jurisdiction over water features. But that expansion solely 
pertained to the scope of traditional navigable waters, to 
encompass non-navigable features that affected navigation, or 
isolated intraState features that provided a link in the chain 
of commerce. There is no indication in the 1972 CWA's history 
that Congress intended to exponentially stretch Federal 
authority to the extremes contemplated in S. 1870. Congress's 
focus in 1972 was indeed to provide ``the broadest possible 
constitutional interpretation'' of traditional navigable 
waters, insofar as such bodies affect navigation or provide 
linkages to channels of interState commerce. However, there is 
simply no evidence that the CWA's founders sought to subject 
isolated ponds, erosional drainages, upland ditches, or the 
like, to Federal control.
    II. Questions of CWA Jurisdiction Have Always Been 
Complicated. They Were Confusing in the Era Before SWANCC, and 
They Remain Confusing Today.
    Advocates of S. 1870 seek to obtain the clarity they 
perceive existed from the era before the 2001 Supreme Court 
decision in Solid Waste Agency of Northern Cook County v. 
United States Army Corps of Eng'rs (SWANCC), 531 U.S. 159 
(2001). This myth must be dispelled. As the legal scholarship 
prior to SWANCC overwhelmingly shows, questions about the CWA's 
scope were as hotly contested then as they are today.\2\ An 
analysis of the case law bears out the CWA jurisdictional 
controversy between 1985 and 2001.
---------------------------------------------------------------------------
    \2\See, e.g., Michael C. Blumm and D. Bernhard Zaleha, Federal 
Wetlands Protection Under the Clean Water Act: Regulatory Ambivalence, 
Intergovernmental Tension, and a Call for Reform, 60 U. Colo. L. Rev. 
695, 713 (1989) (``[t]he issues of which waters and which activities 
are subject to [CWA] regulation have been at the heart of most of the 
controversy surrounding the program''); Stephen M. Johnson, Federal 
Regulation of Isolated Wetlands, 23 Envtl. L. 1, 42 (1993) (``the 
dispute regarding the Federal Government's jurisdiction to regulate 
isolated wetlands remains unresolved''); J. Blanding Holman, After 
United States v. Lopez: Can the Clean Water Act and the Endangered 
Species Act Survive Attack? 15 Va. Envtl. L.J. 139, 195 (1995) (``[t]he 
regulation of isolated wetlands under the CWA based on the migratory 
bird rule was on tenuous Commerce Clause grounds even before Lopez was 
decided in the spring of 1995); Deanne E. Parker, Will United States v. 
Lopez Substantially Affect Federal Constitutional Authority to Regulate 
Isolated Wetlands? 16 J. Energy Nat. Resources & Envtl. L. 453 (1996) 
(``[o]ne of the most controversial assertions of Federal jurisdiction 
is the regulation of isolated wetlands under the umbrella of the Clean 
Water Act''); Marni A. Gelb, Leslie Salt Co. v. United States: Have 
Migratory Birds Carried the Commerce Clause Across the Borders of 
Reason? 8 Vill. Envtl. L. J. 291 (1997) (Ninth Circuit decision on 
migratory bird rule ``exemplifies the controversy concerning the proper 
scope of the CWA's jurisdiction''); Vickie V. Sutton, Wetlands 
Protection--A Goal Without a Statute, 7 S.C. Envtl. L.J. 179, 204 (Fall 
1998) (discussing ``the need to find a genuine Constitutional grounding 
for the protection of wetlands, the Constitutional basis of wetlands 
regulation, and the conflicts with State property laws''); Jonathan H. 
Adler, Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce 
Clause Jurisprudence and the Limits of Federal Wetlands Regulation, 29 
Envtl. L. 1,4 (1999) (``[t]he Federal wetlands regulations promulgated 
under section 404 of the Clean Water Act have been one of the more 
contentious areas of Federal environmental policy for the past several 
years, spawning substantial litigation and political controversy'').
---------------------------------------------------------------------------
    A. Pre-SWANCC Cases.
    United States v. Riverside Bayview Homes, Inc., 474 U.S. 
121 (1985), sowed the seeds for the pre-SWANCC confusion. The 
Court decided that wetlands which ``actually abut[ted] on a 
navigable waterway'' were ``adjacent'' within Corps regulations 
and properly subject to CWA authority. Id. at 135. The Court 
specifically left open the question of whether the CWA covered 
``wetlands that are not adjacent to bodies of open water.'' Id. 
at 131, n. 8. Following Riverside Bayview, courts and 
stakeholders struggled with this unanswered question. Debate 
swirled around the statutory propriety and constitutional 
validity of the regulatory vehicles used by Federal agencies to 
extend their professed authority over isolated intraState 
waters--namely, the ``other waters'' regulation and the 
``migratory bird rule.''
    In defining ``the waters of the United States,'' Corps and 
EPA regulations cover: waters that are or could be used for 
navigation; tidal waters; interState waters; tributaries of 
jurisdictional waters; and wetlands adjacent to jurisdictional 
waters. 33 C.F.R.  328.3(a)(Corps); 40 C.F.R.  230.3(s)(EPA). 
They also profess to cover:
    All other waters such as intraState lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, 
wetlands, sloughs, prairie potholes, wet meadows, playa lakes, 
or natural ponds, the use, degradation or construction of which 
could affect interState commerce. . . .
    Id.  328.3(a)(iii)(Corps);  230.3(s)(iii)(EPA). This 
regulation remains on the agencies' books today.\3\ Further, in 
the preamble to 1986 CWA regulations, the agencies defined 
``other waters'' within (a)(iii) to include those waters:
---------------------------------------------------------------------------
    \3\ S. 1870 would essentially codify the (a)(iii) regulation. See 
supra n. 1 (nearly identical language of S. 1870's definition of 
``waters of the United States'' compared to (a)(iii) regulation). 
However, as will be discussed below, the U.S. Court of Appeals for the 
Fourth Circuit struck the (a)(iii) regulation as illegal because it 
presented serious constitutional questions as to its validity under the 
Commerce Clause. United States v. Wilson, 133 F.3d 251 (4th Cir. 1997).
---------------------------------------------------------------------------
    a. Which are or would be used as habitat by birds protected 
by migratory bird treaties; or
    b. Which are or would be used as habitat by other migratory 
birds which cross State lines. . . .
    51 Fed. Reg. 42,206, 41,217 (Nov. 13, 1986). Reading 
subsection (a)(iii) and the migratory bird rule conjunctively, 
the Corps and EPA deemed that a wetland (or ``other water'') 
had a sufficient effect on commerce if it could possibly be 
used by migratory birds crossing State lines. Accordingly, the 
migratory bird rule was ``a limiting rule with no limits.'' J. 
Blanding Holman, After United States v. Lopez: Can the Clean 
Water Act and the Endangered Species Act Survive Attack? 15 Va. 
Envtl. L.J. 139, 197 (1995). CWA control was thereby extended 
to ``other waters'' that were susceptible to possible bird 
use--and what backyard puddle, schoolyard field, or farm lot 
pond isn't subject to possible bird use? Indeed, under the 
Corps's delineation guidelines, an area can be completely dry 
at the surface for 365 days per year, year in and year out, and 
still qualify as a jurisdictional wetland. See Environmental 
Laboratory, Dep't of the Army, Technical Rep. Y-87-1, Corps of 
Engineers Wetland Delineation Manual 34-41 (Jan. 1987). Thus, 
before SWANCC, the migratory bird rule brought into Federal 
jurisdiction millions of shallow, damp low spots throughout the 
United States, because birds ``could'' use them.
    The infinite scope that the ``other waters'' regulation and 
the migratory bird rule attempted to achieve predictably 
rendered them targets for court challenges throughout the 
1990's--belying any claims of jurisdictional clarity before 
SWANCC. When the Corps applied the bird rule to assert 
jurisdiction over certain wetlands in the Commonwealth of 
Virginia, the landowner argued the rule was invalid. The U.S. 
Court of Appeals for the Fourth Circuit agreed, upholding a 
district court decision that the bird rule was illegal under 
the Administrative Procedure Act because it was a substantive 
rule that was never subject to notice and comment rulemaking 
proceedings. Tabb Lakes, Ltd. v. United States, 715 F. Supp. 
726 (E.D. Va. 1988), aff'd, 885 F.2d 866 (4th Cir. 1989). In 
response to Tabb Lakes, the Corps and EPA issued guidance that 
they ``intend to undertake as soon as possible an APA 
rulemaking process regarding jurisdiction over isolated 
waters.'' See U.S. EPA and U.S. Dep't of Army, ``Clean Water 
Act Section 404 Jurisdiction Over Isolated Waters in Light of 
Tabb Lakes v. United States'' (Jan. 24, 1990). Almost 18 years 
later, the agencies still have not initiated such a rulemaking.
    The Seventh Circuit seriously struggled with the bird rule 
in the decade before SWANCC. In Hoffman Homes, Inc. v. EPA, 961 
F.2d 1310 (1992), a home builder filled a 0.8 acre isolated, 
intrastate, bowl-shaped depression, without a permit. EPA 
deemed the feature a jurisdictional wetland. The agency 
presented no evidence that migratory birds or any other 
wildlife used the area, but it nonetheless issued a compliance 
order and required site restoration. After a lengthy 
evidentiary hearing, an administrative law judge decided EPA 
had no CWA authority over the isolated wetland because it had 
no effect on interState commerce. But then EPA's chief judicial 
officer reversed, imposing a $50,000 fine and deciding that the 
wetland had a ``minimal, potential effect'' on interState 
commerce because migratory birds could use the area. Id. at 
1312. Following these contradictory administrative challenges--
even EPA did not know how to treat isolated wetlands at this 
time--the courts became involved. The Seventh Circuit found 
``the Clean Water Act does not give the EPA the authority to 
regulate isolated wetlands. Isolated wetlands, unlike adjacent 
wetlands, have no hydrological connection to any waterbody.'' 
Id. at 1314. Moreover, the Seventh Circuit further decided that 
the isolated wetland was ``not within the reach of the Commerce 
Clause,'' and this was a ``second reason'' to reverse EPA. Id. 
at 1317. Because ``EPA ha[d] not even attempted to construct a 
theory of how filling [the wetland] affects interState 
commerce,'' application of the bird rule in this instance could 
not be sustained under the Commerce Clause: ``The idea that the 
potential presence of migrating birds itself affects commerce 
is. . .  far-fetched.'' Id. at 1320.
    EPA then petitioned for rehearing, and the Seventh Circuit 
vacated its prior decision with no explanation and a directive 
for the parties to explore settlement to moot the need for a 
court decision. Hoffman Homes, Inc. v. EPA, 975 F.2d 1554. 
Those discussions failed, and the case went back to the 
original panel for a new decision. This time, the Seventh 
Circuit flip-flopped on its policy decision but maintained its 
judgment against EPA. The court now decided that the migratory 
bird rule was consistent with the CWA and within Commerce 
Clause limits. Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 261 
(7th Cir. 1993). Thus, the same Seventh Circuit panel reached 
contradictory opinions on the migratory bird rule and its 
constitutional implications--in the same case and on the same 
set of facts--in under 18 months.
    A Ninth Circuit case from the same period wended a 
similarly tortured path through the judicial system. In Leslie 
Salt Co. v. United States, 700 F. Supp. 476 (N.D. Cal. 1989), 
the Corps mobilized the bird rule to assert CWA authority over 
calcium chloride pits at a salt mining site, which collected 
rainwater that migrating birds could possibly use. The district 
court stated its role was ``not to sit as a super-ecologist'' 
(id. at 478), and it decided that the pits did not fall within 
the (a)(iii) regulation: ``the mere ponding of water on 
otherwise dry land is not enough to convert that land into 
`other waters.' '' Id. at 485. On appeal, a 2-1 Ninth Circuit 
panel reversed, 896 F.2d 354, 360 (9th Cir. 1990). The court 
rendered the ``legal conclusion'' that the Commerce Clause 
could be satisfied upon a showing that migratory birds and one 
endangered species ``may have used the property.'' Id. at 360-
61. A dissent, however, decided that the pits were not ``other 
waters'' because ``there is nothing in the record to show that 
water flows directly or indirectly. . .  [from the pits] into 
another body of water.'' Id. at 361 (Rymer, J., dissenting). 
There was a remand back to the trial court (820 F. Supp. 478 
(N.D. Cal. 1992), followed by another appeal, where the Ninth 
Circuit decided its prior decision ``cannot be considered 
clearly erroneous''--hardly a ringing judicial endorsement that 
the Commerce Clause permitted regulation of any wet spot due to 
potential bird use. 55 F.3d 1388, 1396 (9th Cir. 1995). The 
Ninth Circuit admitted that the migratory bird rule ``certainly 
tests the limits of Congress's commerce powers and, some would 
argue, the bounds of reason.'' Id. But, ``while Cargill's 
arguments might well deserve closer consideration,'' the court 
had enough of the issue and refused to re-consider its prior 
decision. Id. Moreover, the Ninth Circuit dodged the conclusion 
reached by the Fourth Circuit in Tabb Lakes, as to whether the 
bird rule required public notice and comment proceedings. The 
court stated if that issue was submitted earlier in the 
proceedings, ``a much more detailed examination of the 
migratory bird rule's effect on agency decisionmaking might be 
in order.'' Id. at 1394.
    A request was then put to the Supreme Court to address the 
validity of the bird rule, but certiorari was denied. Cargill, 
Inc. v. United States, 516 U.S. 955 (2005). However, Justice 
Thomas issued a rare dissent from the denial of certiorari. In 
light of the Court's decision in United States v. Lopez, 514 
U.S. 549 (1995) from the immediately prior term, he expressed 
``serious doubts about the propriety of the Corps' assertion of 
jurisdiction'' based on migratory bird use. Cargill, 516 U.S. 
at 958 (Thomas, J. dissenting from cert. denial). Justice 
Thomas further questioned the validity of the (a)(iii) 
regulation, because ``[t]he `other waters' provision. . .  does 
not require an activity substantially affect interState 
commerce, only that the activity `could affect interState or 
foreign commerce.' '' Id. (original emphasis). All of this 
``stretches Congress' Commerce Clause powers beyond the 
breaking point.'' Id.
    It would take another 6 years before the high Court 
considered the merits of the migratory bird rule in SWANCC. In 
the interim, the Fourth Circuit widened the judicial divide on 
CWA authority. United States v. Wilson, 133 F.3d 251 (4th Cir. 
1997), struck the Corps's (a)(iii) regulation as illegal 
because it brushed against the Constitution's outer limits. The 
court found the ``other waters'' regulation ``is unauthorized 
by the Clean Water Act as limited by the Commerce Clause and 
therefore is invalid.'' Id. at 254:
    The [(a)(iii)] regulation requires neither that the 
regulated activity have a substantial effect on interState 
commerce, nor that the covered waters have any sort of nexus 
with navigable, or even interstate, waters. Were this 
regulation a statute, duly enacted by Congress, it would 
present serious constitutional difficulties, because, at least 
at first blush, it would appear to exceed congressional 
authority under the Commerce Clause. . . . [A]s a matter of 
statutory construction, one would expect that the phrase 
``waters of the United States'' when used to define the phrase 
``navigable waters'' refers to waters which, if not navigable 
in fact, are at least interState or closely related to 
navigable or interState waters.
    Id. at 257 (underscoring original; italics supplied). The 
Fourth Circuit further found that a jury instruction 
``intolerably stretche[d]'' CWA jurisdiction because it 
``included adjacent wetlands `even without a direct or indirect 
surface connection to other waters of the United States.' '' 
Id. at 258 (original emphasis). Following the Wilson decision, 
the Corps and EPA issued a memorandum stating that they 
intended to initiate a rulemaking on the (a)(iii) regulation. 
See U.S. EPA and U.S. Dept. of Army, ``Guidance for Corps and 
EPA Field Offices Regarding Clean Water Act Section 404 
Jurisdiction Over Isolated Waters in Light of United States v. 
James J. Wilson'' (May 29, 1998). Almost a decade later, the 
agencies have not commenced a rulemaking on the validity of the 
(a)(iii) regulation or their CWA authority to regulate isolated 
waters.
    Thus, the era of CWA jurisprudence leading up to SWANCC was 
most decidedly not clear. Then, as now, the courts struggled 
with questions regarding connections to interState waters, and 
there was no consensus on the required nexus between wetlands 
and traditional navigable waters. These very same issues are 
with us today, as stakeholders continue to consider the extent 
of CWA jurisdiction following SWANCC. As a congressional 
research report explains, ``[f]ederal regulation of isolated 
waters--nonnavigable, intraState waters lacking surface 
hydrological connections to navigable waters--plainly raises 
the issue of whether an adequate nexus with interState commerce 
is present.'' Robert Meltz, congressional Research Service, 
``Report for Congress--Constitutional Bounds on Congress' 
Ability to Protect the Environment,'' at 9 (RL 30670; updated 
Dec. 18, 2002), at 9. The argument that S. 1870 would afford 
clarity to CWA jurisdiction, the likes which have not been seen 
since SWANCC, is not convincing. S. 1870 would simply bring us 
back to the present.
    B. Solid Waste Agency of Northern Cook County
    In 2001, the Supreme Court decided SWANCC, 531 U.S. 159 
(2001). The case concerned whether CWA section 404(a) conferred 
Corps authority over isolated, seasonal ponds at an abandoned 
sand and gravel pit in suburban Chicago, because they were 
susceptible to migratory bird use. In briefing at the 
certiorari stage, the petitioners asked the Court to intervene 
to address the judicial confusion created by Tabb Lakes, 
Hoffman Homes, Leslie Salt and Wilson, as discussed above. The 
SWANCC Court itself recognized that it now had the opportunity 
to answer the unresolved and disputed question from Riverside 
Bayview, as to whether the CWA covered ``'wetlands that are not 
adjacent to bodes of open water. . . .'' Id. at 167-68 (citing 
Riverside Bayview, 474 U.S. at 131-132 n. 8).
    The Court answered, ``no.'' It identified the 
constitutional authority for the CWA as the ``commerce power 
over navigation,'' 531 U.S. at 165 n.2, and explained that 
Congress intended to exercise ``its traditional jurisdiction 
over waters that were or had been navigable in fact or which 
could reasonably be so made.'' Id. at 172. Former Chief Justice 
Rehnquist, writing for the majority, observed that the holding 
in Riverside Bayview ``was based in large measure on Congress' 
unequivocal acquiescence to, and approval of, the Corps' 
regulations interpreting the CWA to cover wetlands adjacent to 
navigable waters.'' SWANCC, 531 U.S. at 167. The majority thus 
rejected the Corps's assertion of jurisdiction because ``the 
text of the statute will not allow'' coverage of ponds that 
``are not adjacent to open water.'' 531 U.S. at 168 (original 
emphasis). The Court found `` 404(a) to be clear'' that non-
navigable isolated ponds fell outside the CWA's scope. Id. at 
172. Otherwise, the word ``navigable'' in the CWA would ``'not 
have any independent significance' '' and ``no effect 
whatever.'' Id. The majority reinforced the need for an 
``inseparable'' relationship between non-navigable and 
navigable features: ``It was the significant nexus between the 
wetlands and `navigable waters' that informed our reading of 
the CWA in Riverside Bayview Homes.'' Id. at 167 (emphasis 
added). Accordingly, finding no inseparable relationship 
between the non-navigable, isolated ponds at issue in SWANCC 
and a body of ``open water,'' the Court held that the Corps's 
claim of jurisdiction ``exceeds the authority granted to [the 
Corps] under section 404(a) of the CWA.'' Id. at 174. In the 
end, the Corps was unable to ``overcome[e] the plain text and 
import'' of the CWA, so its assertion of jurisdiction over 
isolated ponds received no deference. Id. at 170.
    SWANCC also raised the constitutional question regarding 
the bird rule's validity under the Commerce Clause, but the 
Court avoided it by invoking the ``clear statement'' rule. 
``This requirement stems from our prudential desire not to 
needlessly reach constitutional issues and our assumption that 
Congress does not casually authorize administrative agencies to 
interpret a statute to push the limit of congressional 
authority.'' Id. at 172-T3. Where an agency interprets a 
statute in a manner that ``invokes the outer limits of 
Congress's power'' or ``overrides. . .  [the] usual 
constitutional balance of Federal and State powers,'' the 
Supreme Court ``expect[s] a clear indication that Congress 
intended that result.'' Id. The majority found that the 
migratory bird rule was just such an interpretation that 
pressed against the outer boundaries of the Commerce Clause 
which, ``though broad, is not unlimited.'' Id. at 1T3 (citing 
United States v. Morrison, 529 U.S. 598 (2000); United States 
v. Lopez, 514 U.S. 549 (1995)). SWANCC found ``nothing 
approaching a clear statement from Congress that it intended  
404(a) to reach an abandoned sand and gravel pit. . . .'' Id at 
174. Furthermore, the clear statement requirement is 
``heightened'' where an agency interprets a statute in a manner 
that would ``alter[ ] the Federal-State framework by permitting 
Federal encroachment upon a traditional State power.'' Id. at 
1T3. The regulation of land and water use within a state's 
borders is a traditional State function, and the Court found 
that claims of ``Federal jurisdiction over ponds and mudflats 
falling within the `Migratory Bird Rule would result in a 
significant impingement'' of State prerogatives. Id. at 174 
(citing Hess v. Port Authority Trans-Hudson Corporation, 513 
U.S. 30, 44 (1994)). In the end, the Court held that the 
(a)(iii) regulation, ``as clarified and applied to petitioner's 
balefill site pursuant to the `Migratory Bird Rule'. . .  
exceeds the authority granted to respondents under  404(a) of 
the CWA.'' Id. at 174.
    Like any case, SWANCC did not resolve all of the pertinent 
statutory and constitutional questions implicated in the 
matter. And there has been some disagreement over the breadth 
of the Court's holding. Those advocating a narrow view State 
that the majority merely invalidated the bird rule and nothing 
more. However, much of the language in the Court's opinion goes 
beyond the bird rule, and instructs that all isolated, 
intraState waters are outside the CWA's scope. Indeed, the 
SWANCC dissenters adopted this broader view, reading the 
majority opinion as ``excising'' from the CWA ``intermittent 
rivers, streams, tributaries and perched wetlands that are not 
contiguous or adjacent to navigable waters.'' Id. at 189, 190 
n.14 (Stevens, J., dissenting). ``[D]epending on which part of 
the opinion one looks at,'' SWANCC held ``either that Congress 
never intended section 404 to extend to isolated waters at all, 
or that Congress never intended section 404 to extend to 
isolated waters solely on the basis of the migratory bird 
rule.'' Robert Meltz, congressional Research Service, ``Report 
for Congress--Constitutional Bounds on Congress' Ability to 
Protect the Environment,'' at 9 (RL 30670; updated Dec. 18, 
2002), at 10.
    In any event, SWANCC afforded much needed clarity to the 
confusing and contradictory case law that preceded it. At a 
minimum, the migratory bird rule--the jurisdictional modus 
operandi of the Corps and EPA throughout the 1990's--was 
declared illegal. The agencies could no longer base their 
jurisdictional determinations on it, and were forced to develop 
other theories that provide Federal jurisdiction over a body of 
water.


           iii. the 2006 rapanos decision has helped clarify
                            the cwa's scope.


    To summarize thus far, as the CWA entered its third decade, 
two Supreme Court decisions provided directives on the Act's 
scope. First, Riverside Bayview in 1985 ruled that wetlands, 
though non-navigable themselves, were subject to Corps and EPA 
jurisdiction if they actually abutted a traditional navigable 
waterway. In these circumstances, they were ``adjacent'' and 
appropriately within Federal power. Second, SWANCC in 2001 
decided an open question from Riverside Bayview, ruling that 
isolated, intraState waters fall outside the Act.
    Thus, on one end of the jurisdictional spectrum, abutting 
wetlands are ``in.'' On the other end of the spectrum, 
isolated, intraState features are ``out.'' This was the 
jurisprudential landscape after 2001. But after the migratory 
bird rule was declared illegal, the Federal agencies needed a 
new rule for jurisdiction. Through litigation briefing and not 
from any deliberative rulemaking or policy process, they 
developed ``the hydrologic connection theory.'' Like the bird 
rule before it, the hydrologic connection theory spawned much 
confusion and controversy in the courts.
    A. Pre-Rapanos Cases.
    Under the hydrologic connection theory, the Corps and EPA 
asserted CWA authority over non-navigable features simply if 
they had a possible aquatic link to jurisdictional waters. 
Cases abounded with similar fact patterns: wetlands lied next 
to an upland ditch, and water in that ditch flowed through a 
series of more non-navigable ditches, canals, and creeks, which 
ultimately connected to truly navigable waters miles away. The 
distant wetland would be deemed jurisdictional in either of two 
ways. First, the agencies would boldly claim that because of 
the hydrologic connection, the wetland was adjacent to the 
truly navigable water, no matter the distance between them. In 
the alternative, the agencies would assert that the non-
navigable drainage ditch was a tributary to the truly navigable 
water, and that the wetland was therefore adjacent to a 
tributary. In either case, the agencies declared that every 
inch along the watercourse was subject to CWA coverage, as they 
traced drops of water from one point to the next.
    United States v. Deaton, 332 F.3d 698 (4th Cir. 2003), 
cert. denied, 541 U.S. 972 (2004), exemplified the Corps's use 
of the hydrologic connection theory. The agency brought a civil 
action against the Deatons because they discharged fill without 
a section 404 permit, by digging a drainage ditch through 
wetlands on their property. That ditch drained into a rural 
roadside ditch fronting their parcel. The Corps claimed that 
the roadside ditch was a ``tributary'' to the navigable-in-fact 
Wicomico River, which lied eight miles away over a course 
punctuated by five culverts, three ponds, and five dams. They 
deemed the wetlands ``adjacent'' to the ditch ``tributary'' and 
were thus jurisdictional. Id. at 702-03. Nothing in the record 
showed that a single grain of sediment left the site and 
entered the roadside ditch, much less flowed downstream to 
reach a truly navigable water.
    The Fourth Circuit upheld the Corps's jurisdiction. 
Ignoring the ``clear statement'' rule (see supra p. 17), the 
court leapfrogged to the constitutional issue first. 
Downplaying the specific roadside ditch at issue, the court 
asked whether, categorically, non-navigable tributaries to 
navigable waters could be regulated under the Commerce Clause. 
Id. at 707-08. It reasoned that any pollutant in a non-
navigable tributary has the ``potential to move downstream'' 
and degrade navigable waters and, thus, the Corps's regulation 
of tributaries was constitutional. Id. at 709. Then the Fourth 
Circuit turned to the statutory question. It deferred to the 
agency's interpretation under the CWA that the roadside ditch 
was part of a ``tributary system, that is, all of the streams 
whose water eventually flows into navigable waters.'' Id. at 
710 (emphasis added). Because there was ``a'' remote nexus 
between the roadside ditch and the Wicomico River, the Fourth 
Circuit concluded that ``[t]he Act thus reaches to the roadside 
ditch and its adjacent wetlands.'' Id. at 712.
    The Fifth Circuit pointedly disagreed with Deaton. In In re 
Needham, 354 F.3d 340 (5th Cir. 2003), oil was pumped from a 
containment basin and spilled into a drainage ditch. The ditch 
flowed into Bayou Cutoff, which led to Bayou Folse, which was 
adjacent to Company Canal, ``an open body of navigable water.'' 
Id. at 346. Because oil residue was found 10-12 miles away in 
Bayou Folse, which flowed ``directly into'' the navigable-in-
fact Company Canal, the court found the spill ``implicated 
navigable waters and triggered Federal regulatory jurisdiction. 
. . .'' Id. at 347. It stressed there was a ``significant 
nexus'' between Bayou Folse and Company Canal. Id. However, the 
Fifth Circuit considered and rejected the government's argument 
that statutory ``navigable waters'' means ``all waters . . . 
that have any hydrological connection with `navigable water.' 
'' Needham, 354 F.3d at 345. The Needham court recognized that 
Deaton accepted ``this expansive interpretation'' (id.), but 
declared that theory ``unsustainable under SWANCC'' because 
``[t]he CWA and the [Oil Pollution Act] are not so broad as to 
permit the Federal Government to impose regulations over 
`tributaries' that are neither themselves navigable nor truly 
adjacent to navigable waters.'' Id. The court likewise held 
that ``the term `adjacent' cannot include every possible source 
of water that eventually flows into a navigable-in-fact 
waterway.'' Id. at 347. And it refused to defer to the 
hydrologic connection theory, because the position advanced by 
the government pushed ``to the outer limits of the Commerce 
Clause and raise[s] serious constitutional questions. . . .'' 
Id. at 345 n. 8.
    Just as birds might stop anywhere, all water must flow 
somewhere. Thus, the hydrologic connection theory proved just 
as limitless, and therefore controversial, as the migratory 
bird rule; both jurisdictional tests presupposed Federal power 
based on potential connections to traditional navigable waters 
and interState commerce. It is thus unsurprising that judicial 
debate was re-ignited during the ``hydrologic connection'' 
years. The stage was set for the Supreme Court to re-engage in 
Rapanos v. United States, 126 S.Ct 2208 (2006). Indeed, as 
shown below, what SWANCC was for the migratory bird rule, 
Rapanos became for the hydrologic connection theory.
    B. Rapanos and its Areas of Consensus.
    Rapanos concerned two consolidated cases: Rapanos v. United 
States, 376 F.3d 704 (6th Cir. 2004), and Carabell v. U.S. Army 
Corps of Eng'rs, 391 F.3d 704 (6th Cir. 2004). They both 
followed the same, familiar fact-pattern: wetlands miles away 
from traditional navigable waters, that drained through 
multiple ditches, culverts, and creeks, which eventually flowed 
to traditional navigable waters. In both matters, the Sixth 
Circuit upheld Corps determinations that wetlands, connected 
through an attenuated aquatic chain to navigable-in-fact 
bodies, were jurisdictional.
    The Court issued a 4-1-4 plurality opinion. Five of the 
Rapanos Justices concurred in the judgment that the Corps's 
assertion of jurisdiction under the hydrologic connection 
theory was impermissible, and they vacated the Sixth Circuits' 
decision affirming the agency's actions. See Rapanos, 126 S.Ct. 
at 2235 (Scalia, J., plurality); id. at 252 (Kennedy, J., 
concurrence). However, the Justices could not form a majority 
as to the proper test for CWA jurisdiction. Justice Scalia, 
writing for a plurality that included himself, Chief Justice 
Roberts, and Justices Thomas and Alito, decided that CWA 
coverage extended to ``only those relatively permanent, 
standing, or continuously flowing bodies of water `forming 
geographic features' that are described in ordinary parlance as 
`stream[s,]. . .  oceans, rivers, [and] lakes.'' Id. at 2225. 
The plurality also developed a jurisdictional rule for wetlands 
in particular: ``[O]nly 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.'' Id. at 2226 (original 
emphasis).
    Justice Kennedy, who concurred in the judgment, wrote 
separately for himself. He elevated the concept of 
``significant nexus,'' first used by the Court in SWANCC to 
describe the nature of the aquatic features in Riverside 
Bayview, to the appropriate test for jurisdiction: ``[W]etlands 
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.' '' Rapanos, 126 S.Ct. at 2248 (Kennedy, J., 
concurring; emphasis supplied). ``Consistent with SWANCC and 
Riverside Bayview and with the need to give the term 
`navigable' some meaning, the Corps' jurisdiction over wetlands 
depends on a significant nexus between the wetlands in question 
and navigable waters in the traditional sense.'' Id. at 2249 
(emphasis supplied.) Justice Stevens, writing in a dissent 
joined by Justices Breyer, Souter, and Ginsburg, would have 
accepted the hydrologic connection theory, upheld the Corps's 
exercise of jurisdiction, and affirmed the Sixth Circuit's 
decisions. Id. at 2252 (Stevens, J., dissenting).
    Some have maligned Rapanos because the Justices failed to 
reach a majority opinion that announced the ``correct'' test 
for CWA jurisdiction, talismanic and overarching for all cases. 
Such criticism is unjustified. The Supreme Court has never 
announced a definitive test for CWA jurisdiction; in Riverside 
Bayview we learned that ``actually abutting'' wetlands are 
covered, and in SWANCC we learned that isolated, intraState 
waters are not. But while neither opinion articulated an uber-
test for CWA jurisdiction, this does not diminish the important 
guidance they provided in ascertaining the Act's scope. The 
same holds true for Rapanos.
    Moreover, advocates for legislation like S. 1870 have urged 
that the appropriate response to Rapanos is simply to cast the 
broadest possible regulatory net and codify Federal power over 
all intraState waters. That response would be needlessly 
extreme. It ignores that the five concurring Justices reached 
important consensus on many issues. They re-confirmed Riverside 
Bayview, that jurisdiction categorically extends to adjacent 
wetlands that actually abut navigable-in-fact waters.\4\ They 
also re-confirmed SWANCC, that CWA jurisdiction cannot cover 
isolated aquatic features, at least to the extent where 
migratory bird use is offered to provide the requisite 
connection to interState commerce.\5\
---------------------------------------------------------------------------
    \4\ Justice Scalia: ``Riverside Bayview. . .  explicitly rejected. 
. .  case-by-case determinations of ecological significance for the 
jurisdictional question whether a wetland is covered, holding instead 
that all physically connected wetlands are covered.'' Rapanos v. United 
States, 126 S.Ct. 2208, 2233 (original emphasis). ``Since the wetlands 
at issue in Riverside Bayview actually abutted waters of the United 
States, the case could not possibly have held that `neighboring' 
wetlands came within the Corps' jurisdiction.'' Id. at 2226 n.10. 
Justice Kennedy: ``When the Corps seeks to regulate wetlands adjacent 
to navigable-in-fact waters, it may rely on adjacency to establish its 
jurisdiction. Absent more specific regulations, however, the Corps must 
establish a significant nexus on a case-by-case basis when it seeks to 
regulate wetlands based on adjacency to nonnavigable tributaries.'' Id. 
at 2249 (emphasis supplied).
    \5\ Justice Scalia: ``Isolated ponds were not `waters of the United 
States' in their own right [in SWANCC,] and presented no boundary-
drawing problem that would have justified the invocation of ecological 
factors to treat them as such.'' Id. at 2226. Because SWANCC excluded 
isolated ponds from CWA jurisdiction ``which, after all, might at least 
be described as `waters' in their own right,'' then ``a fortiori, 
isolated, swampy lands do not constitute `waters of the United States.' 
'' Id. at 2230 (original emphasis). Justice Kennedy: In SWANCC, the 
Corps ``assert[ed] jurisdiction pursuant to a regulation called the 
`Migratory Bird Rule'. . . . The Court rejected this theory.'' Id. at 
224-41.
---------------------------------------------------------------------------
    The most significant clarification that Rapanos provided 
was that the five Justices agreed CWA jurisdiction does not 
reach non-navigable features merely because they are 
hydrologically connected to downstream navigable-in-fact 
water.\6\ In short, the hydrologic connection theory was 
disapproved--just as the migratory bird rule was disapproved in 
SWANCC.
---------------------------------------------------------------------------
    \6\ Justice Scalia: Rejecting the Agencies' hydrologic connection 
theory in holding that the phrase ``the waters of the United States'' 
``cannot bear the expansive meaning that the Corps would give it.'' Id. 
at 2220. ``[R]elatively continuous flow is a necessary condition for 
qualification as a `water,' not an adequate condition.'' Id. at 2223 
n.7. Justice Kennedy: ``The Corps' theory of jurisdiction in these 
consolidated cases--adjacency to tributaries however remote and 
insubstantial--raises concerns that go beyond the holding of Riverside 
Bayview, and so the Corps' assertion of jurisdiction cannot rest on 
that case.'' Id. at 2250. ``[M]ere hydrologic connection should not 
suffice in all cases; the connection may be too insubstantial for the 
hydrologic linkage to establish the required nexus with navigable 
waters as traditionally understood.'' Id. at 2251.
---------------------------------------------------------------------------
    But there are other key areas of consensus as well. Review 
of Rapanos shows that five Justices would reach agreement on 
the following salient points:

    1. Agency rulemaking is needed to clarify the CWA's 
jurisdictional scope. Even dissenting Justice Breyer wrote 
separately to emphasize this point.

      Chief Justice Roberts: The Agencies would be ``afforded 
generous leeway'' if they conducted a rulemaking interpreting 
statutory ``navigable waters.'' Id. at 2235. ``[T]he Corps and 
EPA would have enjoyed plenty of room to operate in developing 
some notion of an outer bound to the reach of their 
authority.'' Id. at 2236 (original emphasis).
     Justice Breyer: The various Rapanos opinions, ``taken 
together, call for the Army Corps of Engineers to write new 
regulations, and speedily so.'' Id. at 2266.
     Justice Kennedy: ``Through regulations or adjudication, 
the Corps may choose to identify categories of tributaries 
that, due to their volume of flow (either annually or on 
average), their proximity to navigable waters, or other 
relevant considerations, are significant enough that wetlands 
adjacent to them are likely, in the majority of cases, to 
perform important functions for an aquatic ecosystem 
incorporating navigable waters.'' Id. at 2249.

    2. The Sixth Circuit decided the question of CWA 
jurisdiction wrongly in both Rapanos and Carabell.

      Justice Scalia: ``We vacate the judgments of the Sixth 
Circuit in both No. 04-1034 [Rapanos] and No. 04-1384 
[Carabell], and remand both cases for further proceedings.'' 
Id. at 2235.
      Justice Kennedy: ``In these consolidated cases I would 
vacate the judgments of the Court of Appeals and remand for 
consideration whether the specific wetlands at issue possess a 
significant nexus with navigable waters.'' Id. at 2252.

    3. The CWA's scope is not restricted to traditional 
navigable waters.

      Justice Scalia: ``The Act's term `navigable waters' 
includes something more than traditional navigable waters. . . 
.'' 126 S. Ct. at 2220. The Scalia plurality ``affirmatively 
reject[ed]'' an interpretation that the CWA ``includes only 
navigable-in-fact waters.'' Id. at 2231.
      Justice Kennedy: ``Congress' choice of words creates 
difficulties, for the Act contemplates regulation of certain 
`navigable waters'' that are not in fact navigable.'' Id. at 
2247.

    4. The word ``navigable,'' in the phrase ``navigable 
waters,'' has meaning.

      Justice Scalia: ``[T]he traditional term `navigable 
waters'. . .  carries some of its original substance. . . .'' 
Id. at 2222 (original emphasis).
      Justice Kennedy: ``[T]he dissent reads a central 
requirement out [of the CWA]--namely, the requirement that the 
word `navigable' in `navigable waters' be given some 
importance.'' Id. at 2247. ``Consistent with SWANCC and 
Riverside Bayview and with the need to give the term 
`navigable' some meaning, the Corps' jurisdiction over wetlands 
depends on a significant nexus between the wetlands in question 
and navigable waters in the traditional sense.'' Id. at 2249.

    5. A mere hydrological connection cannot provide the basis 
for CWA jurisdiction.

      Justice Scalia: Rejecting the Agencies' hydrologic 
connection theory in holding that the phrase ``the waters of 
the United States'' ``cannot bear the expansive meaning that 
the Corps would give it.'' Id. at 2220. ``[R]elatively 
continuous flow is a necessary condition for qualification as a 
`water,' not an adequate condition.'' Id. at 2223 n.7.
      Justice Kennedy: Criticizing the dissent because it 
``would permit Federal regulation whenever wetlands lie 
alongside a ditch or drain, however remote or insubstantial, 
that may flow into traditional navigable waters.'' Id. at 2247. 
``The Corps' theory of jurisdiction in these consolidated 
cases--adjacency to tributaries however remote and 
insubstantial--raises concerns that go beyond the holding of 
Riverside Bayview [which extended the CWA to encompass wetlands 
that actually abut traditionally navigable waters], and so the 
Corps' assertion of jurisdiction cannot rest on that case.'' 
Id. at 2250. ``[M]ere hydrologic connection should not suffice 
in all cases; the connection may be too insubstantial for the 
hydrologic linkage to establish the required nexus with 
navigable waters as traditionally understood.'' Id. at 2251.

    6. Hypothetical, speculative, insubstantial, or eventual 
water flows do not support CWA jurisdiction.

      Justice Scalia: ``[T]he phrase `the waters of the United 
States' includes only those relatively permanent, standing, or 
continuously flowing bodies of water `forming geographic 
features' that are described in ordinary parlance as 
`stream[s,]. . .  oceans, rivers, [and] lakes.'' Id. at 2225 
(emphasis supplied). ``[O]nly 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.'' Id. at 2226 (original 
emphasis).\7\
---------------------------------------------------------------------------
    \7\ For a wetland to be jurisdictional under the Scalia approach, 
the ``continuous surface connection'' he contemplated is not satisfied 
upon a mere running trickle to a body of water navigable in its own 
right; indeed, Scalia rejected the Corps's use of the ``mere hydrologic 
connection'' test. Rather, he makes clear that a ``continuous 
connection'' is one that implicates the difficult boundary-drawing 
question between land and water, of the sort that the Court addressed 
in Riverside Bayview. In this regard, the discussion of Scalia's 
methodology in United States v. Cundiff, 480 F.Supp.2d 940, 946-47 
(W.D. Ky. 2007) is instructive:
---------------------------------------------------------------------------
    In discussing the boundary drawing problem, the Rapanos 
plurality noted that in Riverside Bayview the Supreme Court had 
acknowledged that there was an inherent ambiguity in drawing 
the boundaries of any ``waters'': ``[T]he Corps must 
necessarily choose some point at which water ends and land 
begins. Our common experience tells us that this is often no 
easy task: the transition from water to solid ground is not 
necessarily or even typically an abrupt one. Rather, between 
open waters and dry land may lie shallows, marshes, mudflats, 
swamps, bogs-in short, a huge array of areas that are not 
wholly aquatic but nevertheless fall far short of being dry 
land. Where on this continuum to find the limit of `waters' is 
far from obvious.'' Rapanos, 126 S.Ct. at 2225 (quoting 
Riverside Bayview, 474 U.S. at 132, 106 S.Ct. 455.) According 
to the Rapanos plurality, because of this inherent ambiguity, 
the Supreme Court in Riverside Bayview ``held, the agency could 
reasonably conclude that a wetland that `adjoin[ed]' waters of 
the United States is itself a part of those waters.'' Id. 
(citing Riverside Bayview, 474 U.S. at 132, 135, & n. 9, 106 
S.Ct. 455).
      Justice Kennedy: ``[T]he dissent would permit Federal 
regulation whenever wetlands lie alongside a ditch or a drain, 
however remote or insubstantial, that may eventually flow into 
traditionally navigable waters. The deference owed to the 
Corps' interpretation of the statute does not extend so far.'' 
Id. at 2247. ``The Corps' theory of jurisdiction--adjacency to 
tributaries, however remote and insubstantial--raises concerns 
that go beyond the holding of Riverside Bayview; and so the 
Corps' assertion of jurisdiction cannot rest on that case.'' 
Id. at 2248 (emphasis supplied). ``When. . .  wetlands' effects 
on water quality are speculative or insubstantial, they fall 
outside the zone fairly encompassed by the statutory term 
`navigable waters.' '' Id. at 2248 (emphasis supplied). In 
remanding Carabell back to the Sixth Circuit, Justice Kennedy 
stated that ``[t]he conditional language in [the Corps's] 
assessments--`potential ability, `possible flooding'--could 
suggest an undue amount of speculation and a reviewing court 
must identify substantial evidence supporting the Corps' 
claims. . . .'' Id. at 2251 (Kennedy, J.). In Carabell, ``the 
Corps based its jurisdiction solely on the wetlands' adjacency 
to the ditch opposite the berm on the property's edge. . . . 
[M]ere adjacency to a tributary of this sort is insufficient; a 
similar ditch could just as well be located many miles away 
from any navigable-in-fact water and carry only insubstantial 
flow toward it.'' Id. at 2252 (emphasis supplied).

    7. Mere presence of an ordinary high water mark does not 
render a feature a jurisdictional ``tributary,'' or the 
wetlands next to such a feature jurisdictional ``adjacent 
wetlands.''
      Justice Kennedy: ``[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. . . . This 
standard presumably provides a rough measure of the volume and 
regularity of flow. [T]he breadth of this standard--which seems 
to leave wide room for regulation of drains, ditches, and 
streams remote from any navigable-in-fact water and carrying 
only minor water-volumes toward it--precludes 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.'' Id. at 2248-2249.

    8. CWA jurisdiction is not lost due to drought conditions.

      Justice Scalia: ``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.'' Id. at 2221 n.5.
    9. CWA jurisdiction is not lost simply because a waterbody 
is regularly wet during certain seasons and dry during others.
      Justice Scalia: Recognizing that the Los Angeles River 
would be jurisdictional under the CWA, and stating: ``We. . .  
do not necessarily exclude seasonal rivers, which contain 
continuous flow during some months of the year but no fly 
during dry months--such as the 290-day continuously flowing 
stream postulated by Justice STEVENS' dissent. . . .'' Id. at 
2221, n.5. ``[N]o one contends that Federal jurisdiction 
appears and evaporates along with water in such regularly dry 
channels.'' Id. at 2221, n.6.\8\
---------------------------------------------------------------------------
    \8\ These statements of the Scalia plurality were emphasized by the 
Ninth Circuit in United States v. Moses, 2007 WL 2215954 (9th Cir. Aug. 
3, 2007), at 6, to find that a creek that ``rises and becomes a 
rampaging torrent'' during times of runoff is covered by the CWA.
---------------------------------------------------------------------------
      Justice Kennedy: ``The Los Angeles River, for instance, 
ordinarily carries only a trickle of water and often looks more 
like a dry roadway than a river. . .  Yet it periodically 
releases water-volumes so powerful and destructive that it has 
been encased in concrete. . .  over a length of some 50 miles. 
. .  Though this particular waterway might satisfy the 
plurality's test, it is illustrative of what often-dry 
watercourses can become when rain waters flow.'' Id. at 2242 
(emphasis supplied).

    10. CWA jurisdiction can cover regular floods from 
waterbodies.

      Justice Scalia: In the statutory term ``the waters of 
the United States,'' the phrase `` `the waters' refers more 
narrowly to. . .  `the flowing or moving masses, as of waves or 
floods, making up such streams or bodies.' '' Id. at 2220. ``It 
seems to us wholly unreasonable to interpret the statute as 
regulating only `floods' and `inundations' rather than 
traditional waterways. . . .'' Id. at 2221, n.4. Thus, the 
plurality believed regular floodwaters from permanent rivers 
and lakes are encompassed within ``navigable waters.'' 
Importantly, however, the plurality also criticized Corps 
interpretations and case law concluding that lands within the 
100-year floodplain are included in ``the waters of the United 
States.'' Id. at 2218.
      Justice Kennedy: ``The term `waters' may mean `flood or 
inundation,'. . .  events that are impermanent by definition. . 
. .'' Id. at 2242. ``The Court in Riverside Bayview rejected 
the proposition that origination in flooding was necessary for 
jurisdiction over wetlands. It did not suggest that a flood-
based origin would not support jurisdiction; indeed it presumed 
the opposite. . . . [A] continuous connection is not necessary 
for moisture in wetlands to result from flooding--the 
connection might well exist only during floods.'' Id. at 2244.

    11. As a general matter ``navigable waters'' and ``point 
sources'' are not the same thing, and normally a feature cannot 
be both.

      Justice Scalia: ``Most significant of all, the CWA 
itself categorizes the channels and conduits that typically 
carry intermittent flows or water separately from `navigable 
waters,' by including them in the definition of `point source.' 
'' Id. at 2222. The CWA's definitions ``conceive of `point 
sources' and `navigable waters' as separate and distinct 
categories. The definition of `discharge' would make little 
sense if the two categories were significantly overlapping.'' 
Id. at 2223.
      Justice Kennedy: ``[E]ven were the statute read [as the 
plurality does] to require continuity of flow for navigable 
waters, certain waterbodies could conceivably constitute both a 
point source and a water.'' Id. at 2243 (emphasis supplied).
    Of course, all stakeholders would have benefited from an 
opinion in Rapanos that garnered a clear majority. However, 
proponents for legislative action in the 110th Congress ignore 
the important points of agreement among the five Justices, as 
outlined above--including the very first point enumerated 
(supra p. 23), where the Justices called for regulatory action. 
Not a single member of the Court thought the appropriate 
solution was for Congress to amend the CWA--much less to 
legislate a jurisdictional requirement to cover all intraState 
waters.
    C. Post-Rapanos Cases.
    The arc of judicial history interpreting the scope of 
statutory navigable waters is, by now, predictable: the Supreme 
Court issues an opinion on the meaning of ``the waters of the 
United States,'' which clarifies certain questions but leaves 
others unanswered, and the open issues are subsequently debated 
in the lower courts. The 1985 Riverside Bayview opinion ruled 
that actually abutting wetlands are jurisdictional, but did not 
resolve the issue of isolated waters. The lower courts wrestled 
with that topic, issued conflicting opinions, and then in 2001 
SWANCC decided that isolated waters are non-jurisdictional, at 
least insofar as the justification for regulating them is 
migratory bird use. But SWANCC did not address whether waters 
that are far away from traditional navigable waters could be 
regulated, if there is only a tenuous hydrological connection 
to navigable-in-fact features. Debate ensued in the lower 
courts on the hydrological connection issue, and in 2006, 
Rapanos showed that five Justices concurred that the hydrologic 
connection theory is not the appropriate test for CWA coverage.
    Accordingly, Rapanos fits the pattern going back over 20 
years, to Riverside Bayview in 1985. Now, in the post-Rapanos 
era, the lower courts are debating: Which opinion controls, the 
Scalia plurality or the Kennedy concurrence? Within the view of 
the Scalia plurality, what is a ``relatively permanent 
waterbody'' and when does a wetland have a ``relatively 
continuous surface connection'' to navigable-in-fact water? For 
purposes of Justice Kennedy's opinion, what does it mean for a 
wetland to have a ``significant nexus'' to a traditional 
navigable water?
    Since Rapanos was decided, the lower courts are divided as 
to whether the controlling test for CWA jurisdiction derives 
from the Scalia opinion, the Kennedy opinion, or both. In his 
Rapanos dissent, Justice Stevens maintained that either the 
plurality or the concurrence should control in a given case.\9\ 
Some lower courts have followed Justice Stevens' ``either/or'' 
view.\10\ Other courts have adopted the position that Justice 
Kennedy's ``significant nexus'' test is the sole determinant 
for CWA jurisdiction.\11\
---------------------------------------------------------------------------
    \9\ ``[W]hile 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.'' Rapanos, 126 S.Ct. at 2265 (Stevens, J. dissenting).
    \10\ See, e.g., United States v. Johnson, 467 F.3d 56, 60 (1st Cir. 
2006), reh'g and reh'g en banc denied (``We conclude that the United 
States may assert jurisdiction over the target sites if it meets either 
Justice Kennedy's legal standard or that of the plurality''); Simsbury-
Avon Preservation Soc'y, LLC v. Metacon Gun Club, 472 F.Supp.2d 219 
(D.Conn. 2007), appeal pending (2d Cir.) (``this Court will consider 
under both the plurality's and Justice Kennedy's standards the issue of 
whether the plaintiffs have demonstrated a genuine factual dispute 
about whether Metacon munitions are being discharged into the waters of 
the United States''); United States v. Cundiff, 480 F.Supp.2d 940, 944 
(W.D. Ky. 2007) (``After a review of the case law, the court adopts the 
First Circuit's approach and concludes that the United States may 
establish jurisdiction over the Cundiff site if it can meet either 
Justice Kennedy's or the plurality's standard as set forth in 
Rapanos''). Cf. United States v. Sea Bay Development Corp., 2007 WL 
1169188 at 3 (E.D. Va. Apr. 18, 2007) ( ``it is important to note'' 
that Justice Stevens's dissent said that ``navigable waters'' should be 
determined by either the Scalia plurality or the Kennedy concurrence).
    \11\ United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007) 
(``[W]e join the Seventh and Ninth Circuits' conclusion that Justice 
Kennedy's `significant nexus' test provides the governing rule of 
Rapanos''); Northern California River Watch v. Healdsburg, 496 F.3d 
993, 995 (9th Cir. 2007), cert. pet. filed, 76 USLW 3260 (Nov. 5, 2007, 
07-625) (``In a 4-4-1 decision, the controlling opinion is that of 
Justice Kennedy who said that to qualify as a navigable water under the 
CWA the body of water itself need not be continuously flowing, but that 
there must be a `significant nexus' to a waterway that is in fact 
navigable. Adjacency of wetlands to navigable waters alone is not 
sufficient''); United States v. Gerke Excavating, Inc., 464 F.3d 723, 
724 (7th Cir. 2006), cert. denied, 128 S.Ct 45 (2007) (``When a 
majority of the Supreme Court agrees only on the outcome of a case and 
not on the ground for that outcome, lower-court judges are to follow 
the narrowest ground to which a majority of the Justices would have 
assented. . . . In Rapanos, that is Justice Kennedy's ground'').
---------------------------------------------------------------------------
    While the courts differ on the controlling test for CWA 
jurisdiction, a significant pattern of consistency is 
definitely emerging in the post-Rapanos cases. Consistent with 
consensus points numbered 5 and 6 above (supra pp. 25-26), the 
lower courts are now taking a more thorough examination of the 
facts before them. In the cases before them, they are focusing 
on whether there is sufficient evidence of a close relationship 
between the non-navigable aquatic feature at issue and 
traditional navigable waters. The courts are largely in 
agreement in recognizing that proof of a tenuous and remote 
hydrologic connection is not sufficient; more is needed to 
invoke CWA jurisdiction. For example:

      In N. Cal. River Watch v. city of Healdsburg, 496 F.3d 
993 (9th Cir. 2007), the court delved deeply into the facts and 
found a significant nexus between a pond, its surrounding 
wetlands, and navigable-in-fact water. The trial court ``found 
that the concentrations of chloride in the groundwater between 
the Pond and the Russian River are substantially higher than in 
the surrounding area. Chloride, which already exists in the 
Pond due to naturally occurring salts, reaches the River in 
higher concentrations as a direct result of Healdsburg's 
discharge of sewage into the Pond. . . . At a monitoring well 
between the Pond and the River, the underground concentration 
is diluted to some 30 parts per million. Ultimately, a chloride 
concentration of 18 parts per million appears on the west side 
of the River. The district court thus found that chloride from 
the Pond over time makes its way to the River in higher 
concentrations than naturally occurring in the River. This 
finding was further supported by Dr. Larry Russell, one of 
River Watch's trial experts.'' Id. at 996-97.
      In San Francisco Baykeeper v. Cargill Salt Div., 481 
F.3d 700 (9th Cir. 2007), the court found there was not 
sufficient proof of a ``significant nexus'' to support CWA 
jurisdiction. ``By any permissible view of the evidence, the 
effect of Cargill's Pond on Mowry Slough is speculative or 
insubstantial; the Pond does not significantly affect the 
integrity of the Slough. First, there is no evidence that any 
water has ever flowed from the Pond to the Slough. One expert 
asked whether `given the right hydrology conditions,' water 
could flow from the Pond to the Slough, answered that `it is 
possible.' There is no evidence, however, that those `right 
hydrology conditions' have ever existed or were likely to 
exist. This testimony fits the definition of `speculative.' '' 
Id. at 708.
      In United States v. Robison, 505 F.3d 1208 (11th Cir. 
2007), the court remanded for a new trial because a jury 
instruction improperly allowed evidence of CWA jurisdiction 
upon a mere hydrologic connection. ``[A] `mere hydrologic 
connection' will not necessarily be enough to satisfy the 
`significant nexus' test. . . .The district court here did not 
mention the phrase `significant nexus' in its `navigable 
waters' instruction to the jury or advise the jury to consider 
the chemical, physical, or biological effect of Avondale Creek 
on the Black Warrior River.'' Id. at 1222. ``Here, the 
government failed to satisfy its burden. Although Wagoner (the 
EPA investigator) testified that in his opinion there is a 
continuous uninterrupted flow between Avondale Creek and the 
Black Warrior River, he did not testify as to any `significant 
nexus' between Avondale Creek and the Black Warrior River. The 
government did not present any evidence, through Wagoner or 
otherwise, about the possible chemical, physical, or biological 
effect that Avondale Creek may have on the Black Warrior River, 
and there was also no evidence presented of any actual harm 
suffered by the Black Warrior River.'' Id. at 1223.
      In Simsbury-Avon Preservation Soc'y, LLC v. Metacon Gun 
Club, Inc., 472 F.Supp.2d 219, 230 (D. Conn. 2007), appeal 
pending (2d Cir), the court found no CWA jurisdiction over 
vernal pools and surrounding wetlands. ``Plaintiffs' 
inconclusive water sampling data cannot buttress the rest of 
plaintiffs' record so as to demonstrate that a rational trier 
of fact could find the required substantial nexus. . . . [T]his 
is a case in which the `wetlands' effects on water quality are 
speculative or insubstantial, [thus] fall[ing] outside the zone 
fairly encompassed by the statutory term `navigable waters.' ''
      In Envt'l Prot. Ctr. v. Pac. Lumber Co., 2007 WL 43654 
(N.D. Cal. Jan. 8, 2007), at *14, another court emphasized the 
need to prove more than a mere hydrologic connection. ``A 
hydrologic connection without more will not comport with the 
Rapanos standard in this case. Because the evidence indicates 
that certain of the Class II and all of the Class III streams 
are intermittent or ephemeral watercourses, EPIC must 
demonstrate that these streams have some sort of significance 
for the water quality of Bear Creek. None of the evidence 
offered by EPIC--field observations, the GIS map, or expert 
testimony--address this part of the substantial nexus 
standard.''
      In United States v. Cundiff, 480 F.Supp.2d 940, 945 
(W.D. Ky. 2007), the government met its evidentiary burden to 
prove the existence of a significant nexus to traditional 
navigable waters. The government expert testified that ditching 
activity ``diminished the capacity of the wetlands in question 
to store water,'' and the resultant increases in frequency and 
extent of downstream flooding ``impact[s] navigation, crop 
production in bottomlands, downstream bank erosion, and 
sedimentation'' (emphasis supplied). Further, ``[w]hen the acid 
mine drainage and associated sediments move too quickly 
downstream. . .  there are direct and significant impacts to 
navigation (via sediment accumulation in the Green River. . . 
.'' (Emphasis supplied.)

    In summary, while issues are left to be resolved after 
Rapanos, the lower courts are solid on the point that the mere 
hydrologic connection theory is not the basis for CWA coverage. 
And, they are undertaking thorough record examinations of the 
evidence before them to determine if the requisite nexus exists 
between non-navigable features and traditional navigable 
waters. That some courts might find the required connection in 
certain cases, while others do not, is unsurprising. ``[E]ach 
determination as to navigability must stand on its own facts.'' 
United States v. Appalachian Power Co., 311 U.S. 377, 403 
(1940) (quoting United States v. Utah, 283 U.S. 64, 87 (1931)). 
Considering that the CWA imposes great intrusions into the uses 
of private property, and effects significant land use controls 
that are traditionally within the province of State and local 
governments, close judicial scrutiny of the proof offered by 
Federal regulators is a positive result generated by Rapanos. 
CWA law and policy only stand to gain as the agencies develop 
better factual evidence in the field to support CWA 
jurisdictional determinations.
    The agencies have already made important strides in this 
regard. Their post-Rapanos field guidance is the opening salvo 
in discussions that will continue on the appropriate 
evidentiary showing for CWA jurisdiction. See Headquarters 
Memorandum to EPA Regions and Corps of Engineers Field Offices, 
CWA Jurisdiction Following the U.S. Supreme Court Decision in 
Rapanos v. United States (2007), available at http://
www.usace.army.mil/cw/cecwo/reg/cwa--guide/app--a--rapanos--
guide.pdfThe public has been asked to provide input on the 
Rapanos guidance package, and comments are due on January 21, 
2008. This process must be given sufficient time to run its 
course.


                             iv. conclusion


    The entire history of the CWA, as it has been debated in 
Congress, implemented by the agencies, and considered in the 
courts, has been an effort to balance important public policy 
considerations within the framework of the Constitution and the 
principles of federalism. NAHB believes Congress must not 
expand the CWA's scope to cover all intraState waters for the 
following reasons:
    1. Such an approach would greatly disserve the original 
intent of the 1972 Act, which struck a reasonable balance 
between modernizing Federal power over traditional navigable 
waters and maintaining State oversight of intraState waters 
that have no demonstrable nexus to channels of interState 
commerce;
    2. A massive expansion of Federal control over all 
intraState waters raises serious constitutional questions. 
Certain legislative proposals pending before Congress would 
only resuscitate the very same constitutional debate that 
caused confusion in the courts and on the ground in the pre-
SWANCC years; and
    3. In the post-Rapanos era, the Federal agencies are 
finally starting to do the hard, factual work of evaluating 
evidence as to whether a particular non-navigable water feature 
has substantial connections to traditional navigable waters. 
Congress should allow this process to continue before seeking 
legislation.
    There is no doubt that wetlands and other non-navigable 
features serve important ecological and societal functions. 
Their protection is necessary and is provided for by a 
cooperative effort between the Federal Government and the 
individual states. CWA regulation cannot go to extreme lengths 
so as to subvert the Act's purpose to ``recognize, preserve, 
and protect the primary rights and responsibilities of States'' 
to control water resources and address water pollution within 
their borders. 33 U.S.C. at 1254(b) (emphasis supplied). With 
these considerations in mind, it would be highly controversial 
and constitutionally questionable for Congress to amend the CWA 
in a manner that protects all intraState waters. Such an 
approach would wander far astray from the 1972 Act's original 
intent. It would greatly undermine the careful balance among 
competing policies that Congress, the Supreme Court, and the 
Executive Agencies have been searching for in the 35 years 
since the CWA's enactment.
                                ------                                


         Responses by Duane Desiderio to Additional Questions 
                           from Senator Boxer

    Question 1. InsideEPA recently reported that the National 
Association of Home Builders requested to be allowed to bypass 
the jurisdictional step in the Clean Water Act permit process 
because, it said, the assessment process under Rapanos/Carabell 
could take regulators ``months or possibly even years to 
complete.'' Can you please explain in detail what difficulties 
and delays have been experienced by the Home Builders' 
Association members as a result of Rapanos/Carabell?
    Response. The following issues affecting home builders have 
become evident since the Supreme Court decided Rapanos:

     Jurisdictional determinations (JDs) and Corps Section 404 
permits are taking longer than ever;
     higher costs have resulted for those who submit JDs; and
     no quantified criteria or threshold requirements have 
been established for a significant nexus determination, 
required by the Rapanos Guidance issued by the Corps and EPA 
which is now subject to a notice and comment process.

    While there are difficulties and delays regarding JDs and 
permit issuance since Rapanos, NAHB recognizes that not a 
single Member of the Court called for congressional action to 
resolve debate around CWA jurisdiction over the scope of 
statutory ``navigable waters.'' Indeed, several Justices 
explicitly called upon the Corps and EPA to conduct rulemaking 
to determine the scope of their authority. See Desiderio 
Testimony at pp. 23-24. NAHB agrees that matters concerning 
interpretation of Rapanos are best left to the agencies. The 
notice and comment process on their joint Rapanos Guidance must 
be allowed to run its course and be followed by rulemaking 
proceedings. NAHB believes a rulemaking, rather than a 
legislative fix, is a more appropriate response to any delays.
     JDs and Permits are Taking Longer Than Ever. During his 
testimony before the House Transportation and Infrastructure 
Committee on October 18, 2007, Mr. John Woodley, Assistant 
Secretary of the Army for Civil Works, admitted that the Corps 
is taking longer to issue Section 404 permits because of the 
additional work for staff required by the new Guidance 
procedures. In addition, regulatory requirements at 33 CFR 
325.2(d)(3) provide that District engineers must make decisions 
on permit applications not later than 60 days after receipt of 
a complete application. In practice, the Corps Districts have 
often been unable to meet that deadline. Statistics published 
on the Corps website indicate that in 2003 the average permit 
decision took about 6 months. However, since the Guidance, 
permit delays have become worse. Some Districts are now 
informing applicants that their permits are likely to take a 
minimum of 6-12 months.
     Higher Costs Have Resulted for Those who Submit JDs 
Information garnered from NAHB's members, their consultants, 
and from comments already submitted to the Rapanos Guidance 
docket, shows that costs have increased for those applicants 
who fill out the JD forms. The escalation in costs is due to 
the increased information needed to fill out the forms, and to 
the increased time and attention required to ensure that the 
application continues to move through the permitting process 
and is not disregarded for other applications that may get 
favored treatment for a variety of reasons, such as not 
requiring a significant nexus decision.
     No Quantified Criteria or Threshold Requirements Have 
Been Established for a Significant Nexus Decision Based on 
Science Page 6, Part C of the JD Form lists four questions to 
be considered to establish a significant nexus connection:
     Does the tributary, in combination with its adjacent 
wetlands (if any), have the capacity to carry pollutants or 
flood waters to traditional navigable waters (TNWs), or to 
reduce the amount of pollutants or flood waters reaching a TNW?
     Does the tributary, in combination with its adjacent 
wetlands (if any), provide habitat and lifecycle support 
functions for fish and other species, such as feeding, nesting, 
spawning, or rearing young for species that are present in the 
TNW?
     Does the tributary, in combination with its adjacent 
wetlands (if any), have the capacity to transfer nutrients and 
organic carbon that support downstream foodwebs?
     Does the tributary, in combination with its adjacent 
wetlands (if any), have other relationships to the physical, 
chemical, or biological integrity of the TNW?

    The above questions are so subjective that they can be 
answered in the affirmative for virtually any wetland. 
Providing answers to these open-ended questions is burdensome, 
time consuming, and costly for NAHB's members. The agencies 
should resolve these problems as they work through their review 
of comments on the Rapanos Guidance. Again, NAHB believes the 
notice and comment process needs to run its course, followed by 
rulemaking proceedings; a legislative fix, is not an 
appropriate response to the delays.
    Question 2. You say in your testimony that the Home 
Builders' Association has been an advocate for the Clean Water 
Act since its inception. As you know, the purpose of the Act is 
to ``restore and maintain the chemical, physical and biological 
integrity of the Nation's waters.''
     If a wetland, intermittent stream or other water is 
functionally connected to a navigable water or a tributary, in 
other words, if pollution or destruction of the wetland or 
intermittent stream could harm the chemical, physical or 
biological integrity of the navigable water, does the Home 
Builders' Association agree that there should be protection 
under the Clean Water Act?
    Response. The question is unclear. The phrase 
``functionally connected'' has no well-accepted meaning.
    In any event, the question is premised on the phrase 
``could harm''--that is, whether pollution in a wetland or 
stream ``could harm'' a traditional navigable water. In the 
circumstance where impacts to an upstream aquatic feature 
might, potentially or hypothetically, harm a downstream 
traditionally navigable water, then under case holdings that 
upstream feature would not be covered by the Clean Water Act 
and would arguably exceed constitutional authority. For 
example, Justice Kennedy explained in Rapanos that, ``[w]hen 
wetlands' effects on water quality are speculative or 
insubstantial, they fall outside the zone fairly encompassed by 
the statutory term `navigable waters.' '' United States v. 
Rapanos, 126 S.Ct. 2208, 2248 (2006) (Kennedy, J., concurring). 
Similarly, the U.S. Court of Appeals for the Fourth Circuit 
struck regulations of the Corps that illegally based CWA 
coverage where destruction of ``other waters'' ``could affect'' 
interState commerce, because those regulations ``require[d] 
neither that the regulated activity have a substantial effect 
on interState commerce, nor that the covered water have any 
sort of nexus with navigable, or even interstate, waters'' 
(original emphasis). United States v. Wilson, 133 F.3d 251, 257 
(4th Cir. 1997). And the U.S. Court of Appeals for the Second 
Circuit has ruled that the ``Clean Water Act gives the EPA 
jurisdiction to regulate and control only actual discharges--
not potential discharges, and certainly not point sources 
themselves.'' Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 
505 (2d Cir. 2005) citing NRDC v. EPA, 859 F.2d 156, 170 (D.C. 
Cir. 1988) (original emphasis).
     Are there certain categories of wetlands, intermittent 
streams and other waters that the Home Builders' Association 
believes should not be protected by the Clean Water Act, even 
if that does result in harm to the chemical, physical or 
biological integrity of navigable waters and tributaries? If 
so, please list and describe in detail each category of water 
that in the Association's view should not be protected under 
the Act.

    Please see answer to question #3, below, which provides 
principles for determining the extent of CWA coverage.
     Consider the case where a certain type of water, such as 
a wetland, taken together with other similar wetlands, is 
important and necessary to protecting the integrity of a nearby 
water that is navigable under the traditional definition of 
that term. But assuming that such a wetland, considered 
individually, does not meet the Rapanos/Carabell test for Clean 
Water Act jurisdiction, is it the view of the Home Builders' 
Association that there should be no protection of that wetland 
under the Act? What positions have the Association's 
representatives taken on this issue in communications with the 
Corps of Engineers and/or the Environmental Protection Agency 
since the Rapanos/Carabell decision was issued?
    This question asks for an assumption that hypothetical 
wetlands ``do[ ] not meet the Rapanos/Carabell test for Clean 
Water Act jurisdiction.'' (Emphasis supplied.) However, a 
majority of Justices in Rapanos/Carabell failed to agree on an 
overarching, definitive test to determine whether particular 
aquatic features are covered by the CWA. Please see answer to 
question #3, below, which provides principles for determining 
the extent of CWA coverage.
    In any event, the question can be considered in light of 
the following statement from Justice Kennedy's opinion 
concurring in the Rapanos judgment:

    ``[W]etlands 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 statutory term.'' Rapanos, 126 S.Ct. at 2248 (Kennedy, J., 
concurring; emphasis supplied).

    Justice Kennedy stated that ``the wetlands,'' to be 
considered jurisdictional, must have a significant (not 
speculative or insubstantial) effect on traditional navigable 
waters. Accordingly, his statement does not justify categorical 
license for jurisdiction over all wetlands in a region; the 
focus must be on ``the'' wetlands at issue in a given case, to 
determine if that particular feature is jurisdictional.
    Further instruction is needed to explain the phrase 
``similarly situated.'' If that particular wetland alone does 
not have a significant effect on traditional navigable waters, 
then Justice Kennedy stated it could be combined only with 
other ``similarly situated'' wetlands. The phrase ``similarly 
situated'' has no reference point in any CWA case or 
regulation. While ``similarly situated'' is commonly used in 
cases concerning the Equal Protection Clause of the Fourteenth 
Amendment, it wholly lacks any well-accepted or understood 
meaning in the ``navigable waters'' context. Wetlands serve 
different functions and values, within and among varying 
watersheds and locations. Indeed, not all wetlands provide 
equivalent protection in terms of pollutant trapping, flood 
control, runoff storage, and habitat. Thus, before any wetland 
combination could occur to determine if particular wetlands are 
subject to the Act's coverage, the agencies would need to 
define ``similarly situated'' through rulemaking.
    NAHB has taken no official position on the language quoted 
above from Justice Kennedy's opinion, and it has not offered 
any official interpretation to either the Corps or EPA.

    Question 3. Does the Home Builders' Association agree with 
the jurisdictional test stated by Justice Scalia in the 
Rapanos/Carabell case, as described at page 21 in your 
testimony, or does it support some other test, and if so what 
is that?
    Response. Although Rapanos announced no over-arching, 
definitive test to determine whether particular aquatic 
features are covered by the CWA., NAHB believes that the 
jurisdictional test articulated by Justice Scalia's plurality 
opinion must be considered and applied on a case-by-case basis 
because it has been adopted by four members of the Supreme 
Court. Likewise, Justice Kennedy's ``significant nexus'' test 
must be considered and applied on a case-by-case basis--
although it cannot be considered a holding from Rapanos because 
only one member of the Court adopted it.
    NAHB believes that the following principles are applicable 
to determine if a particular aquatic feature is subject to CWA 
coverage:

     Traditional navigable waters, and wetlands that actually 
abut them, are covered by the CWA. (See Desiderio Testimony at 
pp. 11-12.)
     Isolated, intrastate, non-navigable water features are 
not covered by the CWA. (See Desiderio Testimony at pp. 16-18.)
     Non-traditional navigable waterbodies that are 
intrastate, navigable-in-fact, and part of a chain of 
interState commerce, even though they are not part of a 
continuous navigable highway of commerce, are covered by the 
CWA (even though they are not traditional navigable waters). 
(See Desiderio Testimony at pp. 6-10.)
     A mere hydrological connection between an aquatic feature 
and a traditional navigable water does not render that feature 
a ``navigable water'' for purposes of the CWA. (See Desiderio 
Testimony at p 25.)
     Aquatic features that have only a hypothetical, 
speculative, insubstantial, or eventual connection to 
traditional navigable waters are not ``navigable waters'' for 
purposes of the CWA. (See Desiderio Testimony at pp. 25-26.)
     Mere presence of an ordinary high water mark does not 
render a feature a jurisdictional ``tributary,'' or the 
wetlands next to such a feature jurisdictional ``adjacent 
wetlands.'' (See Desiderio Testimony at p. 27.)
     CWA jurisdiction is not lost due to drought conditions. 
(See Desiderio Testimony at p. 27.)
     CWA jurisdiction is not lost simply because a waterbody 
is wet during certain seasons and dry during others. (See 
Desiderio Testimony at pp. 27-28.)
     CWA jurisdiction can cover regular floods from 
waterbodies. (See Desiderio Testimony at p. 28.)
     Point sources, such as ditches, storm detention ponds, 
and municipal separate storm sewer systems and components 
thereof, are not ``navigable waters'' for purposes of the CWA. 
However, discharges of pollutants from such features require 
CWA permits. (See Desiderio Testimony at pp. 28-29.)
                                ------                                


         Responses by Duane Desiderio to Additional Questions 
                          from Senator Inhofe

    Question 1. Some have argued today that there is a point in 
the regulatory history to which we could return when 
jurisdiction was clear and agreed upon. Do you know of any such 
time that Congress could use as a benchmark should we decide 
that a legislative fix is in order?
    Response. In terms of the regulatory history of the Clean 
Water Act since its enactment in 1972, the answer is ``no.'' In 
terms of Federal regulation generally over water features, the 
answer is ``yes.'' Before the CWA's enactment in 1972, it was 
relatively clear that Federal jurisdiction over water features 
extended only so far to reach traditional navigable waters as 
outlined by The Daniel Ball, 77 U.S. 557 (1871), and as 
modified by United States v. Appalachian Elec. Power Co., 311 
U.S. 377 (1940) and other cases. Please see Desiderio Testimony 
pp. 4-5 for a discussion of these cases.

    Question 2. In your written statement, you discuss the 1997 
Wilson decision which preceded the Supreme Court's SWANCC 
decision. In the Fourth Circuit's decision, the Court found 
that the Corps' ``other waters'' regulation is unauthorized by 
the Clean Water Act as limited by the Commerce Clause. Does 
this decision provide us any insights as to what a Court might 
do were legislation passed that strikes the Commerce Clause as 
the basis behind congressional authority under the Clean Water 
Act?
    Response. Yes, the Wilson decision does provide insight 
into a court's reaction into such a piece of legislation. 
Wilson struck the Corps's (a)(iii) regulation, because it 
purported to regulate ``other waters'' which, if degraded, 
``could affect'' interState commerce. The Fourth Circuit 
declared that regulation illegal because it ``require[d] 
neither that the regulated activity have a substantial effect 
on interState commerce, nor that the covered water have any 
sort of nexus with navigable, or even interstate, waters.'' 
Wilson, 133 F.3d at 257. Legislation that would purport to 
codify the ``could affect'' regulations would encounter the 
same constitutional questions. Please see Desiderio Testimony 
pp. 15-16 for a discussion of Wilson.

    Question 3. Can you describe for the Committee what actions 
a homebuilder might take to protect local drinking water 
supplies during construction?
    Response. The Environmental Protection Agency (``EPA'') has 
determined that discharges from residential construction 
activities ``consist predominantly of conventional 
pollutants''--namely, sediment. EPA has formally determined 
that toxics are not pollutants of concern from construction and 
development activities. Thus, the agency has removed the 
construction industry from its congressionally required list of 
industries that discharge toxic and non-conventional pollutants 
in non-trivial amounts. See 69 Fed. Reg. 53,705, 53,718 (Sept. 
2, 2004); 71 Fed. Reg. 76,644, 76,664-65 (Dec. 21, 2006).
    As to sediment, home builders undertake myriad measures 
under Federal, state, and local law--often duplicative and 
sometimes contradictory--to reduce erosion and retain 
stormwater onsite. They undertake these requirements regardless 
of whether drinking water supplies might be affected. The 
following is a brief summary of requirements that derive from 
the Federal CWA.
    During construction activity, EPA's implementing 
regulations under the National Pollutant Discharge Elimination 
System (``NPDES'') require home builders to obtain permit 
coverage for stormwater discharges. Under EPA's stormwater 
Phase I and Phase II rules, any residential construction site 
in the country that is one acre or larger in size is subject to 
permitting requirements; even single lots, in subdivisions one 
acre or larger, must satisfy NPDES controls or state-equivalent 
measures approved by EPA. Before securing Section 402 permit 
coverage a house a homebuilder must complete a Storm Water 
Pollution Prevention Plan (``SWPPP''). A SWPPP lays out the 
specific pollution control practices that will be implemented 
onsite to safeguard the environment during construction. A 
SWPPP must accompany the request for coverage under a 
construction general permit (CGP). The relevant permitting 
agency, which may be the EPA, a state, a tribe, or a 
municipality, must review and approve the SWPPP before 
construction may begin.
    The SWPPP must not only identify all potential sources of 
pollution to storm water discharges from the construction site, 
but also identify Best Management Practices (``BMPs'') the 
homebuilder will use to reduce pollutants in stormwater 
discharges to ensure CGP compliance. Examples of controls that 
must be addressed in the SWPPP include descriptions of 
temporary and permanent stabilization practices (e.g., seeding 
of vegetation, geotextiles, vegetative buffer strips, and 
preservation of trees); and structures that divert flows of 
storm water or treat storm water onsite (e.g., construction 
entrance pads, vehicle washing to maintain sediment onsite, 
silt fences, inlet protection, sediment traps, and sediment 
basins). The SWPPP must also contain a regular inspection and 
maintenance schedule.
    Drinking water supplies are protected by more stringent 
State or local ordinances or regulations. For example, building 
and site-development codes often impose additional erosion and 
sediment control BMPs on the homebuilder during construction. 
Land-use controls are also used to ensure that planned 
development will not compromise drinking water quality or 
groundwater discharge. States authorized to implement the Safe 
Drinking Water Act within their jurisdictions may also imposed 
additional barriers against sediment pollution through source 
water protection measures and additional onsite inspections. If 
there is an existing pollution problem with one or more 
pollutants affecting the quality of the local drinking water 
supplies, a Total Maximum Daily Load (TMDL) will specify waste 
load and load allocations for all pollution sources located on 
the stream or lake covered by the TMDL. In any case, all 
environmental requirements including any additional measures 
required to protect drinking water supplies must be addressed 
in the SWPPP and be approved by the permitting agency before 
construction may begin.

    Senator Boxer. Thank you very much.
    And our next speaker is George J. Mannina, Jr., attorney at 
law, O'Connor and Hannan, LLP. Welcome, sir.

STATEMENT OF GEORGE J. MANNINA, JR., ATTORNEY AT LAW, O'CONNOR 
                        AND HANNAN, LLP

    Mr. Mannina. Thank you, Madam Chairwoman and distinguished 
members of the Committee. Thank you for allowing me to appear 
before you today. I hope that the observations I might offer 
will be constructive to you as you chart your course for the 
future.
    At the outset, let me say that there always has been and 
will be confusion about what is a jurisdictional water of the 
United States. Areas that were not jurisdictional in 1975 
became jurisdictional through regulatory changes in 1977. Other 
changes were made in 1982 and 1986, bringing still other areas 
into the jurisdictional reach of the Clean Water Act, all 
absent any change in the legislation from the Congress.
    Similarly, if you ask the question, what areas are 
wetlands, you would receive a different answer, depending upon 
what year you asked that question. Recently, the Government 
Accountability Office said that the Corps' district offices, 
all bound by the same set of regulations, are in fact using 
different standards to determine what is or is not subject to 
the jurisdiction of the Clean Water Act. And to digress for a 
minute, curiously, in 13 of the 16 Corps districts which the 
GAO surveyed, GAO found there was no written guidance by which 
the public could determine the standards being employed by the 
Corps to make these jurisdictional decisions.
    I think you ladies and gentlemen of this committee and this 
Congress have a choice. You are at a crossroad as to which 
direction to go. You can take one direction and follow in the 
steps of your predecessors, Senators like Mr. Muskie and Mr. 
Bentsen, who grounded the Act in navigability. The Supreme 
Court has said that has some limits to it, but that was the 
wisdom of the Congress through all these years.
    Alternatively, you could remove navigability from the Act 
and reach a far larger set of waters. There are some issues 
that you may wish to consider with respect to that. 
Specifically, let me recall the SWANCC case. The waters on the 
SWANCC site, and I litigated the SWANCC case, so I am familiar 
with this, those waters were left over from strip mining. They 
were isolated ruts and trenches that filled with rain water. 
The Corps of Engineers said that they were not wetlands, they 
had no hydrological connection with any other water. The only 
basis for jurisdiction was the presence of migratory birds.
    If your purpose is to protect every wet area in the United 
States, then overturning SWANCC will get you there. If your 
purpose is to stay with the concept of navigability as your 
predecessors did, then you choose a different direction. I have 
heard it said that it would be simpler to return to the pre-
SWANCC era. I am not certain that is exactly correct. In the 
first instance, you would still have before you the issues 
identified in the 2004 GAO report about the Corps district 
offices employing different standards in applying the same 
regulations.
    But in one respect it might be easier. The Government 
Accountability Office asked the Corps why they were using 
different standards, and the Corps people said, according to 
GAO, that we are truly, for the first time, wrestling with how 
to apply the regulations. Pre-SWANCC, virtually every area was 
jurisdictional because virtually every wet area could be 
subject to use by migratory birds. That made jurisdictional 
decisions somewhat easier.
    If you return to the pre-SWANCC era and resurrect the 
migratory bird rule, you will be making those jurisdictional 
decisions easier because there will be a much larger set of 
areas subject to the jurisdiction. But that is your choice, and 
I would be more than happy to answer any questions that you 
might have.
    Thank you.
    [The prepared statement of Mr. Mannina follows:]

       Statement of George J. Mannina, Jr\1\., Attorney at Law, 
                        O'Connor and Hannan, LLP
---------------------------------------------------------------------------

    \1\ Mr. Mannina is a senior partner in the environmental law 
practice of O'Connor & Hannan, LLP and was retained by the Solid Waste 
Agency of Northern Cook County (``SWANCC'') in challenging the 
jurisdiction of the Corps of Engineers under the Clean Water Act in the 
case which became Solid Waste Agency of Northern Cook County v. U.S. 
Army Corps of Engineers, 531 U.S. 159 (2001) (``SWANCC'').
---------------------------------------------------------------------------
    Madam Chairwoman and distinguished members of the 
Committee, I am pleased to have the opportunity to appear 
before you. As this is an oversight hearing, it is not my 
purpose to suggest or recommend a course of action for this 
Committee. Instead, I will offer commentary on the State of the 
law which I hope will be constructive as you and your 
colleagues determine the appropriate course of action regarding 
whether and how to amend the Clean Water Act.
    It may be helpful at the outset to recognize that there is, 
and always has been, uncertainty regarding what waters are 
jurisdictional under the Clean Water Act. Although Congress has 
never changed the definition of the term ``navigable waters,'' 
the Corps of Engineers (``Corps'') and the Environmental 
Protection Agency (``EPA'') have, over the years, employed 
different regulatory definitions of what is a navigable water 
subject to the Clean Water Act. What was not jurisdictional in 
1975 might have become jurisdictional in 1977, 1982, or 1986.
    Not only has the regulatory definition of what is a 
jurisdictional navigable water changed, but the answer to the 
question ``what is a wetland'' has been different depending on 
what year the question was asked. Complicating the problem from 
the public's perspective is that as recently as 2004, the 
General Accounting Office (``GAO'') reported that different 
Corps District Offices, all of which were bound by the same 
regulations and the same Wetlands Delineation Manual, were 
applying these documents very differently in determining what 
is a navigable water. What is an adjacent wetland in one Corps 
District might not be in another. What is a tributary in one 
District is not in another. GAO also reports that in 13 of the 
16 District Offices it surveyed, there are no written standards 
the pubic can consult to understand the criteria used to 
determine Clean Water Act jurisdiction. It is no wonder the 
public is often confused.
    I have heard it said that if we return to a simpler time, 
the era before Solid Waste Agency of Northern Cook County v. 
U.S. Army Corps of Engineers was decided, then this uncertainty 
would disappear because, in that era, everyone knew what was 
jurisdictional. I believe the issue is far more complex. That 
said, in one respect, returning to the pre-SWANCC era and 
resurrecting the Migratory Bird Rule might be easier. GAO, in 
its 2004 review of Clean Water Act jurisdictional 
decisionmaking, noted that jurisdictional decisions were easier 
pre-SWANCC because ``nearly all waters and wetlands in the 
United States were potentially jurisdictional'' under the 
Migratory Bird Rule. Thus, as GAO reports, in the pre-SWANCC 
era there was hardly an area which could not be jurisdictional 
because there was hardly a wet area which could not be used by 
birds. Generally, this made jurisdictional decisions easier.
    However, resurrecting the Migratory Bird Rule will not 
necessarily end the jurisdictional debate. It would still leave 
uncertain issues such as what constitutes the ordinary high 
water mark of an area for jurisdictional purposes, are 
submerged drainage tiles a tributary, and how far can an 
insolated water be from a navigable-in-fact water and still be 
jurisdictional.
    Returning to the pre-SWANCC era is also likely to resurrect 
constitutional questions that will need to be resolved by the 
Supreme Court regarding whether exercising Clean Water Act 
jurisdiction based on a migratory bird rule violates the 
Commerce Clause of the Constitution or unconstitutionally 
infringes on the balance of State and Federal powers regarding 
land management processes. I recognize strong arguments can be 
mustered on both sides of the constitutional debate and I do 
not pretend to be wise enough to predict what the Supreme Court 
will do. I only know that when these issues were presented in 
the SWANCC case, the Court said there were ``significant 
constitutional questions'' raised by the Migratory Bird Rule.
    With that introduction, I would like to trace for the 
Committee the history of the regulatory interpretations given 
the term ``navigable waters,'' including the origins of the 
Migratory Bird Rule, explain the history of wetlands 
delineation procedures, review the 2004 GAO Report which 
addresses Corps' jurisdictional practices, and suggest a few 
issues for your consideration.


             i. overview of clean water act jurisdictional 
                         regulations until 1986


    The history of what constitutes a jurisdictional water 
under the Clean Water Act has been evolutionary. Although 
Congress has not changed the basic statutory provisions which 
define ``navigable waters'' as ``waters of the United States,'' 
the manner in which the Corps and EPA have interpreted the 
jurisdictional reach of the Clean Water Act has changed over 
time. The Supreme Court traced part of this evolution in United 
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123-124 
(1985). Initially, the Corps interpreted the Clean Water Act as 
embracing no more than navigable waters and their adjuncts. See 
Permits for Activities in Navigable Waters or Ocean Waters, 39 
Fed. Reg. 12115 (1974). After a judicial challenge to that 
definition, the Corps issued new regulations in 1975 redefining 
the term ``waters of the United States'' to also include 
tributaries of navigable-in-fact waters as well as interState 
waters and their tributaries and non-navigable intraState 
waters whose use could affect interState commerce. See 40 Fed. 
Reg. 31320 (1975).
    In 1977, the Corps further revised its regulations, 
codifying the 1975 interim regulations as final regulations, 
creating the nationwide Permit program, and making regulatory 
changes by doing things such as eliminating the reference to 
the standard that wetlands needed to be periodically inundated, 
adding a definition of what constituted an ``adjacent'' 
wetland, and making clear that wetlands included swamps, bogs, 
and marshes. See 42 Fed. Reg. 37122, 37126-30 (1977).
    In 1982 and various times thereafter, the Corps has changed 
the regulations. Some of the changes were technical and some, 
such as the Migratory Bird Rule, were significant. All of these 
changes regarding what is a ``navigable water'' have occurred 
without any definitional changes being adopted by Congress.


                 ii. history of the migratory bird rule


    In 1985, 13 years after the Clean Water Act was passed, the 
Corps determined that the use of isolated waters by migratory 
birds could provide a sufficient interState commerce connection 
to support Clean Water Act jurisdiction. This one action 
brought millions of acres under Clean Water Act jurisdiction.
    Despite the significant regulatory impact of the Migratory 
Bird Rule, it was not adopted using the traditional 
Administrative Procedure Act public notice and comment 
rulemaking procedures as had been the case up to that time 
under the Clean Water Act. Instead, the Migratory Bird Rule was 
born on November 8, 1985 through an unpublished memorandum 
issued to Corps District Offices by Brigadier General Patrick 
J. Kelly.\2\ The change was prompted by a request from Senator 
George Mitchell during a Section 404 Oversight Hearing before 
the Committee on Environment and Public Works on July 15, 1985 
that this matter be considered.\3\
---------------------------------------------------------------------------
    \2\ Memorandum to Corps District Offices from General Patrick 
Kelly, Deputy Director of Civil Water, November 8, 1985.
    \3\ At the Oversight Hearing, Senator Mitchell asked Richard 
Sanderson, EPA's Deputy Assistant Administrator for External Affairs, 
to confer with EPA's General Counsel concerning the use or potential 
use of an area by migratory birds or endangered species as a basis for 
Clean Water Act jurisdiction. In response, the EPA's General Counsel, 
Francis Blake, wrote a memorandum stating jurisdiction may be invoked 
if waters are used or could be used by migratory birds or endangered 
species. Brigadier General Kelly's memorandum was distributed to inform 
Corps District Offices of Mr. Blake's conclusion.
---------------------------------------------------------------------------
    The public was not advised of the Corps' rule change until 
1 year after it was adopted. The notice to the public came in 
the preamble to new regulations issued under the Clean Water 
Act. See 51 Fed. Reg. 41206, 41217 (1986). In the preamble to 
the new regulations, the Corps commented that the requisite 
link with interState commerce for Clean Water Act jurisdiction 
may be satisfied by showing the presence of waters which ``are 
or would be used as habitat'' by migratory birds or endangered 
species. Notably, the Corps' preamble comment was not included 
in the actual text of the final regulations.
    In considering what the public was told about this new 
policy, it is significant that the public notice of the Corps' 
new policy states the jurisdictional standard is whether the 
area contains waters which ``are or would be used'' as habitat 
by migratory birds. In contrast, Brigadier General Kelly's 
unpublished Memorandum to Corps offices directed the Corps to 
declare an area jurisdictional if it contains waters which 
``are or could be used'' as habitat by migratory birds. 
``Would'' is defined as expressing ``habitual action.'' 
Webster's New World Dictionary (2d Ed.). ``Could'' is defined 
as ``to be able.'' Id. The Corps advised the public the 
standard was ``would be used'' when, in fact, the Corps was 
employing a different ``could be used'' standard to decide 
Clean Water Act jurisdiction.


         iii. does the term ``navigable waters'' have meaning?


    Under section 404, the Corps may regulate discharges into 
``navigable waters'' which are defined as ``waters of the 
United States.'' 33 U.S.C. 1362(7); 33 C.F.R. 328.3. In 
considering the meaning of these words, the Supreme Court said 
Congress chose the concept of navigability to anchor the Act 
and ``it is one thing to give a word limited effect and quite 
another to give it no effect whatever.'' SWANCC, 531 U.S. at 
172. One question this Committee may wish to consider as you 
debate the future of the Clean Water Act is what did your 
predecessors intend by using the term ``navigable waters.''
    A. The 1972 Legislative History of the Term ``Navigable 
Waters''
    In choosing the term ``navigable waters'' to define Corps 
jurisdiction under the Clean Water Act, Congress selected a 
term with a clear historical meaning which did not include all 
wet areas of the United States. In 1871, the Supreme Court 
defined ``navigable waters'' as those waterways that:

    are used or are susceptible of being used, in their 
ordinary condition, as highways for commerce, over which trade 
and travel are or may be conducted in the customary modes of 
trade and travel on water.
    The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1871). 
However, this definition was viewed as too narrow to achieve 
Congress' purposes under the Clean Water Act.
    Congressional debate preceding enactment of the Clean Water 
Act demonstrates Congress was grappling with the challenge of 
designing an effective scheme to end the pollution of our 
Nation's waters.\4\ Given that goal, a program which only 
regulated discharges into traditional navigable waters such as 
rivers would be a futile exercise if discharges into connected 
tributaries and estuaries were not also regulated.
---------------------------------------------------------------------------
    \4\ This debate is reflected in the declaration of goals and policy 
in the Clean Water Act which states:
---------------------------------------------------------------------------
    The objective of this [Act] is to restore and maintain the 
chemical, physical, and biological integrity of the Nation's 
waters. In order to achieve this objective it is hereby 
declared that . . .
    (1) it is the national goal that the discharge of 
pollutants into navigable waters be eliminated by 1985;
    (2) it is the national goal that wherever attainable, an 
interim goal of water quality which provides for the protection 
and propagation of fish, shellfish, and wildlife and provides 
for recreation in and on water be achieved by July 1, 1983;
    (3) it is the national policy that the discharge of toxic 
pollutants in toxic amounts be prohibited. . . .
    33 U.S.C. 1251(a).
    Although Congress wanted to go beyond the 1871 definition 
of navigability, Congress was clear that the Act was anchored 
by the concept of navigability. Congress intended that there be 
a dividing line between what was navigable and what was not and 
some areas were to be outside Corps jurisdiction. Much of the 
congressional debate focused on identifying that dividing line.
    1. The Committee Reports
    The Senate Committee Report explained congressional intent 
regarding the Act's jurisdictional reach as follows:

    The control strategy extends to navigable waters. The 
definition of this term means the navigable waters of the 
United States, portions thereof, tributaries thereof, and 
includes the territorial seas and the Great Lakes. . . . Water 
moves in hydrological cycles and it is essential that the 
discharge of pollutants be controlled at the source. Therefore, 
reference to the control requirements must be made to the 
navigable waters, portions thereof, and their tributaries.
    S. Rep. No. 414, 92d Cong., 2d Sess., 77 (1972), reprinted 
in A Legislative History of the Water Pollution Control Act 
Amendments of 1972 (``Legislative History''), Volume II, at 
1495. The Senate wanted to extend the concept of navigability 
as far as the tributaries of navigable waters which could 
contribute harmful pollutants to navigable rivers and streams.
    Like the Senate, the House grounded the Act's 
jurisdictional reach in the concept of ``navigable waters.'' 
The House also sought to go beyond the 1871 definition but, 
like the Senate, stopped short of saying all waters were 
jurisdictional. The House Committee Report stated:

    One term that the Committee was reluctant to define was the 
term ``navigable waters.'' The reluctance was based on the fear 
that any interpretation would be read too narrowly. However, 
this is not the Committee's intent. The Committee fully intends 
that the term ``navigable waters'' be given the broadest 
possible constitutional interpretation. . . .
    H. Rept. No. 911, 92d Cong., 2d Sess., 137 (1972), 
reprinted in Legislative History, Volume II, at 818.
    The tension between not wanting to be restricted by the 
1871 definition of navigability, not being overbroad, but 
addressing the policy issue of water pollution is reflected in 
these reports. Congress did not need to be so vague if Congress 
wanted to ignore the concept, and limits, of navigability. 
Simple words would have sufficed to achieve that end. Instead, 
Congress stayed with the historical concept of navigability but 
sought through the explanation of congressional intent to 
extend its scope to include waters, such as non-navigable 
tributaries, which could contribute pollutants to traditionally 
navigable waters.
    2. The floor Debate
    The floor debates reflect the same tension in finding the 
dividing line between what is included in the Clean Water Act 
and what is not. In discussing the Conference Report, Senator 
Muskie, the floor manager for the Conference Report and one of 
the conferees, stated:
    One matter of importance throughout the legislation is the 
meaning of the term ``navigable waters of the United States.''
    The conference agreement does not define the term. The 
Conferees fully intend that the term ``navigable waters'' be 
given the broadest possible constitutional interpretation 
unencumbered by agency determinations which have been made or 
may be made for administrative purposes.
    Based on the history of consideration of this legislation, 
it is obvious that its provisions and the extent of application 
should be construed broadly. It is intended that the term 
``navigable waters'' include all water 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 by uniting 
with other waters or other systems of transportation, such as 
highways or railroads, a continuing highway over which commerce 
is or may be carried on with other States or with foreign 
countries in the customary means of trade and travel in which 
commerce is conducted today. In such cases the commerce on such 
waters would have a substantial economic effect on interState 
commerce.
    Legislative History, Volume I, at 178. Thus, previous 
agency determinations of navigability ``made for administrative 
purposes'' which had excluded non-navigable tributaries were 
not to be used. Instead, the Act's jurisdictional reach was to 
be grounded in the concept of navigation modified so as to 
include connected tributaries and other waterways such as 
intraState lakes which were part of the interState ``highway 
over which commerce is or may be carried. . . .'' Id.
    Congressman Dingell, the floor manager in the House and 
also a conferee, gave a similarly detailed discussion of the 
intended meaning of the term ``navigable waters'' during House 
consideration of the Conference Report. Congressman Dingell 
stated:

    The conference bill defines the term ``navigable waters'' 
broadly for water quality purposes. It means all ``the waters 
of the United States'' in a geographical sense. It does not 
mean ``navigable waters of the United States'' in the technical 
sense as we sometimes see in some laws.
    The new and broader definition is in line with more recent 
judicial opinions which have substantially expanded that 
limited view of navigability derived from the Daniel Ball case 
(77 U.S. 557, 563)--to include waterways which would be 
``susceptible of being used with reasonable improvement,'' as 
well as those waterways which include sections presently 
obstructed by falls, rapids, sand bars, currents, floating 
debris, et cetera, United States v. Utah, 283 U.S. 64 (1931); 
United States v. Appalachian Electric Power Co., 311 U.S. 377, 
407-410, 416, (1940); Wisconsin Public Service Corp. v. Federal 
Power Commission, 147 F.2d 743 (CA 7, 1945); cert. denied, 325 
U.S. 880; Wisconsin v. Federal Power Commission, 214 F.2d 334 
(CA 7, 1954) cert. denied, 348 U.S. 883 (1954); Namekagon Hydro 
Co. v. Federal Power Commission, 216 F.2d 509 (CA 7, 1954); 
Puente de Reynos, S.A. v. city of McAllen, 357 F.2d 43, 50-51 
(CA 5, 1966); Rochester Gas and Electric Corp. v. Federal Power 
Commission, 344 F.2d 594 (CA 2, 1965); The Montello, 87 U.S. 
(20 Wall.) 430, 441-42 (1874); Economy Light & Power v. United 
States, 256 U.S. 113 (1921).
    The U.S. Constitution contains no mention of navigable 
waters. The authority of Congress over navigable waters is 
based on the Constitution's grant to Congress of ``Power To 
regulate commerce with Foreign Nations and among the several 
states'' (art. I, sec. 8, clause 3). Gibbons v. Ogden, 22 U.S. 
(9 Wheat.) 1 (1824). Although most interState commerce 150 
years ago was accomplished on waterways, there is no 
requirement in the Constitution that the waterway must cross a 
State boundary in order to be within the interState commerce 
power of the Federal Government. Rather, it is enough that the 
waterway serves as a link in the chain of commerce among the 
States as it flows in the various channels of transportation--
highways, railroads, air traffic, radio and postal 
communication, waterways, et cetera. The ``gist of the Federal 
test'' is the waterway's use ``as a highway,'' not whether it 
is ``part of a navigable interState or international commercial 
highway.'' Utah v. United States, 403 U.S. 9, 11 (1971); U.S. 
v. Underwood, 4 ERC 1305, 1309 (D.C., MD Fla., Tampa Div., June 
8, 1972).
    Thus, this new definition clearly encompasses all water 
bodies, including main streams and their tributaries, for water 
quality purposes. No longer are the old, narrow definitions of 
navigability, as determined by the Corps of Engineers, going to 
govern matters covered by this bill.
    Legislative History, Volume I, at 250.
    Like Senator Muskie, Congressman Dingell did not want to be 
bound by the traditional ``narrow definitions of navigability'' 
which excluded tributaries and waters which were no longer 
navigable because of obstructions. Like his Senate counterpart, 
Congressman Dingell wanted to reach waters serving ``as a 
highway.'' Id. In fact, a review of the cases cited by 
Congressman Dingell as demonstrating the proper scope of the 
term ``navigable waters'' reveals that each involved a body of 
water that was used or could be used as a ``link in the chain 
of commerce among the States.'' Id. Each case involved actual 
navigation, past, present or future, and most of the cases 
focused on waters that once were navigable for waterborne 
commerce but were no longer because of obstructions.\5\ The Act 
was to be anchored in the concept of navigation for commerce.
---------------------------------------------------------------------------
    \5\ The Montello, 87 U.S. (20 Wall.) 430 (1874) (navigable waters 
to include all waters capable of use for waterborne commerce); Economy 
Light & Power Company v. United States, 256 U.S. 113 (1920) (all waters 
that had been previously used for waterborne interState commerce); 
United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940) 
(all waterways that could be made navigable ``with reasonable 
improvements''); Utah v. United States, 403 U.S. 9 (1971) (all waters 
that serve as a link in the chain of commerce in any states, a chain 
that could include other modes of commerce as well); United States v. 
Utah, 283 U.S. 64 (1931) (absence of waterborne commerce was not 
determinative of navigability if the river would be used for transport 
if obstructions were removed); Wisconsin Public Service Corp. v. 
Federal Power Commission, 147 F.2d 743 (7th Cir. 1945), cert. denied, 
325 U.S. 880 (1945) (river that was used to float logs is navigable 
even if otherwise obstructed by falling rapids and sandbars); Wisconsin 
v. Federal Power Commission, 214 F.2d 334 (7th Cir. 1954), cert. 
denied, 348 U.S. 883 (1954) (damming a river which could still be used 
for transport does not make the river non-navigable); Namekagon Hydro 
Co. v. Federal Power Commission, 216 F.2d 509 (7th Cir. 1954) (river a 
navigable water citing Wisconsin v. Federal Power Commission); Puente 
de Reynosa, S.A. v. city of McAllen, 357 F.2d 43 (5th Cir. 1966) (prior 
actual navigation raises a presumption of potential navigation with 
reasonable improvements); Rochester Gas and Electric Corp. v. Federal 
Power Commission, 344 F.2d 594 (2d Cir. 1965), cert. denied, 382 U.S. 
832 (1965) (previously navigable river should still be so considered if 
it could be used for navigation in the future with reasonable 
improvements); United States v. Underwood, 344 F. Supp. 486 (M.D. Fla. 
1972) (waterway which can be made available for navigation by 
reasonable improvement is navigable.)
---------------------------------------------------------------------------
    The legislative history of the Clean Water Act in 1972 does 
not indicate that the Act was intended to reach all waters of 
the United States divorced from the concept of navigability. 
Rather, the jurisdictional reach of the Act was based on the 
concept of navigability, in Congressman Dingell's words, ``as 
it flows in the various channels of transportation.'' Id.
    In considering congressional intent, the Corps has 
recognized the limiting effect of navigability stating the Act 
does not cover all wet areas. See, e.g., 45 Fed. Reg. 33290, 
33398 (1980) (``small, isolated wet areas may not be waters of 
the United States. . . . Including an `exemption' for such 
areas might create the erroneous impression that, but for the 
exception . . . each puddle and damp spot would need a permit. 
. . .''); Memorandum in Support of Federal Defendants' Motion 
to Dismiss or in the Alternative for Summary Judgment and in 
Opposition to Plaintiffs' Motion for Partial Summary Judgment 
at 50, National Wildlife Federation v. Laubscher, 662 F. Supp. 
548 (S.D. Tex. 1987) (No. G-86-37) (``Congress did not 
automatically include every waterbody, however isolated, within 
the coverage of the Act.''). Similarly, a detailed review of 
the 1972 legislative history conducted by the Justice 
Department revealed no statement or comment to the effect that 
the Clean Water Act was intended to reach waters unconnected to 
waterborne commerce and the preservation of water quality. 
Respondent's [EPA] Petition for Rehearing and En Banc 
Reconsideration, Hoffman Homes, Inc. v. Environmental 
Protection Agency, 975 F.2d 1554 (7th Cir. 1992).
    B. The Corps' Interpretation of congressional Intent and 
the 1977 Amendments to the Clean Water Act
    As noted above, subsequent to passage of the Act in 1972, 
the Corps defined the term ``navigable waters'' to essentially 
parallel the Supreme Court's 1871 definition. This regulation 
was challenged and the court held Congress did not intend the 
term ``navigable waters'' to be ``limited to the traditional 
tests of navigability.'' Natural Resources Defense Council, 
Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975). The 
Corps was ordered to publish new regulations.
    In response, the Corps issued interim final regulations 
that covered:

    (1) all navigable coastal waters;
    (2) all coastal wetlands, mudflats, swamps and similar 
areas that are contiguous or adjacent to other navigable 
waters;
    (3) rivers, lakes, streams and artificial water bodies that 
are navigable;
    (4) artificially created channels and canals used for 
recreation or navigation that are connected to navigable 
waters;
    (5) tributaries of navigable waters;
    (6) interState waters;
    (7) intraState lakes, rivers and streams used (a) by 
interState travelers, (b) for removal of fish sold in 
interState commerce, (c) for industrial purposes by industries 
in interState commerce, and (d) in the production of 
agricultural commodities sold in interState commerce;
    (8) freshwater wetlands contiguous or adjacent to other 
navigable waters; and
    (9) other waters necessary for the protection of water 
quality such as intermittent rivers, streams, tributaries and 
perched wetlands that are not contiguous or adjacent to 
navigable waters.
    40 Fed. Reg. 31321, 31324 (1975).
    These regulations generated a firestorm of comment. 
Immediately, efforts were made in the Congress to restrict the 
Corps' jurisdiction under the new regulations.
    On June 3, 1976, the House passed the Wright Amendment 
restricting the Corps' jurisdiction to traditionally navigable 
waters and adjacent wetlands. 122 Cong. Rec. 16565 (1976).\6\ 
The Senate passed S. 2710 which included the Baker-Randolph 
Amendment that defined the term ``navigable waters'' to 
restrict the Corps.\7\ The two bills had numerous provisions 
and the two chambers were unable to resolve their differences 
before Congress adjourned. However, as to the term ``navigable 
waters,'' the House and the Senate were of one mind. The Corps 
was to be restricted to waters that had been, were, or could be 
used for navigation to transport commerce and to adjacent 
wetlands. The Corps' efforts to reach beyond these limits were 
rejected.
---------------------------------------------------------------------------
    \6\ The Wright Amendment to H.R. 9560 provided: The term 
``navigable waters'' . . . shall mean all 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. . . . 122 Cong. Rec. 16552 (1976). The Wright Amendment also 
defined the term ``adjacent wetlands'' as wetlands adjacent or 
contiguous to navigable waters. Id.
    \7\ The Baker-Randolph Amendment provided:
---------------------------------------------------------------------------
    [T]he jurisdiction of the Secretary of the Army shall be 
limited to those portions of the navigable waters (1) that are 
subject to the ebb and flow of the tide shoreward to their mean 
high water mark (mean higher high mark on the Pacific coast), 
and (2) that have been used, are now used, or are susceptible 
to use as a means to transport interState commerce, up to the 
head of their navigation, and (3) that are contiguous or 
adjacent wetlands, marshes, shallows, swamps, mudflats, and 
similar areas.
    122 Cong. Rec. 28778 (1976).
    In the next Congress, the House passed H.R. 3199, the 
Federal Water Pollution Control Act Amendments of 1977, with a 
provision defining the term navigable waters that was identical 
to the Wright Amendment from the previous Congress. 123 Cong. 
Rec. 10434 (1977). S. 1952, introduced by Senator Muskie, did 
not change the definition of ``navigable waters'' but did 
exempt from Section 404 certain activities such as normal 
farming, ranching, and silviculture.
    Although the Senate bill did not change the definition of 
``navigable waters,'' the debate makes it clear that no one 
supported the Corps' expanded definition of its jurisdiction. 
Senator Muskie stated:

    [N]o Member of the Senate, so far as I know, defends 
Section 404. The Senator knows that I vigorously opposed the 
interpretation of Section 404 which the Corps of Engineers 
undertook to implement. . . . So the contest is really not 
between those who defend Section 404 and those who object to it 
but rather it is a competition between different methods of 
dealing with the problems created by the Corps' interpretation 
of Section 404.
    A Legislative History of the Clean Water Act of 1977, A 
Continuation of the Legislative History of the Federal Water 
Pollution Control Act (1978) (also the ``Legislative 
History''), Volume IV, at 903.
    Senator Bentsen replied:

    I would say to the Senator from Maine that I think that is 
a fair statement. . . . We are left with a scope of 
jurisdiction as defined by the courts, a jurisdiction that runs 
counter to the original intent of the legislation as passed by 
Congress.
    Id. at 903.
    Senator Domenici stated:

    I think we have an opportunity here in the Senate to undo 
something that has grown up that we really never intended, and 
not to continue to ignore the fact that we never intended under 
Section 404 that the Corps of Engineers be involved in the 
daily lives of our farmers, realtors, people involved in 
forestry, anyone that is moving a little bit of earth anywhere 
in this country that might have an impact on navigable streams. 
We just did not intend that.
    Id. at 924.
    Senator Tower stated:

    [L]ast year, as in this session of the 95th Congress, I 
introduced an amendment aimed at diminishing the control which 
the Corps of Engineers has acquired through judicial 
interpretation in the courts. . . . It is imperative that we 
make clear the terminology and bring it in line with the 
original intent of navigable waters.
    Id. at 930.
    Senator Dole stated:

    [I]t is the mechanism and the extent of jurisdiction 
reflected in the administration of Section 404 that has been 
justifiably challenged. It is time that congressional intent is 
clarified.
    Id. at 935.
    Senator Hansen stated:

    It is my belief that the adoption of this amendment would 
return the Federal Water Pollution Control Act to the State 
originally intended by Members of this Congress when the matter 
came before us in 1972.
    Id. at 940.
    Senator Muskie summed it up stating:

    There is not a Senator on the floor, including the Senator 
who is speaking, who supports Section 404 as it has been 
interpreted and implemented by the Corps of Engineers. . . . 
Now, what the committee bill does is very simple. It undertakes 
to continue the Corps' traditional jurisdiction exercised since 
the Refuse Act of 1899 and before.
    It was under that jurisdiction that the Corps for all these 
decades has policed and monitored and approved dredging in the 
waterways of our country and disposed of the dredged spoil 
wherever it chose without any consideration for the 
environmental values concerned or the damage that was done 
because of that insensitivity.
    For the purpose of disciplining the Corps in that respect, 
Section 404 was enacted into law in 1972. The Corps proceeded 
to take that section and, by its interpretation, expand it far 
beyond any intent of the Congress so that it found itself 
threatening regulation in areas of the country which the Corps 
had never imagined it had any jurisdiction over.
    Id. at 947-948.
    All this over a regulation which clearly reached isolated 
waters such as intermittent rivers, streams, tributaries and 
perched wetlands only if it was necessary to protect ``water 
quality.''\8\
---------------------------------------------------------------------------
    \8\ The Senate Committee Report stated:

    The objective of the 1972 Act is to protect the physical, 
chemical, and biological integrity of the Nation's waters. 
Restriction of jurisdiction to those relatively few waterways 
that are used or are susceptible to use for navigation would 
render this purpose impossible to achieve. Discharges of 
dredged or fill material into lakes and tributaries of these 
waters can physically disrupt the chemical and biological 
integrity of the Nation's waters and adversely affect their 
quality. The presence of toxic pollutants in these materials 
compounds this pollution problem and further dictates that the 
adverse effects of such materials must be addressed where the 
material is first discharged into the Nation's waters.
    S. Rep. No. 370, 95th Cong., 1st Sess., 75 (1977), 
reprinted in Legislative History, Volume IV, at 708. The Report 
went on to delineate areas that were not intended to be covered 
by the Clean Water Act stating:
    These specified activities should have no serious adverse 
impact on water quality. . . .
    Id. at 710.
    The concern was to cover waters affecting water quality, 
not every wet area.
    The July 25, 1975 interim final regulations that were the 
target of this congressional attention were replaced by final 
regulations on July 19, 1977 which went even farther than the 
interim final regulations. 42 Fed. Reg. 37122 (1977). The final 
regulations, which parallel today's regulations, stated the 
Clean Water Act would reach navigable waters, their 
tributaries, adjacent wetlands and:

    All other waters of the United States . . . such as 
isolated wetlands and lakes, intermittent streams, prairie 
potholes, and other waters that are not part of a tributary 
system to interState waters or to navigable waters of the 
United States, the degradation or destruction of which could 
affect interState commerce.

    42 Fed. Reg. 37144.
    In the face of the overwhelming congressional sentiment to 
reject the less expansive interim final regulations, it does 
not seem logical to argue that Congress embraced the more 
expansive final regulations that were published in the later 
stages of the 1977 congressional debate.\9\ Nor does it seem 
logical to argue that in 1977 Congress embraced the Migratory 
Bird Rule which was announced in 1986.\10\
---------------------------------------------------------------------------
    \9\ An exhaustive search of the 1977 legislative history by the 
Justice Department produced only three ``supporting'' quotes. Senator 
Bentsen, who introduced an amendment to narrow the definition of 
navigable waters, complained that the Corps' regulation would cover 
``isolated marshes.'' 123 Cong. Rec. 26711 (1977). Senator Tower, who 
supported the Bentsen amendment, objected to the Corps' regulatory 
scheme because it covered ``all surface waters and wetlands of the 
United States.'' Legislative History, Volume IV, at 930. Finally, 
Congressman Abnor stated that the Corps' regulatory program covered 
``virtually all wetlands.'' 123 Cong. Rec. 34852 (1977). Respondent's 
[EPA's] Petition for Rehearing and Suggestion of En Banc 
Reconsideration, Hoffman Homes, Inc. v. Environmental Protection 
Agency, 975 F.2d 1554 (7th Cir. 1992). 
These quotes appear to establish that Congress understood the potential 
reach of the new regulations and, as Senator Muskie made clear, 
rejected it. The debate was not over whether to reject the Corps' new 
definition of its jurisdiction, but how to reject it. The government's 
reliance on Congressman Abnor's statement is interesting in that the 
Congressman's statement was inserted into the congressional Record as 
an Extension of Remarks sandwiched between Congressman Lundine's 
financial disclosure and Congressman Michel's reprinting of an article 
in the Peoria Journal Star on race discrimination.
    \10\ See SWANCC, 531 U.S. at 170, ``We conclude that the [Corps 
has] failed to make the necessary showing that . . . demonstrates 
Congress' acquiescence to the Corps' regulations or to the `Migratory 
Bird Rule,' which, of course, did not first appear until 1986.''
---------------------------------------------------------------------------


                  iv. the wetlands delineation manuals


    Not only has the regulatory definition of what constitutes 
a ``navigable water'' changed over time, but the definition of 
what constitutes a wetland has changed.
    Prior to 1989, the four Federal agencies involved in 
wetlands protection (Corps, EPA, Fish and Wildlife Service, and 
Soil Conservation Service\11\) had separate procedures and 
methodologies for delineating wetlands. To reconcile these 
differences, a 12-member committee of experts was appointed in 
1988. The result was the 1989 Federal Manual for Identifying 
and Delineating Jurisdictional Wetlands. Michael S. Nagy; The 
Definition of ``Wetlands'' Under Section 404 of the Clean Water 
Act; Past, Present, and Future; 3 Journal of Environmental Law, 
1993.
---------------------------------------------------------------------------
    \11\ The Soil Conservation Service was renamed the Natural 
Resources Conservation Service in October 1994.
---------------------------------------------------------------------------
    The 1989 manual replaced the Corps' 1987 Wetlands 
Delineation Manual as well as the delineation manuals used by 
other agencies. The Corps' 1987 manual had utilized a three-
part test requiring the presence of hydrophytic vegetation, 
hydric soils, and wetlands hydrology.\12\ The 1989 manual 
provided that jurisdictional wetlands existed if only two of 
the three elements were present. The 1989 manual specified that 
all three standards had to be met, but it permitted agencies to 
infer the presence of one standard based on the presence of the 
other two.
---------------------------------------------------------------------------
    \12\ Hydrophytic plants are able to live in water, or in soil that 
is often saturated or low in oxygen. Hydric soils are formed when 
saturation occurs long enough to cause anaerobic (no oxygen) 
conditions. Hydrology is the pattern of flooding or saturation.
---------------------------------------------------------------------------
    After the 1989 manual was published, controversy erupted 
based on the fact that significant amounts of acreage that had 
not been jurisdictional under the 1987 manual would suddenly 
become so. This controversy resulted in proposed changes to the 
1989 manual which culminated in a 1991 manual for delineating 
wetlands. Like the 1989 manual, the 1991 manual affected the 
areas which would now be jurisdictional. One analysis suggested 
that applying the 1991 manual in Virginia would have resulted 
in 59 percent of previously identified wetlands in the State no 
longer being jurisdictional. W. R. Walker and S. C. Richardson; 
The Federal Wetlands Manual: Swamped by Controversy, Virginia 
Water Resources Research Center; Special Report No. 24; October 
1991. Congress finally resolved the controversy with the 
passage of the Energy and Water Development Appropriations Act 
of 1993 containing a provision requiring the use of the Corps' 
1987 manual.
    My point is not to debate the relative merits of each 
delineation manual. The point is that experts can, did, and do 
disagree about what constitutes a wetland. The unexpert public 
is left confused. Even today, using the same delineation manual 
and the same Clean Water Act regulations, an area might be seen 
as jurisdictional in one Corps District Office and not 
jurisdictional in another.


        v. application of existing standards by corps district 
                        offices varies by office


    Within the Corps' 38 District Offices, there are 
significant differences of interpretation regarding what areas 
are jurisdictional under the Clean Water Act. In 1994, the 
General Accounting Office conducted a survey of numerous Corps 
District Offices. That report, ``Waters and Wetlands: Corps of 
Engineers Needs to Evaluate Its District Office Practices in 
Determining Jurisdiction,'' GAO-04-297 (Feb. 2004) (``GAO 
Report''), found the following.

      Some District Office generally regulate all wetlands 
simply because they are located in the 100 year floodplain. 
Other District Offices do not use the 100 year floodplain as a 
jurisdictional basis. Still other District Offices consider 
locations within the 100 year floodplain as only one of many 
factors to be considered.
      Some District Offices use sheet flow (overland flow of 
water outside of a defined channel) as a basis for regulating 
an associated wetland because of a hydrological connection to 
the sheet flow. Other District Offices do not consider sheet 
flow between a wetland and a water when making jurisdictional 
determinations.
      Some District Offices regulate almost all wetlands 
located within 200 feet of other waters of the United States 
and generally do not assert jurisdiction beyond that distance. 
Other District Offices employ a 500 foot standard.
      Some District Offices assert jurisdiction over wetlands 
separated from other waters of the United States by manmade or 
natural barriers such as dikes and dunes provided that the 
separation is caused by no more than one such barrier. Other 
District Offices assert jurisdiction over wetlands separated 
from waters of the United States by more than one barrier. 
Still others regulate all wetlands within 200 feet of other 
waters of the United States regardless of the number of 
barriers separating the waters and the wetlands.
      An official in one District Office told GAO that if that 
official asked three different district staff to make a 
jurisdictional determination based on the lateral reach of 
waters of the United States using the ordinary high water mark 
standard, he would probably get three different decisions on 
what areas are subject to Clean Water Act jurisdiction.
      Some District Offices were fairly inclusive in finding a 
wetland jurisdictional if water flowed in a manmade surface 
conveyance between the wetland and a water of the United 
States. Other District Offices said that mere conveyance was 
insufficient and the ditch or channel must also have an 
ordinary high water mark or display wetlands characteristics. 
Still another District Office addresses which direction a water 
is flowing asserting that jurisdiction follows if the water 
flows from the wetland into a water of the United States. 
However, if the flow went from the water of the United States 
to the ditch into the wetland, the wetland would not be 
considered jurisdictional.
      With respect to whether the ditch itself is 
jurisdictional, some Districts assert jurisdiction over a ditch 
whenever it creates a connection between a wetland and a water 
of the United States. Other Districts indicated such a ditch 
might or might not be jurisdictional depending on factors such 
as whether the ditch had an ordinary high water mark, exhibits 
the three parameters of a wetland, or replaces a historic 
stream. For this second group of District Offices, a non-
jurisdictional ditch could be filled without a Section 404 
permit, thus severing the jurisdictional connection between the 
wetland and a water in the United States. Significantly, once 
that connection is severed, the previously jurisdictional 
wetland is rendered non-jurisdictional and can be filled 
without a Section 404 permit.
      Some District Offices use drain tiles (porous clay pipes 
buried below the surface to provide drainage) to establish a 
jurisdictional connection between a wetland and a water of the 
United States when the drain tiles replace a historic 
tributary. Other District Offices do not consider drain tiles 
to establish jurisdictional connections.
      Some District Offices considered storm drain systems as 
jurisdictional connections particularly when the storm drain 
system conveys the flow of a historic stream. Other District 
Offices used storm drain connections to establish jurisdiction 
even if those storm drain connections do not replace a historic 
tributary.

    GAO Report at 17-26.
    Notwithstanding the fact that every Corps office is bound 
by the same set of Federal regulations, the facts are that 
those regulations are interpreted differently in the various 
Corps regions, leaving the public subject to varying standards. 
Significantly, the public is often not apprised of the 
standards used by the Corps to determine jurisdiction. 
Specifically, of the 16 District Offices surveyed by GAO, only 
three had developed written documentation of their practices 
that they made available to the public. According to GAO: ``The 
other 13 districts that we reviewed have not made documentation 
of their practices publicly available.'' GAO Report at 27.


                 vi. the swancc project and the corps'
                      jurisdictional determination


    It is within this regulatory milieu that the SWANCC case 
arose. However, before proceeding to the case itself, it may be 
helpful to review certain facts.
    SWANCC was comprised of 23 suburban Chicago towns and 
villages. In compliance with Illinois law requiring communities 
to develop solid waste management plans, SWANCC developed a 
management plan for the disposal of non-hazardous solid waste 
for the 700,000 people in its member communities. Although the 
Corps ultimately rejected SWANCC's section 404 permit 
application, the Corps characterized SWANCC's solid waste 
management proposal as ``an admirable plan'' to manage waste 
for 20 years by emphasizing waste via reduction, recycling, and 
composting.
    To accomplish this plan, SWANCC purchased a 533-acre site 
straddling Cook and Kane Counties to create a balefill a 
landfill where baled, rather than loose, waste is dumped. 
SWANCC proposed to use 410 acres in Cook County for the 
balefill. 298 of those acres had been used for sand and gravel 
strip mining from the 1930's to the 1950's. This strip mining 
left alternating linear spoil ridges and excavation trenches 
across the property. Some of the trenches and depressions left 
by the strip mining formed seasonal and sometimes permanent 
ponds. The ponds were isolated and the Corps never suggested 
the existence of any hydrological connection to any navigable 
lakes, rivers, or streams.
    Prior to becoming involved in the section 404 process, 
SWANCC had obtained approval from the Cook County Zoning Board 
of Appeals in 1987 for the balefill project. After conducting 
ten public hearings and compiling what was determined to be the 
largest record of proceedings in its history, the Zoning Board 
recommended approval of the permit and the Cook County Board of 
Commissioners approved the permit by a 75 percent vote.
    SWANCC also had the required State approvals. SWANCC had 
submitted a 1700-page application for the requisite permits 
under Illinois law and, in November 1989, the Illinois EPA 
approved a development permit for SWANCC. Subsequently the 
Illinois Department of Conservation reviewed SWANCC's plans and 
reported that any adverse impacts on State species would be 
mitigated through implementation of SWANCC's mitigation plan.
    The uncertainty faced by the public regarding what are 
jurisdictional waters under the Clean Water Act was graphically 
demonstrated when SWANCC entered the Federal arena. Prior to 
the time the Corps asserted jurisdiction over SWANCC's site, 
SWANCC had twice asked the Corps if there were any Clean Water 
Act jurisdictional waters on the site. In response to SWANCC's 
first inquiry, the Corps advised SWANCC on April 17, 1986: 
``[T]he . . . site is not subject to our regulatory authority. 
. . .''\13\ To be absolutely certain there were no CWA 
permitting issues SWANCC asked again. On March 4, 1987, the 
Corps again reaffirmed its lack of jurisdiction stating: 
``[T]he . . . site is not subject to our regulatory authority. 
. . .''\14\
---------------------------------------------------------------------------
    \13\ Letter to Daniel P. Dietzler, Patrick Engineering, Inc., from 
James E. Evans, Chief, Construction Operations Division, Chicago 
District, Corps of Engineers, April 17, 1986.
    \14\ Letter to Daniel P. Dietzler, Patrick Engineering, Inc., from 
James E. Evans, Chief, Construction Operations Division, Chicago 
District, Corps of Engineers, May 4, 1986.
---------------------------------------------------------------------------
    Four months later, on July 8, 1987, the Illinois Nature 
Preserves Commission (``INPC'') wrote the Corps stating that a 
brief visit to SWANCC's 410 acre site by INPC staff ``resulted 
in the observation of a number of migratory bird species. . . 
.''\15\ The letter did not State whether the migratory birds 
were observed on the actual depressions to be filled or on the 
remaining 392.4 acres. The letter contained no discussion of 
whether the birds actually used the specific depressions to be 
filled versus the non-jurisdictional upland treed areas on the 
site. The letter was devoid of any discussion of whether the 
low lying depressions to be filled provided a necessary habitat 
for the birds. Nevertheless, the Corps wrote the INPC on 
November 16, 1987 stating:
---------------------------------------------------------------------------
    \15\ Letter to Tom Slowinski, Regulatory Functions Branch, Chicago 
District, Corps of Engineers, from Brian D. Anderson, INPC, July 8, 
1987.
---------------------------------------------------------------------------
    We have reviewed your letter and have determined that the 
water areas of the abandoned gravel pit do qualify as ``waters 
of the United States'' and are under our regulatory authority. 
. . . This determination is based on the following three 
criteria: 1/ that the proposed balefill site has been abandoned 
as a gravel pit; 2/ that the water areas and spoil piles have 
developed a natural character; and, 3/ that the water areas are 
used or could be used as habitat by migratory birds which cross 
State lines.\16\
---------------------------------------------------------------------------
    \16\ Letter to Brian D. Anderson, INPC, from Jess J. Franco, Jr., 
District Engineer, Chicago District, Corps of Engineers, November 16, 
1987. It should also be noted that in three separate letters to SWANCC 
dated April 21, 1988; March 23, 1989; and March 20, 1990 the Corps 
confirmed the isolated waters on SWANCC's property were not wetlands.
---------------------------------------------------------------------------
    Between July 8, 1987 and November 16, 1987, the Corps 
performed no surveys or analyses to determine if migratory 
birds actually used the 17.6 acres at issue versus the non-
jurisdictional treed areas. In fact, the Corps never conducted 
any study to determine whether the birds used or even could use 
the 17.6 acres. Instead, relying exclusively on INPC's 
representation that migratory birds were observed somewhere on 
the 410 acre property, the Corps asserted jurisdiction over 
17.6 acres of low lying trenches and ruts on the site. The 
jurisdictional theory employed by the Corps was that the mere 
presence of birds somewhere on the 410 acre site was sufficient 
to give the Corps jurisdiction over the 17.6 acres of strip 
mined depressions to be filled.
    To say that SWANCC was confused by the Corps' 
decisionmaking process would be something of an understatement. 
Nevertheless, because it had no choice, SWANCC submitted a 
section 404 permit application in February 1990. In July 1994, 
the Corps denied the permit finding that the balefill was 
contrary to the public interest because it would break up a 
large contiguous forest which would cause unmitigatable impacts 
to birds species, SWANCC had not conclusively demonstrated that 
its proposal was the least environmentally damaging practicable 
alternative, and SWANCC had not demonstrated that its 23 
municipal corporations had the capacity to finance in 
perpetuity long-term maintenance responsibilities and 
remediation should those problems arise.


                vii. the supreme court's swancc decision


    The meaning of the Supreme Court's ruling in SWANCC was, 
and has been, the subject of much debate. Many experts argued 
the SWANCC decision precluded the Corps from regulating 
isolated, intrastate, non-navigable waters. Others argued that 
the Court had only prohibited regulation of waters based 
exclusively on the Migratory Bird Rule. Although the second 
interpretation came to be that adopted by the Federal agencies 
and by many lower courts, it is interesting that Justice 
Kennedy in his concurring opinion and Justice Stevens, in his 
dissenting opinion in Rapanos v. United States, 126 S. Ct. 2208 
(2006), interpreted SWANCC differently. Justice Kennedy stated: 
``In [SWANCC] the Court held, under the circumstances presented 
there, that to constitute `navigable waters' under the Act, a 
water or wetland must possess a `significant nexus' to waters 
that are or were navigable in fact or that could reasonably be 
made so.'' Rapanos v. United States, 126 S. Ct. at 2236 
(Kennedy, J., concurring). See also, id. at 2256, Stevens, J., 
dissenting: ``[In SWANCC t]he Corps had asserted jurisdiction 
over the gravel pit under its 1986 Migratory Bird Rule . . . . 
The Court rejected this jurisdictional basis since these 
isolated pools . . . had no `significant nexus' to 
traditionally navigable waters.''
    As noted earlier, some people have said that since the 
SWANCC decision there has been confusion about what areas are 
jurisdictional and, therefore, a return to the pre-SWANCC era 
will clarify matters. That may not be the case because, as the 
GAO Report documents, the regulatory definition of ``waters of 
the United States'' is subject to varying interpretations and 
at least some of those issues will remain even if we return to 
the pre-SWANCC era. However, it may be helpful to consider why 
these different approaches exist. Given that the Clean Water 
Act is 35 years old, one would think many of the issues 
identified by GAO would have been resolved by now.
    When GAO asked the Corps to explain the varying 
jurisdictional practices in different Corps districts, the 
Corps offered two explanations. The first was that local 
conditions within districts often require the use of different 
standards. The second reason given by the Corps according to 
GAO was that: because nearly all waters were jurisdictional 
under the migratory bird rule, questions regarding the 
imprecise definition of adjacent wetlands and isolated waters 
were previously moot. When the Supreme Court struck down the 
migratory bird rule in 2001, districts had to rely on the key 
terms and the regulatory definition of waters in the United 
States which had not been well defined.
    GAO Report at 26. The GAO Report states that both the 
Department of Defense and EPA ``concurred with the report's 
findings . . . .'' Id. at 29. In short, and in GAO's words, 
because of the Migratory Bird Rule ``nearly all waters and 
wetlands in the United States were potentially jurisdictional'' 
and, therefore, no other jurisdictional standard was really 
required. Id. at 8. Now, the Corps is grappling with the 
absence of the Migratory Bird Rule and is applying the 
regulations actually promulgated pursuant to the notice and 
comment procedures of the Administrative Procedure Act.


                 viii. constitutional issues in swancc


    Congress' power under the Commerce Clause extends to 
``three broad categories of activity: (1) the use of the 
channels of interState commerce; (2) the instrumentalities of 
interState commerce, or persons or things in interState 
commerce; and (3) those activities having a substantial 
relation to interState commerce, i.e., those activities that 
substantially affect interState commerce. United States v. 
Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 
549, 558-559 (1996). During the SWANCC Supreme Court 
litigation, the Corps conceded that the Migratory Bird Rule 
could only be sustained as an exercise of the third variety of 
regulatory power.
    During the SWANCC litigation, the government's case 
regarding substantial effects on interState commerce was based 
on the cumulative effect that filling the isolated ponds on the 
SWANCC site would have on migratory bird habitat and on the 
ability people to pursue recreational and commercial activities 
associated with migratory birds. Although the Supreme Court has 
not adopted a categorical rule against cumulating the effects 
of an activity to find a substantial impact on interState 
commerce, it has emphasized that ``thus far in our Nation's 
history our cases have upheld Commerce Clause regulation of 
intraState conduct only where that activity is economic in 
nature.'' Morrison, 529 U.S. at 613. The Migratory Bird Rule, 
however, prohibits activities that are not inherently economic 
or commercial. It applies equally to a private homeowner who 
plants a garden, landscapes the backyard, or fills in a damp 
patch to prevent mosquitoes, and to a commercial developer who 
bulldozes a marsh. Indeed, the Corps has taken the position 
that the Migratory Bird Rule regulates non-commercial 
``[a]ctivities such as walking, bicycling or driving a vehicle 
through a wetland'' 58 Fed. Reg. 45008, 45020 (1993). 
Obviously, many of those activities are not commerce in the 
ordinary sense of that term.
    There is a second constitutional issue to consider. Recall 
that during the SWANCC litigation, the government asserted that 
filling the isolated ponds on the SWANCC site could reduce the 
population of migratory birds which could impede the hunting, 
trapping, and observation of birds' activities for which people 
spend substantial sums and cross State lines, thereby impacting 
interState commerce. Given that approximately five billion 
birds migrate across North America each year and that migratory 
bird flyways cover the entire continental United States, this 
theory of jurisdiction would likely grant the Corps power over 
virtually every area of the United States. However, State and 
local control over land use is a well-established legal and 
constitutional principle. In United States v. Lopez, the 
Supreme Court noted that in considering the propriety of 
Federal jurisdiction under the Commerce Clause, one must also 
be cognizant of whether the exercise of Federal authority 
erodes the ``distinction between what is truly national and 
what is truly local.'' 541 U.S. at 567.
    The Court did not reach any constitutional issues in the 
SWANCC decision and thus never opined on whether the links 
between the isolated ponds on SWANCC's site and economic 
activity were sufficient or too attenuated to pass muster under 
the Commerce Clause. Nor did the Court opine on whether the 
ability of the Corps to use the Migratory Bird Rule to control 
project siting decisions would unconstitutionally impinge on 
land use and other authority reserved to the states. I 
recognize that distinguished scholars can and will disagree 
over these issues and a detailed exposition of these issues is 
not even attempted in this statement. However, it may be worth 
noting that in its decision in the SWANCC case, the Court did 
State there are ``significant constitutional questions'' raised 
by the application of the Migratory Bird Rule. SWANCC, 531 U.S. 
at 174. The Court went on to state: ``Permitting [the Corps] to 
claim Federal jurisdiction over ponds and mudflats falling 
within the `Migratory Bird Rule' would result in a significant 
impingement of the state's traditional and primary power over 
land and water use. [Citations omitted.]'' Id.


          ix. interpretation of, and reaction to, the rapanos
                         and carabell decisions


    I am sure the Committee has been fully briefed by the staff 
on the substance of the Supreme Court's decision in Rapanos v. 
United States and I will not address that. Much of the post-
Rapanos debate has focused on how the decision will be 
implemented and what, if any, changes should be made to the 
existing definition of the term ``navigable waters.''
    In considering definitional changes, it may be appropriate 
to begin by considering the statute's purposes and the purpose 
of any amendment. In that regard, S. 1870 is the successor to 
earlier proposals introduced soon after the SWANCC decision. A 
fundamental purpose of the legislation was to resurrect the 
Migratory Bird Rule and to apply Clean Water Act jurisdiction 
to waters such as those on SWANCC's site. Please recall that 
SWANCC's site was an abandoned strip mined gravel pit where 
water accumulated in the strip mine trenches. There was no 
connection between those isolated ruts and trenches and any 
navigable water or associated watershed. The only basis for 
Clean Water Act jurisdiction was to protect birds. Thus, a 
question which should be asked in considering amendments to the 
statute is whether the purpose of the Clean Water Act is to 
protect waters which are part of, and connected in some way to, 
a watershed, or whether the purpose of the Act is to protect 
migratory bird habitat even when there is no connection to the 
watershed. Depending on how one answers that question, the need 
for, and the structure of, any statutory changes may become 
clearer.
    I raise this issue for your consideration because if it is 
the wisdom of this Committee and the Congress to enact S. 1870, 
you should do so with the awareness that this bill will not 
simply return us to the pre-SWANCC era by reinstating the 
Migratory Bird Rule. S. 1870 will alter the jurisdictional 
reach of the Clean Water Act by deleting the term ``navigable 
waters'' in the Act and replacing it with a definition of the 
term ``waters of the United States.'' Such a change would be a 
fundamental departure from the original intent of the Congress 
detailed above which grounded the Act in the concept of 
navigability. In that regard, Supreme Court jurisprudence on 
the term ``navigable waters'' in the Clean Water Act indicates 
that the term ``navigable waters'' has a meaning that is less 
than all waters in the United States. As the Court noted in 
SWANCC: ``it is one thing to give a word limited effect and 
quite another to give it no effect whatever. The term 
`navigable' has at least the import of showing us what Congress 
had in mind as its authority for enacting the [Clean Water 
Act]: its traditional jurisdiction over waters that were or had 
been navigable in fact or which could be reasonably be so made. 
[Citations omitted].'' SWANCC, 531 U.S. at 172. By deleting the 
term ``navigable waters'' from the statute, the import of S. 
1870 will be to reach all waters in the United States without 
any reference to navigability.
    That such a change in the Clean Water Act would cut a wide 
swath across America is seen in the description of the Clean 
Water Act nationwide Permits (``NWP'') recently reissued by the 
Corps. 72 Fed. Reg. 11092 (March 12, 2007). In approving each 
NWP, the Corps identified the types of activities covered. For 
example, NWP 29 covers residential construction by individual 
homeowners; NWP 39 covers commercial and institutional 
development including fire stations, schools, churches, 
hospitals, and libraries; and NWP 42 addresses recreational 
activities such as soccer and baseball fields, bike paths, 
hiking trails, nature centers, and campgrounds. I am not 
suggesting that such activities cannot impact water quality. I 
am only indicating that many people view the Clean Water Act as 
only affecting developers when, in reality, it affects many 
other interests. It may be worth noting in this regard that it 
is estimated that 75 percent of United States wetlands are 
privately owned. Roy R. Carricker, Wetlands and Environmental 
Legislation Issues, Journal of Agriculture and Applied 
Economics 26(1), July 1994.
    If the intended result of S. 1870 is to reach all waters in 
the United States, Congress may also wish to consider whether 
there is merit to allowing the affected public to challenge 
jurisdictional decisions where individuals or entities feel 
Corps' jurisdiction has been improperly exercised. Although the 
likelihood of success for such a challenge may be limited given 
the language of S. 1870 and the deference courts accord Federal 
agencies, the reality is that the courts have generally taken 
the position that they lack jurisdiction over the Corps' 
jurisdictional determinations until an enforcement action is 
brought or a permit denied. See, e.g., Southern Pines Assoc. of 
the United States, 912 F.2d 713 (4th Cir. 1990); Hoffman Group 
v. Environmental Protection Agency, 902 F.2d 566 (7th Cir. 
1990). Regardless of whether you agree or disagree with the 
decision in SWANCC, the facts are that SWANCC did not believe 
the Corps had properly asserted jurisdiction. However, because 
jurisdictional decisions cannot be challenged in court until 
after a permit has been denied or an enforcement action begun, 
SWANCC's 23 municipalities were compelled to spend 
approximately $4.5 million going through the permit process 
before having any opportunity to challenge whether the Corps 
was properly requiring SWANCC to do so. As it turns out, under 
the law as interpreted by the Supreme Court, SWANCC's 
municipalities were forced to spend $4.5 million applying for a 
permit which the Supreme Court said they did not need.
    In this regard according to information contained in briefs 
filed before the Supreme Court in the Rapanos case, the average 
applicant for an individual permits spends 788 days to complete 
the permitting process and the mean cost is $271,596; while the 
average applicant for a nationwide permit spends 313 days and 
$28,915. These are only the process costs and exclude the costs 
of design changes and mitigation. Over $1.7 billion is spent 
each year by the public and private sectors in obtaining 
wetland permits. Rapanos, 126 S. Ct. at 2214, citing Sundling 
and Zilberman, The Economics of Environmental Regulation by 
Licensing: An Assessment of the Wetlands Permitting Process, 42 
Natural Resources Journal 59, 74-76, 81 (2002).
    As a final matter, I should also note that S. 1870 will 
likely trigger a debate among constitutional scholars and, if 
enacted, may well result in a Supreme Court decision defining, 
as S. 1870 puts it, the ``legislative power of Congress under 
the Constitution.'' If Congress enacts S. 1870 as written it 
would not be surprising if some plaintiff raises the issue of 
the limits of Congress' power under the Commerce Clause and the 
relationship between Congress' power and those powers reserved 
to the states. I am not wise enough to predict what the Supreme 
Court might decide. But it is fair to say that any such 
decision may define Congress' power not only with respect to 
the Clean Water Act but also with respect to every other 
statute for which the Commerce Clause is a constitutional 
foundation.


                             x. conclusion


    I appreciate the opportunity to appear before you today and 
I hope my comments will be constructive in your deliberations. 
This Committee has many issues to consider. There is no doubt 
you will hear strongly held opinions, all supported by 
scholarly analyses. Sadly, because of the complexity of these 
issues, it may be that no matter what this Committee does, at 
the end of the day, we may find ourselves waiting for the next 
Supreme Court decision.
                                ------                                


        Responses by George J. Mannina to Additional Questions 
                           from Senator Boxer

    Question 1. You recently published an article titled, 
``Waters of the U.S.': Definition Remains in Doubt After 
Supreme Court Ruling'' in which you talk about the Supreme 
Court's opinions in Rapanos/Carabell. You said that among the 
Rapanos/Carabell opinions the ``areas of agreement were few'' 
and ``most assuredly there will be more litigation.'' In your 
written testimony for this hearing you say the opinions 
produced ``uncertainty'' and you describe the standards 
announced as ``somewhat opaque.''

      In your practice, (a) how does the uncertainty created 
by Rapanos/Carabell affect the advice you give your clients and 
other affected parties on Clean Water Act issues, and (b) how 
has this uncertainty played out in administrative and 
litigation proceedings that you have handled or observed?
      I assume you agree that since SWANCC and Rapanos/
Carabell, there are now many more opportunities for your 
clients and others to argue that the waters they are impacting, 
including wetlands, are not subject to Federal jurisdiction. 
What are the types of arguments under SWANCC and Rapanos/
Carabell that you are seeing in your practice?
    Response. The article I wrote, referenced in your question, 
was written a few days after the Supreme Court issued its 
decision in Rapanos v. United States, notwithstanding the fact 
that the article was not published until almost 2 months later. 
It was in that article, not my written testimony, that I 
asserted the opinions produced uncertainty, and the standards 
were somewhat opaque. The uncertainty I identified immediately 
after the Court issued its decision existed on two levels. The 
first level of uncertainty was whether lower courts would adopt 
different interpretations of what jurisdictional standard to 
apply given the fact that no single opinion in the Rapanos 
decision commanded a majority. The second area of uncertainty 
was how the legal standard selected by the lower courts would 
be applied in fact specific situations.
    Since the Supreme Court's decision in Rapanos, several 
district and appeals courts have wrestled with the question of 
the appropriate standard. As you know, most courts are 
gravitating toward Justice Kennedy's significant nexus 
standard. Thus, that area of uncertainty which existed at the 
time the court issued the Rapanos decision appears to be 
diminishing.
    In considering whether the Rapanos decision created 
uncertainty regarding the application of the selected 
jurisdictional standard, it may be helpful to step back for 
perspective. Both the SWANCC and Rapanos decisions proceed from 
the assumption, based on the legislative history of the Clean 
Water Act, that not every wet area found in the United States 
is a water of the United States. This provides a new level of 
certainty regarding what is properly within the jurisdiction of 
the Clean Water Act. The result, particularly after the Rapanos 
decision and the general application of the significant nexus 
standard, has been that the Corps of Engineers and the public 
are now, with respect to waters that are not clearly 
jurisdictional, examining each circumstance to determine if 
there is a biological, chemical, or physical connection 
sufficient to satisfy the significant nexus test. These are 
fact-specific issues. Unless Congress amends the Clean Water 
Act to provide for jurisdiction over every wet area, the Corps 
will continue to make fact-specific determinations. It should 
also be noted that fact-specifications determinations are not a 
departure from past practice. Indeed, the Rapanos decision did 
not change this practice. Instead, Rapanos provided more 
guidance on the factors to be considered in making these 
determinations.
    The Corps of Engineers has long recognized that absent a 
standard in which every wet area is jurisdictional there may be 
some judgment regarding what is jurisdictional based on 
specific factual circumstances. Indeed, in 1980, the Corps 
specifically noted that the Clean Water Act does not make every 
wet area jurisdictional. 45 Fed. Reg. 33290, 33398 (1980) 
(``small, isolated wet areas may not be waters of the United 
States. . . . Including an `exemption' for such areas might 
create the erroneous impression that, but for the exception . . 
. each puddle and damp spot would need a permit. . . .'' 
Similarly, the Corps of Engineers, through the Department of 
Justice, asserted in 1987 that ``Congress did not automatically 
include every waterbody, however isolated, within the coverage 
of the [Clean Water Act].'' Memorandum in Support of Federal 
Defendants' Motion to Dismiss Or In The Alternative For Summary 
Judgment And In Opposition To The Plaintiffs' Motion For 
Partial Summary Judgment, at 50, National Wildlife Federation 
v. Laubscher, 662 F. Supp. 548 (S.D. Texas 1987). Thus, both 
SWANCC and Rapanos provided greater certainty in determinations 
regarding Clean Water Act jurisdiction by confirming that not 
every wet area is subject to jurisdiction under the Act and by 
providing further definition of the specific issues to be 
considered in making a jurisdictional determination. Since the 
Rapanos decision, there has been a more diligent effort to 
determine, for areas that are not clearly jurisdictional, 
whether the facts of a specific situation are sufficient to 
make the finding that an area has sufficient chemical, 
physical, or biological nexus to support a jurisdictional 
determination under the Clean Water Act.

    Question 2. The Clean Water Act prohibits discharges of 
toxic chemicals from industrial facilities such as chemical 
plants and oil refineries into our streams and rivers under 
what is commonly known as the ``NPDES'' program.
      It is your opinion that the decisions in SWANCC and 
Rapanos/Carabell apply to the scope of waters protected under 
the NPDES program essentially the same way as those decisions 
apply to waters under the Section 404 program?
      Under Rapanos/Carabell, if a chemical factory is located 
next to an isolated wetland or a stream that is only flowing at 
certain times of the year ands in either case, that water does 
not have a significant nexus to a traditional navigable water, 
is it your understanding of Rapanos/Carabell that a chemical 
factory could dump all of the toxic pollution it wants into 
those water bodies without any control under the Federal Clean 
Water Act?
      Does it concern you that in many states there may be no 
legal constraints against polluting wetlands and intermittent 
streams under the Rapanos/Carabell decisions?
    Response. In responding to your question about the extent 
to which the Rapanos decision will or will not impact the NPDES 
program, it may be helpful to quote from the plurality opinion 
in Rapanos which stated:

    Respondents and their amici urge that such restrictions on 
the scope of ``navigable waters'' will frustrate enforcement 
against traditional water polluters under 33 U.S.C.   1311 
and 1342 because the same definition of ``navigable waters'' 
applies to the entire statute, respondents contend that water 
polluters will be able to evade the permitting requirements of 
 1342(a) simply by discharging their pollutants into non-
covered intermittent water courses that lie upstream of covered 
waters. See Tr. of Oral Arg. 74-75.
    That is not so. Though we do not decide this issue, there 
is no reason to suppose that our construction today 
significantly affects the enforcement of  1342 inasmuch as 
lower courts applying  1342 have not characterized 
intermittent channels as ``waters of the United States.'' The 
Act does not forbid the ``addition of any pollutant directly to 
navigable waters from any point source.'' But rather the 
``addition of any pollutant to navigable waters.''  
1362(12)(A)(emphasis added);  1311(a). . . . We have held that 
the Act ``makes plain that a point source need not be the 
original source of the pollutants; it need only convey the 
pollutant to `navigable waters'.'' [Citations omitted.]
    Rapanos v. United States, 126 Sup. Ct. 2208, 2227 (2006). 
Given that the four dissenting Justices would have upheld Clean 
Water Act jurisdiction in each circumstance presented to the 
Court, it is likely that at least eight Justices would form a 
majority around the position taken by the plurality Justices 
quoted above.
    As to the precise example in your question, given the facts 
you set forth, it is likely that a significant nexus would be 
found given the volume and toxicity of the substances posited 
to exist. However, the policy issue is not limited to the 
example you present. Equally important is the issue of whether 
homeowners, schools, churches, libraries, and similar entities 
will be allowed to add a room to their house or build a school, 
church, or library if the project affects a small wet area 
which could be used by migratory birds given that one of the 
objectives of the legislation now pending before your Committee 
is to resurrect that rule. An example might be helpful. I am 
advised that a congregation of poor, African-Americans on 
Maryland's Eastern Shore once sought to construct housing for 
members of its congregation living in sub-standard conditions. 
Miraculously, the church raised the $300,000 needed to pay for 
the construction. However, the church learned that part of the 
land on which it sought to construct the new housing contained 
wet areas considered to be jurisdictional under the Clean Water 
Act. The Corps, exercising its jurisdictional and permitting 
authority, found another parcel of land existed that could be 
used for the housing project. Unfortunately, that land cost 
$300,000, which would have consumed all the money raised for 
actual construction. Since $300,000 was the only money the 
church had available, the church abandoned the project. Members 
of the congregation who would have benefited from improved 
housing continued to live in sub-standard housing conditions.
    Finally, your question raises the issue of the legal 
restraints which may or may not exist pursuant to Section 404 
of the Clean Water Act regarding jurisdiction over isolated 
waters of intermittent streams. The issue of legal constraints 
must begin with an analysis of the constitutional issues, a 
matter about which learned scholars will disagree. However, it 
might be helpful to review how the Commerce Clause issues were 
addressed in the SWANCC litigation.
    Congress' power under the Commerce Clause extends to three 
broad categories of activity: (1) the use of the channels of 
interState commerce; (2) the instrumentalities of interState 
commerce, or persons or things in interState commerce; and (3) 
those activities having a substantial relation to interState 
commerce, i.e., those activities that substantially affect 
interState commerce. United States v. Morrison, 529 U.S. 598 
(2000); United States v. Lopez, 514 U.S. 549, 558-559 (1996). 
During the SWANCC Supreme Court litigation, the Corps conceded 
that the Migratory Bird Rule could only be sustained as an 
exercise of the third variety of regulatory power.
    During the SWANCC litigation, the government's case 
regarding substantial effects on interState commerce was based 
on the cumulative effect that filling the isolated ponds on the 
SWANCC site would have on migratory bird habitat and on the 
ability people to pursue recreational and commercial activities 
associated with migratory birds. Although the Supreme Court has 
not adopted a categorical rule against cumulating the effects 
of an activity to find a substantial impact on interState 
commerce, it has emphasized that ``thus far in our Nation's 
history our cases have upheld Commerce Clause regulation of 
intraState conduct only where that activity is economic in 
nature.'' Morrison, 529 U.S. at 613. The Migratory Bird Rule, 
however, prohibits activities that are not inherently economic 
or commercial. It applies equally to a private homeowner who 
plants a garden, landscapes the backyard, or fills in a damp 
patch to prevent mosquitoes, and to a commercial developer who 
bulldozes a marsh. Indeed, the Corps has taken the position 
that the Migratory Bird Rule regulates non-commercial 
``[a]ctivities such as walking, bicycling or driving a vehicle 
through a wetland.'' 58 Fed. Reg. 45008, 45020 (1993). Those 
activities are not commerce in the ordinary sense of that term.
    It should also be recalled that during the SWANCC 
litigation, the government asserted that filling the isolated 
ponds on the SWANCC site could reduce the population of 
migratory birds which could impede the hunting, trapping, and 
observation of birds' activities for which people spend 
substantial sums and cross State lines, thereby impacting 
interState commerce. Given that approximately five billion 
birds migrate across North America each year and that migratory 
bird flyways cover the entire continental United States, this 
theory of jurisdiction would likely grant the Corps power over 
virtually every area of the United States. However, State and 
local control over land use is a well-established legal and 
constitutional principle. In United States v. Lopez, the 
Supreme Court noted that in considering the propriety of 
Federal jurisdiction under the Commerce Clause, one must also 
be cognizant of whether the exercise of Federal authority 
erodes the ``distinction between what is truly national and 
what is truly local.'' 541 U.S. at 567.
    The Court did not reach any of these constitutional issues 
in the SWANCC decision and thus never opined on whether the 
links between the isolated ponds on SWANCC's site and economic 
activity were sufficient or too attenuated to pass muster under 
the Commerce Clause. Nor did the Court opine on whether the 
ability of the Corps to use the Migratory Bird Rule to control 
project siting decisions would unconstitutionally impinge on 
land use and other authority reserved to the states. I 
recognize that distinguished scholars can and will disagree 
over these issues. However, it may be worth noting that in its 
decision in the SWANCC case, the Supreme Court stated there are 
``significant constitutional questions'' raised by the 
application of the Migratory Bird Rule. SWANCC, 531 U.S. at 
174. The Court went on to state: ``Permitting [the Corps] to 
claim Federal jurisdiction over ponds and mudflats falling 
within the `Migratory Bird Rule' would result in a significant 
impingement of the state's traditional and primary power over 
land and water use. [Citations omitted.]'' Id. Thus, I believe 
the issue of legal restraints raised in your question will 
ultimately depend on a resolution of the constitutional issues.
                                ------                                


        Responses by George J. Mannina to Additional Questions 
                          from Senator Inhofe

    Question 1. You cite several excellent quotes from many of 
our former and a few of our current colleagues on the intent of 
Congress when it passed the Clean Water Act. The majority of 
members appear to be expressing concern that the Corps over 
reached on its authority in its 1975 regulations. What do these 
comments tell us about Congress' intent with regard to 
navigability and the Commerce Clause?
    Response. The legislative history of the Clean Water Act 
documents that Congress wished to go beyond the traditional 
limits of navigability but did not wish to dispose of the 
concept of navigability and to place every wet area within the 
United States under the Clean Water Act. Congress intended to 
use a modified concept of navigability as the basis for Clean 
Water Act jurisdiction.
    Senator Muskie, in managing the Conference Report on the 
1972 legislation, made it very clear that waters are to be 
considered navigable and, therefore, jurisdictional ``when they 
form, in their ordinary condition by themselves or by uniting 
with other waters or other systems of transportation, such as 
highways or railroads, a continuing highway over which commerce 
is or may be carried on with the states or with foreign 
countries. . . . In such cases, the commerce on such waters 
would have a substantial economic effect on interState 
commerce.'' A Legislative History of the Water Pollution 
Control Act Amendments of 1972 (``Legislative History''), Vol. 
1, at 178. Congressman Dingell, the House floor manager of the 
Conference Report, similarly wished to reach waters serving 
``as a highway'' for commerce. Id. at 250. Congressman Dingell 
went further by citing specific court decisions demonstrating 
the proper reach of the concept of navigation. Mr. Dingell 
stated these cases reveal that each body of water was one that 
was used or could be used as a ``link in the chain of commerce 
among the states.'' Id. Thus, the Clean Water Act was anchored 
in the concept of navigation for commerce. The jurisdictional 
reach of the Act was based on the concept of navigability, in 
Congressman Dingell's words, ``as it flows in the various 
channels of transportation.'' Id.

    Question 2. The history you provide of SWANCC's dealings 
with the Corps is very enlightening. You raise a very 
interesting point about SWANCC having spent $4.5 million to 
find out from the U.S. Supreme Court that they did not need a 
permit. Importantly, that was taxpayer money for a plan that 
was approved by a 75 percent vote of the County Board of 
Commissioners. Would SWANCC have benefited from being able to 
challenge the Corps' jurisdictional determination earlier in 
the process?
    Response. There is no question that SWANCC and the 
taxpayers of northern Cook County, Illinois would have 
benefited significantly from having the opportunity to 
challenge the jurisdictional determination of the Corps of 
Engineers before having to spend $4.5 million to apply for a 
permit which the Supreme Court determined the law did not 
require SWANCC to obtain. Simply put, under the current State 
of the law, the Corps of Engineers can make a jurisdictional 
determination and force private and public entities to spend 
millions of dollars to apply for a permit even when the Corps 
has no legal authority to require any such permit. Parties who 
do not believe the Corps is properly exercising jurisdiction 
should not be compelled to spend millions of dollars before 
they can find out whether the Corps had the authority to 
require a permit in the first place.
    Senator Boxer. The last speaker is Mr. William Buzbee, 
Professor of Law, Director, Environmental and Natural Resources 
Law Program and a whole other lots of titles there, at Emory 
Law School.
    Welcome, sir. And the vote has started, so we will have to 
end this at about 25 of.

  STATEMENT OF WILLIAM W. BUZBEE, PROFESSOR OF LAW, DIRECTOR, 
  ENVIRONMENTAL AND NATURAL RESOURCES LAW PROGRAM, EMORY LAW 
   SCHOOL, DIRECTOR, CENTER ON FEDERALISM AND INTERSYSTEMIC 
                           GOVERNANCE

    Mr. Buzbee. Thank you very much, Madam Chairman. And 
members of the Committee, I thank the Committee for this 
opportunity to testify. My name is Bill Buzbee. As was said, I 
am a Professor of Law at Emory University School of Law.
    In the Rapanos case, I served as co-counsel for a 
bipartisan group of former U.S. EPA administrators. My clients 
were aligned with the Bush administration, dozens of States and 
many environmental groups. We all joined in arguing that the 
Supreme Court should reject the major attack on the Clean Water 
Act presented by the Rapanos and Carabell challengers. We 
argued for maintaining longstanding protections of America's 
waters. We met with only partial success in the Supreme Court's 
ruling.
    The Supreme Court's rulings in Rapanos and the earlier 2001 
SWANCC case unsettled a three decade long bipartisan consensus 
in all of the branches about what sorts of protections should 
be afforded to America's waters. If you look closely at the 
decisions, neither decision required the agencies to forego 
protecting significant categories of water bodies. 
Nevertheless, the administrative and judicial fallout has been 
significant. There have been significant losses now of the 
sorts of waters protected.
    The complicated 4-1-4 alignment of Justices in Rapanos has 
engendered uncertainty in the courts and in regulatory 
settings. Under the most charitable read you can give the 
Rapanos case, its net effect is still problematic. It 
substitutes a new case by case judicially monitored significant 
nexus test in place of a longstanding deferential approach 
allowing regulators to exercise ecological and scientific 
judgments in assessing what should be protected.
    The issues at stake in Rapanos and the issues before you 
today are fundamental. What counts as a water of the United 
States is the key prerequisite to a host of different Federal 
Clean Water Act protections. This is not just an issue of 
wetlands, and it is not just about dredge and fill activities. 
If a water is not jurisdictional, then the Clean Water Act's 
protections are lost. Such waters would no longer be subject to 
the protections against and regulation of industrial discharges 
under Section 402 of the Clean Water Act. Oil spills under 
Section 311 of the Clean Water Act would no longer be subject 
to Federal jurisdiction. And then of course, Section 404's 
wetlands protections would be lost.
    As witnesses Curry and Yaich have explained well, rivers, 
streams, lakes, ponds and wetlands serve crucial functions, 
even when they are small and even when their relationship to 
the remainder of the aquatic system is not immediately 
apparent. The protection of America's waters, if critical; the 
cost to clean up America's waters is exorbitant. The bottom 
line is it makes great fiscal sense and environmental sense to 
protect America's waters. These longstanding protections are 
now in limbo. The current situation is really not acceptable. 
Everyone agrees the Clean Water Act has been a resounding 
success, and that is good to hear. But that doesn't mean it 
should remain unchanged. When you consider the on-the-ground 
impact of these two decisions and regulatory responses, there 
can be no serious question whether the Act has been weakened 
since 2001: it has.
    The Supreme Court has unsettled this bipartisan, three 
decade long approach in three important ways. First, it has 
undercut this broad, shared view of what should count as 
waters, thus physically removing many waters from protection, 
especially after the SWANCC decision just referred to. It has 
fostered a confusing regulatory and jurisprudential mess, 
leading to splintered judicial approaches, regulatory 
interpretative uncertainty, delay, regulatory inattention and 
inertia.
    My timer is not on but----
    Senator Boxer. Go right ahead you have a minute left.
    Mr. Buzbee. OK, thank you. It has also substituted judicial 
views of policy that either downplay or ignore the Clean Water 
Act's integrity goals and disregard earlier Supreme Court 
precedents and eliminate longstanding deference.
    So as I see it, there are four options before this 
Committee. One option is to do nothing. And I think that is 
really not an option--there are real harms on the ground 
happening every day. The second option is just to allow 
litigation and skirmishing before agencies to continue. That is 
also not an option. This is costly, uncertain, leading to 
splits in the circuits and delay. I have spoken to regulatory 
attorneys for industry who have talked about the difficulties 
post-Rapanos in just trying to get jurisdictional 
determinations. Now this delay is killing their businesses.
    Option three is to implore regulators to fix this mess. 
Unfortunately, the Supreme Court's ruling was a direct 
interpretation of the Clean Water Act and has been interpreted 
by pretty much everyone as leaving limited latitude for 
regulatory correction.
    The fourth option is to pass a law, such as the Clean Water 
Restoration Act. While I know today's hearing is not about 
that, I will briefly just sketch out the case for some sort of 
legislative fix. If there is to be a fix, it should be direct, 
it should be limited. This is just about what counts as a water 
of the United States. You don't need to unsettle the whole 
statute and so therefore, as in the Restoration Act bills I 
have seen, or the versions I have seen, changing a definition 
of the waters and returning those definitions to what has long 
been the regulatory interpretation makes great sense.
    In addition, in contrast to some of the earlier witnesses, 
if you look at the entire history of the Clean Water Act----
    Senator Boxer. Just finish your sentence.
    Mr. Buzbee [continuing].--it has long been understood that 
the Clean Water Act should be protecting waters to the extent 
ecologically necessary and also to the limit of constitutional 
power. I hope that the Senators will consider a bill such as 
this in the future.
    Thank you very much.
    [The prepared statement of Mr. Buzbee follows:]

      Testimony of William W. Buzbee, Professor of Law, Director, 
  Environmental and Natural Resources Law Program, Emory Law School, 
      Director, Center on Federalism and Intersystemic Governance

    My name is William Buzbee. I am a Professor of Law at Emory 
University School of Law, where I am director of Emory's 
Environmental and Natural Resources Law Program. I am pleased 
to accept this Committee's invitation to testify regarding the 
status of the Clean Water Act in light of the Supreme Court's 
decisions in Solid Waste Agency of Northern Cook County v. U.S. 
Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC) and the 
Supreme Court's ruling in United States v. Rapanos, 126 S. Ct. 
2208 (2006). Since that time, the judicial and regulatory 
treatments of these cases and the earlier related United States 
v. Riverside Bayview Homes, 474 U.S. 121 (1985), have revealed 
an increasingly confused body of law. These cases, and 
resulting confusion, have reduced the protections afforded to 
America's waters. In addition, proposed legislation, The Clean 
Water Restoration Act of 2007 (hereinafter ``the Restoration 
Act'') is an important piece of legislation worthy of support. 
The Restoration Act offers, through a limited amendment of the 
Federal Water Pollution Control Act (known as the Clean Water 
Act (CWA), a means to restore protections long provided to 
America's waters, as well as greatly reduce legal uncertainty 
and attendant litigation resulting from the somewhat uncertain 
intersection of these three important cases. In my testimony, I 
will review these recent developments, ending with my 
preliminary, brief assessment of The Restoration Act.


                     i. related witness background


    This is not my first involvement with the Supreme Court's 
interpretations of what is protected as a ``water of the United 
States'' under the CWA. As a result of my work on environmental 
law and federalism, I served as co-counsel for an amicus brief 
filed in Rapanos on behalf of a bipartisan group of four former 
Administrators of the United States Environmental Protection 
Agency (EPA). Those former US EPA Administrators included 
Russell Train, who served under Presidents Nixon and Ford, 
Douglas Costle, who served under President Carter, William 
Reilly, who served under the first President Bush, and Carol 
Browner, who served under President Clinton. Despite their 
different party backgrounds and years of service, all four 
shared the same views about the importance of retaining 
longstanding protections of America's waters.. Their brief was 
aligned in Rapanos with the Bush administration, several dozen 
states, many local governments, and an array of environmental 
groups. All asked the Supreme Court to uphold longstanding 
regulatory and statutory interpretations protecting wetlands 
and tributaries from dredging and filling regulated under 
Section 404 of the Clean Water Act and from direct pollution 
industrial discharges under Section 402 of the Clean Water Act 
and its National Pollutant Discharge Elimination System (NPDES) 
program. After the Court's ruling in Rapanos, I testified 
during the summer of 2006 before the Fisheries, Wildlife, and 
Water subcommittee of this Committee on Environment and Public 
Works about the implications of the Rapanos decision.
    Earlier in my legal career, I counseled industry, 
municipalities, states and environmental groups about pollution 
control strategies and choices under all of the major Federal 
environmental laws. As a scholar, I have written extensively 
about related issues, with a special focus in recent years on 
regulatory federalism, especially environmental laws and their 
frequent reliance on overlapping Federal, State and local 
environmental roles. My publications have appeared in Stanford 
Law Review, Cornell Law Review, NYU Law Review, Michigan Law 
Review, University of Pennsylvania Law Review, and in an array 
of other journals and books. A related book on risk regulation 
and federalism focusing on preemption policy choice will be 
published by Cambridge University Press in 2008. I have taught 
at Emory since 1993, but also visited at Columbia and Cornell 
Law Schools.


                             ii. the stakes


    It is critical to understand that the Supreme Court's 
construction of the Clean Water Act and what is protected as a 
``water of the United States,'' and Congress's and agencies' 
responses to those decisions, determine not just where dredging 
and filling can occur beyond the reach of Federal law, but also 
whether industrial pollution discharges can escape regulation. 
What count as protected ``waters'' is not about some peripheral 
issue of outlandishly expansive stretching of Federal 
regulation, as opponents of the CWA and the recently proposed 
Restoration Act often claim in near parodies of reality. The 
Clean Water Act's protections, and the protections against oil 
spills, are all implicated here. Only protected ``waters of the 
United States'' are subject to the protections of CWA Section 
301 (the general prohibition against point source discharges of 
pollution into waters without a permit), Section 402 (the 
Federal industrial pollution discharge permit program), Section 
404 (the dredge and fill provision critical to protection of 
wetlands and other waters), and oil spill provisions in Section 
311. If the CWA's jurisdiction does not reach particular 
waters, they are lost from Federal CWA protection. Unless 
subject to some other statutory constraints, polluters could 
pollute with impunity. Make no mistake, the issue of what 
waters are protected is critical to the whole functioning of 
the CWA. The problem faced now is that two Supreme Court 
decisions since 2001 that construe the CWA have unsettled long-
established regulatory interpretations, removed many waters 
from Federal protection, and created substantial regulatory 
uncertainty. The resulting environmental harms are real.
    Certainly there are core protected waters beyond dispute. 
But once one moves to wetlands and tributaries, feeder streams, 
headwaters of America's precious rivers, and vast swaths of the 
country where heat and drought leave river and stream beds 
empty for parts of the year, then what are protected waters 
becomes critical. The Supreme Court's decisions have left many 
waters unprotected, or at least created regulatory uncertainty 
about what is protected. If, for example, an Arizona stream bed 
is not federally protected, it can be filled or be a dumping 
ground for industrial discharges, even if during periodic heavy 
rains that stream will then carry pollutants downstream or be 
blocked by newly unregulated filling activities. This is not a 
hypothetical worst case: In public comments on a regulatory 
guidance in 2003, Arizona estimated that up to ninety-five 
percent of its stream miles are intermittent or ephemeral. 
Uncertainty created by the Supreme Court's recent decisionmake 
vulnerable unprotected water supplies in areas where water is 
most precious.


     iii. rapanos, swancc, and the need for a legislative response


    Two important recent Supreme Court CWA cases about what 
count as protected waters of the United States have unsettled 
three decades of regulatory protections provided by the CWA. 
Those protections were embraced and even strengthened by both 
Republican and Democratic administrations over the years. This 
section of my testimony first briefly sketches out those 
longstanding, bipartisan views about the CWA's reach. I then 
turn to analysis of the two cases that unsettled these 
longstanding regulatory protections: Solid Waste Agency of 
Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 
531 U.S. 159 (2001), and the Court's splintered 2006 decision 
in Rapanos, 126 S. Ct. 2208 (2006).
    a. The Bipartisan, Three Decade Protection of Waters of the 
U.S.
    Despite disagreement about the implications of Rapanos, 
virtually all commenters on the CWA agree that it has led to 
huge improvements in the quality of America's waters. By 
design, the CWA created a Federal floor of protection, giving 
states and local governments the power to be more protective, 
and also involving states in the implementation and enforcement 
process through delegated program structures.
    Much of this success is attributable to expansive 
definitions of what count as, and are hence protected as, 
jurisdictional waters of the United States. Although the CWA 
speaks of ``navigable waters,'' that term has since 1972 been 
defined in the statute as meaning ``waters of the United 
States.'' Those 1972 amendments of what is now called the Clean 
Water Act stated the goal ``to restore and maintain the 
chemical, physical, and biological integrity of the Nation's 
waters.'' 33 U.S.C. Sec. 1251(a). To that end, the statute 
required discharges into waters to be prohibited unless allowed 
by a permit. Since 1972, and as now agreed by all members of 
the Supreme Court and repeatedly reaffirmed in the Court's last 
three major CWA cases concerning what is protected as a 
``water,'' the law clearly protects waters that are not 
navigable in the usual sense of that term; they need not be 
``navigable in fact'' by shipping.
    It has also long been part of the legislative, regulatory, 
and judicial history of the 1972 CWA that it was intended to 
protect waters to the limit of Federal legislative power under 
the Constitution. The House and Senate in 1972 reports both 
stated the intent to give the term ``waters'' its ``broadest 
possible constitutional interpretation,'' 40 Fed. Reg. 19,766 
(May 6, 1975) (citing S. Rep. No. 92-1236, at 144 (1972); H. 
Rep. No. 92-911, at 131 (1972), statements that the Supreme 
Court and lower courts long recognized when confronted with 
challenges to Federal jurisdiction.
    Regulatory interpretations of what count as waters was 
unsettled and litigated for the first few years after enactment 
of the 1972 CWA. By the mid-1970's, however, an expansive 
interpretation of what waters are protected was promulgated and 
strengthened up until the Supreme Court's cutting back on the 
CWA's reach in SWANCC. As Republican appointee and former U.S. 
EPA Administrator William Ruckelshaus recently stated in a 
letter to Representative James Oberstar in connection with 
hearings regarding the proposed Clean Water Restoration Act, 
EPA's regulatory interpretation of waters has long included 
``interState and intraState waters'' and covers ``non-navigable 
tributaries and wetlands.'' (Letter of July 17, 2007). As 
another past Republican U.S. EPA Administrator, Russell Train, 
stated, ``a fundamental element of the Clean Water Act is broad 
jurisdiction over water for pollution control purposes. It has 
been well-established that water moves in interrelated and 
interdependent hydrologic cycles and it is therefore essential 
that pollutants be controlled at their source to prevent 
contamination of downstream waters.'' (Letter of July 17, 2007 
to Representative James Oberstar). Similarly, former Republican 
U.S. EPA Administrator under the first President Bush, William 
Reilly, recently stated: ``Since the Clean Water Act passed, 
U.S. courts and regulatory agencies have consistently complied 
with Congress' intent by interpreting the term `navigable 
waters' to cover all interconnected waters, including non-
navigable tributaries and their adjacent wetlands, as well as 
other waters with ecological, recreational, and commercial 
values, such as so-called `isolated' wetlands and closed-basin 
watersheds common in the western United States.'' (Letter of 
July 6, 2007 to Representative James Oberstar). Democratic EPA 
Administrators concur. EPA Administrator Carol Browner, who 
served under President Clinton, recently expressed concern in 
written testimony with lost protections and regulatory rollback 
following the Rapanos decision. (July 19, 2007 Testimony of 
Carol M. Browner Before the Transportation and Infrastructure 
Committee, U.S. House of Representatives).
    These understandings of CWA law and regulations are 
confirmed by the long-standing, explicit provisions of 
regulations regarding what are protected as waters. 40 C.F.R. 
230.3; 33 U.S.C. 328.3(a). Even in the fiercely litigated cases 
leading to the Rapanos decision, this bipartisan political 
consensus about the importance of protecting a broad definition 
of waters held together. The Bush administration and the 
Solicitor General argued hard in briefs and before the Supreme 
Court for retention of the protections provided for three 
decades, regardless of the party in power in the White House or 
in the legislature.
    b. The Supreme Court's Unsettling of the Bipartian Three 
Decade Consensus
    In SWANCC, the Supreme Court in 2001 rejected the Federal 
Government's attempt to protect isolated waters from fill due 
to their use by migratory birds, as prohibited under an 
interpretive document referred to as the Migratory Bird Rule. 
The Court gave the Clean Water Act a limiting read, overcoming 
the usual deference to agency statutory interpretations, due to 
the Court's concerns that protecting isolated waters due to use 
by migratory birds would go too far and be at the limit of 
Federal power. The Court therefore found that such regulation 
was not intended by Congress in 1972. Importantly to 
constitutional arguments about the Restoration Act, the Court 
did not declare the statute unconstitutional, or even flesh out 
why the asserted jurisdiction was asserted to be at the bounds 
of Federal power, but instead said a statutory clear statement 
was needed to justify Federal protection of such waters. The 
Court basically punted on the question of the statute and 
exactly why and whether SWANCC presented a constitutional 
problem, acknowledging the issue but not resolving the validity 
of grounds for Federal power argued before the Court. It 
ultimately concluded that because the statute did not clearly 
State an intent to reach isolated waters that could be used by 
migratory birds, the Court would (and did) hold that the CWA 
did not reach the waters at issue in the case. By eliminating 
such ``isolated waters'' protected due to use by migratory 
birds from Federal protection, huge amounts of previously 
Federal waters are no longer subject to protection under the 
CWA. As mentioned below, it appears that regulators in the Army 
Corps and U.S. EPA have overly expansively read SWANCC, more 
generally ceasing to protect isolated waters despite the 
Supreme Court's more limited rejection of the migratory bird 
jurisdictional justification and the presence of other CWA 
regulatory provision that could protect isolated waters.
    Rapanos presented different sorts of challenges. It too 
involved what ``waters'' are protected, but overlapped 
substantially with the earlier United States v. Riverside 
Bayview Homes case, 474 U.S. 121 (1985), where a unanimous 
Supreme Court protected wetlands adjacent to ``lakes, rivers, 
streams, and other bodies of water . . . .'' In Riverside 
Bayview, the Court focused overwhelmingly on the CWA's goals, 
the biological and ecological functions served by such wetlands 
and waters, and the difficulty in ``choos[ing] some point at 
which water ends and land begins.'' Given this difficulty, the 
need to consider hydrological connections, and the law's anti-
pollution goals, the Court deferred to the Army Corps' 
judgments.
    Rapanos involved related questions of what sorts of 
tributaries and wetlands that are not ``navigable in fact'' are 
reached by the CWA. The reconfigured Supreme Court, with newly 
appointed Chief Justice Roberts and Justice Alito, produced a 
series of opinions in Rapanos. No single majority opinion 
speaks for five or more justices in this case. No five justice 
majority, in an opinion or in shared opinion rationales, 
rejects these long-established protections of America's waters. 
Rapanos undoubtedly, however, makes for tough legal analysis 
and a confused legal terrain.
    Due to the lack of a single majority opinion, we 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 the 
two consolidated cases leading to the Rapanos decision, 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 four dissenters to the remand 
judgment disagreed with Justice Kennedy's call for case by case 
significant nexus analysis. The did, however, overwhelmingly 
agree with the sorts of waters stated by Justice Kennedy to 
deserve protection.
    Working with a 4-1-4 Court breakdown, with a judgment and 
majority rationales cutting in different directions, does 
present a challenge. As discussed below, it has led to 
confusion in the courts and a regulatory guidance that appears 
illegally narrow. Counting heads and parsing Rapanos and the 
Court's other major ``waters of the United States'' decisions, 
there actually should be a fair bit of remaining clarity, but 
in application confusion has reigned. Among the views of the 
law that should be broadly agreed upon, but have actually 
divided courts and regulators, are the following: 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. Indeed, Riverside Bayview Homes explicitly upheld them, 
SWANCC concerned an interpretive extension of those 
regulations, and Rapanos involved ``as applied'' challenges to 
Federal jurisdiction and no five justice majority struck down 
any of the underlying regulations. A majority of justices also 
are sticking with the lack of Federal protection for isolated 
wetlands reached due to migratory bird use, as the Court 
concluded in SWANCC. In Rapanos, five justices rejected 
expansive arguments about SWANCC and arguments seeking to 
further limit Federal constitutional power.
    So how do we interpret this 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, except to the 
extent his crabbed view of the CWA might protect waters 
otherwise not protected by Justice Kennedy's concurrence. 
Relying heavily on a dictionary created over a decade before 
the statutory language at issue, Justice Scalia and his fellow 
plurality justices (Chief Justice Roberts, and Justices Scalia, 
Thomas, and Alito) read the CWA to reach only ``relatively 
permanent, standing or continuously flowing bodies of water,'' 
and exclude areas where water ``flows intermittently or 
ephemerally, or channels that periodically provide drainage for 
rainfall.'' This view, had it been adopted by a Court majority, 
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). This Justice Scalia plurality opinion hence 
garnered only three additional votes for its severely limiting 
view of what can be protected as a Federal water.
    Nevertheless, in articulating the sorts of waters the 
plurality would protect, the plurality justices joining Justice 
Scalia's opinion do describe certain sorts of waters that could 
potentially not be protected by Justice Kennedy's generally 
more expansive view of what waters are subject to Federal 
jurisdiction. The dissenters, in an opinion by Justice Stevens, 
noted this possibility and thus said that both Justice 
Kenendy's and Justice Scalia's waters are protected: ``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.''
    Justice Kennedy's opinion concurring in the judgment 
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.
    As now agreed upon by the Department of Justice, the Army 
Corps and EPA, and several (but not all) courts that have 
confronted the issue, 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 explicit focus on ``chemical, physical and 
biological 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.''
    Under the Kennedy opinion, 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 
joined by three 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.
    Nevertheless, Justice Kennedy's opinion is problematic. 
Most significantly, his significant nexus test often calls for 
intensive case by case, water by water, analysis for Federal 
jurisdiction to be upheld. Thus, while he gives some weight to 
regulatory judgments and calls for deference, his concurrence 
does unsettle three decades of regulatory judgments long 
implemented and enforced by the Army Corps and U.S. EPA.
    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 establish on a case by case basis the nexus test he 
articulates.
    Last, 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. We today see similar arguments 
leveled against the Restoration Act. 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 testimony before the Senate Environment and Public Works 
Subcommittee on Fisheries, Wildlife, and Water, and in follow-
up questions from the Senators, I offered fairly extensive 
additional analysis for why Justice Kennedy's opinion, as well 
as any additional waters possibly protected by Justice Scalia's 
opinion, both are now protected. As Justice Stevens noted in 
his dissent, both sorts of waters command majority support of 
the Supreme Court. Since that testimony and responses to 
questions are now part of the public record, I will not go 
further into this issue except to note, as I do below, that the 
Court's fragmented opinions have led to lower court and 
regulatory confusion, rollback, and arguable error.


                   iv. the need for a legislative fix


    a. Post-Rapanos Judicial Confusion
    Most Courts confronting issues of what waters are protected 
post-Rapanos have found that at least waters protected by 
Justice Kennedy's opinion are subject to Federal jurisdiction, 
but not all courts have agreed with the assertion by Justice 
Stevens in dissent and the Bush administration Department of 
Justice that both waters protected by Justice Kennedy and by 
Justice Scalia are protected under the CWA. A few courts have 
appeared to view Justice Scalia's opinion as most important. 
Most courts and scholars agree that generally Justice Kennedy's 
``significant nexus'' test protects waters the Justice Scalia 
plurality would protect, but there remains a possibility that 
in some instances the plurality's focus on continuous 
connections and continuous flowing waters would protect some 
waters not reached by Justice Kennedy.
    But disagreement remains, with resulting confusion for the 
private sector, regulators working in each jurisdiction, and 
uncertain effects on the environment. One district court in 
Texas, shortly after the Rapanos decision, found Justice 
Kennedy's opinion too confusing, appeared to follow the Scalia 
plurality opinion's approach and earlier court of appeals 
precedent, and found Federal law not to reach oil spillage into 
a stream bed because it was dry part of the year.
    Of perhaps greater significance is the Eleventh Circuit's 
recent decision in United States v. Robison, 2007 WL 3087419 
(11th Cir. Oct. 24, 2007). In almost every respect, that 
decision reveals the disastrous effects of the Supreme Court's 
recent decisions. The decision bottom line is that convictions 
for egregious violations of industrial pollution discharge 
permit requirements under Section 402 of the CWA were vacated 
and remanded due to court questions about the link of the 
receiving waters of Avondale Creek and downstream ``navigable 
in fact'' waters. There is no indication in the decision that 
the industrial polluter, the McWane foundry, had ever before 
claimed it did not need a NPDES permit, but the court read 
Rapanos to call into question the reach of Federal power. The 
court reached this remarkable decision due to its read of 
Rapanos. It read Justice Kennedy's opinion as the lone relevant 
opinion, disagreeing with some other circuits' conclusions and 
DOJ briefs arguing that both Justice Kennedy and Scalia waters 
are protected. As the Eleventh Circuit conceded, this mattered 
because the continuous water connections would likely have been 
easily reached by the Justice Scalia plurality opinion. The 
court struggled most in trying to apply the ``significant 
nexus'' test. It ultimately remanded due to its uncertainty 
about Federal jurisdiction over Avondale Creek and waters into 
which this substantial creek flowed. This opinion is likely in 
error in reading Justice Kennedy, since Justice Kennedy talks 
about certain sorts of waters as presumptively covered without 
the need for case-by-case proof, but the case demonstrates the 
confusion and harms sown by Rapanos. A long, costly criminal 
proceeding involving egregious violations and massive 
industrial discharges will need to be retried, and these 
violations may go unremedied.
    District Court Judge Robert Propst, upon receiving the case 
on remand, sought to be released from further work on the case. 
In utter exasperation and a fair bit of humor, he detailed the 
many ways in which, in his estimate, the Supreme Court and then 
the 11th Circuit have left the law in an incoherent mess. He 
closing by asking a series of seven questions about where the 
law stands post-Rapanos, each of which is subject to debate. He 
then coins the phrase ``justsurdity'' to capture with a 
neologism ``areas of the law which help to attain justice, but 
appear to be absurd when considered in light of common sense.'' 
The justsurdity noted (and coined) by Judge Propst has 
unsurprisingly led to regulatory uncertainty and arguably 
illegal rollback of the CWA's protections. b. Post-Rapanos and 
SWANCC Regulatory Confusion and Rollback
    The disparate approaches by lower courts means that 
regulators seeking to acquiesce in the law of each circuit will 
need to try to apply their circuit's particular read of 
Rapanos. Disparities in what waters will be protected around 
the country will necessarily result. The CWA's longstanding 
goal to create a level environmental playing field for industry 
and the states has been frustrated.
    In addition, a June 2007 interpretive guidance issued by US 
EPA and the Army Corps post-Rapanos generally parrots the DOJ's 
briefing position that both waters protected by Justices 
Kennedy and Scalia are within Federal jurisdiction, but it also 
in several places seems to cut back on those protections. This 
guidance is still in the comment phase, but its initial version 
reveals serious problems.
    In particular, Justice Kennedy's concurrence focused a 
great deal on the CWA's integrity goals, as well as the need to 
protect waters that in combination with other similar or 
comparable waters would have a significant effect. The recent 
interpretive guidance largely omits reference to these 
``combination'' waters, potentially removing from Federal 
jurisdiction huge numbers of smaller similarly situated waters 
that in combination and in their cumulative impacts are 
critical to downstream water quality and quantity. 
Environmental groups in their comments question the legality of 
the guidance, asserting that by ignoring or deemphasizing these 
protective elements of Justice Kennedy's opinion, and failing 
to give weight to still effective regulations about protective 
waters, the guidance exceeds the bounds of the Army Corps' and 
EPA's interpretive discretion.
    In comments on this draft guidance, among the many critics 
were Army Corps employees with the job of making such 
jurisdictional determinations. Their comments reveal that the 
Supreme Court's Rapanos decision and the guidance have added up 
to a recipe for delay, confusion, frustration of those seeking 
permits and regulators, and ultimately regulatory inattention. 
One employee estimated the guidance has quadrupled the time 
needed to make a jurisdictional call and left the 
jurisidictional lines in ``100 shades of gray.'' Another said 
the guidance ``creates a lengthy, confusing, and complicated 
jurisdictional determination form'' that ``no one really 
understands.''
    Similarly, since SWANCC, it appears that in considering 
more isolated sorts of waters, the Army Corps has expanded upon 
SWANCC's limited rejection of Federal power to protect isolated 
waters due to their use by migratory birds. It appears that 
some regions and perhaps the central Army Corps and EPA offices 
no longer even consider protecting isolated waters arguably 
protected under other regulatory rationales, even though they 
have the legal authority and responsibility to do so. This was 
confirmed recently in testimony before the House Committee on 
Transportation and Infrastructure on October 18, 2007 by Ben 
Grumbles, EPA's Assistant Administrator for Water. In response 
to questions from the Committee, Assistant Administrator 
Grumbles said:
    Well, there are two guidances that we are working under, 
the 2003 SWANCC guidance and the basic point there is in the 
guidance we held open the possibility that there could be 
circumstances under A.3 paragraphs of our regulations where 
there could be an assertion of jurisdiction over isolated 
intraState non-navigable waters without relying on the 
migratory bird rule provisions. As a legal matter, that is 
still possible, but as a practical matter, we had not asserted 
jurisdiction over those types of wetlands based on that 
guidance, which is still in place. (emphasis added)
    This concession is important. As stated by Assistant 
Administrator Grumbles, after SWANCC and Rapanos, the agencies 
are not protecting waters in accordance with regulations still 
in effect. They thereby are leaving unprotected an even larger 
universe of streams, wetlands, and other waters than required 
by the Court's decisions in SWANCC and Rapanos.
    All of this uncertainty gives opponents of CWA jurisdiction 
an array of newfound arguments. It creates the near promise of 
litigation. This will predictably lead to agency reluctance to 
get mired in lengthy regulatory disputes and litigation. Unless 
an environmental group is nearby and ready to litigate, Army 
Corps and US EPA officials will be tempted to avoid conflict 
and find no Federal jurisdiction.
    Thus, the regulatory bottom line is that far fewer waters 
are protected, uncertainty is rife about what waters are 
officially protected, regulators will be tempted to decline 
jurisdiction, and lots of litigation will result.


        v. the clean water restoration act's logic and legality


    Since my involvement with the Rapanos case and as part of 
my teaching and writing about environmental law, I have closely 
followed related regulatory and legislative developments. This 
fall, I've closely been studying the Clean Water Restoration 
Act, in both its House and Senate versions. For reasons I 
briefly address here, I believe the Restoration Act is sound 
and could help return the law to the definitions of waters 
protected for three decades by Republicans and Democrats alike.
    a. Restoring longstanding bipartisan regulatory protections 
makes sense
    The Restoration Act starts with extensive findings about 
the importance of America's waters and a finding about the 
commercial ``substantial effects'' of waters, as well as a 
reference to the sorts of economic, commercial activities 
causing the degradation of waters of the United States. Its key 
provision eliminates the use of the word navigable, 
substituting the longstanding definitional clause ``waters of 
the United States.'' It then mentions the sorts of waters long 
protected under CWA regulations. It does not delete or modify 
other provisions. It really is a focused, direct, legislative 
amendment making statutory the longstanding regulatory 
definition of the sorts of waters protected by the CWA. The 
categories of waters have been subject to similar protections 
under regulations in place since the late 1970's, regulations 
retained and implemented by both Republican and Democratic 
administrations since that time. It is also important to recall 
that the Bush administration in the Rapanos case argued for 
retention of those longstanding regulatory protections. Recent 
scientific publications confirm that the scientific basis is 
strong for the regulatory conclusion that tributaries, streams, 
wetlands and other waters far removed from navigable-in-fact 
waters perform significant ecological services, thereby 
protecting waters for valuable economic, commercial and 
recreational purposes.
    This Act also does not by its terms undo the many statutory 
and regulatory sources of flexibility and exceptions long 
established under the CWA. These sources of flexibility tend to 
focus on particular sorts of activities. If waters lost from 
protection post-SWANCC or Rapanos are again subject to 
jurisdiction, it might bring some unscrutinized activities and 
linked waters back under Federal oversight, but the Restoration 
Act does not itself change in any categorical way the treatment 
of such activities.
    As a matter of sound environmental policy, the longstanding 
protections sought to be revived in the Restoration Act have 
been invaluable. Even the well-funded opponents of the 
Restoration Act depend in businesses, personal lives, and 
recreation, on the existence of clean water. America's usually 
abundant potable water, except when excessively polluted, is 
perhaps our greatest resource and comparative advantage over 
rising economies around the world. Our chief economic 
competitors continue to struggle to remedy gross pollution 
harms and lack of safe water. Clean, unpolluted waters and 
preserved wetlands also remain critical to filter contaminants, 
provide natural habitat and biodiversity, and provide a buffer 
for storm harms. America's hugely profitable hunting, fishing 
and recreational tourism industries depend on preserving 
America's waters. Businesses will at times hope to escape 
regulation and maximize profits, but long-term, all benefit 
from America's clean waters. America's long commitment to clean 
water is crucial.
    b. Broad language about constitutional power is necessary
    In some comments and letters, critics of the Restoration 
Act have claimed that its provisions referring to the 
constitutional reach of the Act are in some way 
constitutionally problematic. With all due respect to those 
critics, I believe these arguments are based on a misreading of 
the Restoration Act, constitutional law, and key CWA case 
precedents.
    First, several provisions of the Restoration Act directly 
seek to make clear the intent to protect waters of the United 
States to the limits of Federal legislative power. Most 
significantly, Section 4, in proposing to amend Section 
502(24), states that the sorts of waters protected means ``all 
waters [then specified waters are listed] . . . to the fullest 
extent that these waters, or activities affecting these waters, 
are subject to the legislative power of Congress under the 
Constitution.''
    This links to Section 2(3)'s statement of purposes, which 
states the purpose: ``To provide protection to the waters of 
the United States to the fullest extent of the legislative 
authority of the Congress under the Constitution.''
    The findings provisions further provide linked language, 
stating in Section 3(8) that: ``The pollution or other 
degradation of waters of the United States, individually and in 
the aggregate, has a substantial relation to and effect on 
interState commerce.'' Sections 3(9) to 3(12) further spell out 
these important water uses and values. Relatedly, Section 3(13) 
finds that ``activities that result in the discharge of 
pollutants into waters of the United States are commercial or 
economic in nature.'' Later provisions State that the 
Restoration Act is a ``necessary and proper means'' of 
implementing various treaties and protecting Federal lands
    First, there is nothing inherently constitutionally 
problematic about Congress in legislation stating its intent to 
legislate to the limit of Federal legislative power. After 
SWANCC and a number of other cases from recent decades where 
the Supreme Court and other courts have used ``clear 
statement'' requirements as a means to limit the reach of 
Federal law, such language is actually essential. If Congress 
wants to restore the CWA's protections, the most effective 
means to avoid limiting judicial constructions is to State 
clearly the intended reach of Federal power.
    These provisions do not, however, result in making Federal 
power effectively limitless. All of these provisions 
specifically reference ``these waters,'' which in turn refers 
back to the sorts of waters specified in Section 4. By 
eliminating the word ``navigable,'' Congress also makes clear 
that the CWA continues not to have as a focus navigation and 
shipping sorts of usages, but anti-pollution goals. Hence, when 
waters or activities affecting those waters have the sorts of 
linkages justifying Federal legislative power, then they will 
be jurisdictional. Such specificity was not needed in 1972 or 
earlier, when the Supreme Court showed greater deference to the 
legislature, and when ``clear statement'' driven statutory 
interpretations were less common. In addition, at that time a 
statement about the intended constitutional reach could be put 
in legislative history and respected by courts, as it was in 
the case of the CWA (and discussed earlier in my testimony). 
Many courts today would be unlikely to give weight to a 
legislative history statement.
    This language is especially necessary in light of SWANCC 
which, while not making any declaration of unconstitutionality, 
did give the CWA a limiting read due to somewhat unspecified 
constitutional concerns, in part driven by the Court's 
attention to the word ``navigable'' and other provisions 
preserving and enlisting states to play ongoing roles in 
protecting America's waters. This Act addresses those concerns 
and removes the statutory hooks used by the majority in SWANCC. 
Four justices used similar interpretive moves in Rapanos. 
Congress must draft with cognizance of likely judicial 
reception, and in light of the reality of preceding related 
court decisions. These provisions are logical and necessary in 
light of preceding case law.
    Can Congress constitutionally reach the sorts of waters 
specified in the Restoration Act? The answer is a resounding 
yes. As a matter of constitutional law, certainly Congress can 
protect waters that themselves ``substantially affect'' 
commerce and regulate activities that are themselves commercial 
or economic or nature. After all, in the Supreme Court's major 
Commerce Clause decisions in recent years, it has focused at 
times on the thing to be protected, while at other times 
focused on the nature of the activity that would, if not 
regulated, cause harm. Hence the Court focused its Commerce 
Clause analysis in the famous United States v. Lopez case on 
whether the handgun possession at issue had an established 
commerce link. 514 U.S. 549 (1995). In the later United States 
v. Morrison case, 529 U.S. 598 (2000), the Court focused on the 
lack of a commercial aspect to violence against women. In 
SWANCC, the Court's abbreviated and partial analysis focused on 
waters themselves (the thing protected), but acknowledged, 
without resolving the question of constitutionality, that other 
``activities'' could influence its Commerce Clause 
constitutional analysis. In the Court's most thorough Commerce 
Clause analysis in the modern era, in the Hodel v. Indiana 
case, 452 U.S. 314 (1981) the Court looked at an array of ways 
Federal protections satisfied Commerce Clause requirements. A 
particularly thorough analysis of how environmental amenities 
like waters and endangered species can easily be regulated 
under our Constitution is provided by renowned conservative 
Fourth Circuit Judge J. Harvey Wilkinson in Gibbs v. Babbitt, 
214 F.3d 483 (4th Cir. 2000). He examines activities causing 
harm, the inherent economic and ecological value of the 
protected wolf, and the economic value of activities dependent 
on the ongoing existence of the wolf.
    In addition, constitutional scrutiny under the Commerce 
Clause does not focus on an act or activity or thing in 
isolation, but looks at them in the aggregate. In Gonzales v. 
Raich, 545 U.S. 1 (2006), the Supreme Court last year strongly 
reaffirmed that the test of constitutionality of Commerce 
Clause regulation looks at activities in the aggregate and 
``can regulate the entire class'' of activity, without needing 
to prove the substantiality of each exercise of enforcement 
power. The Court declined to ``excise individual applications'' 
of regulatory power: ``[w]here the class of activities is 
regulated and that class is within the reach of Federal power, 
the courts have no power to `excise, as trivial, individual 
instances of the class.' '' 545 U.S. at 22-23 (citations 
omitted). Hence, the regulation of home grown marijuana 
cultivated for medicinal purposes was found within the Federal 
commerce power. Given the aggregate importance of often small 
types of waters and possibly individually small environmental 
harms that in aggregate can be substantial, the Restoration Act 
is on sound footing.
    There remain attenuated waters and completely non-
commercial causes of harm that could, in application, be found 
beyond Federal power, but the Federal agencies have 
historically stopped short of regulating everything that 
technically could be considered a ``water.'' As stated in a 
1986 Federal Register statement found in 51 Federal Register at 
41217:
    For clarification it should be noted that we generally do 
not consider the following waters to be ``Waters of the United 
States.'' However, the Corps reserves the right on a case-by-
case basis to determine that a particular waterbody within 
these categories of waters is a water of the United States. EPA 
also has the right to determine on a case-by-case basis if any 
of these waters are ``waters of the United States.''
    (a) Non-tidal drainage and irrigation ditches excavated on 
dry land.
    (b) Artificially irrigated areas which would revert to 
upland if the irrigation ceased.
    (c) Artificial lakes or ponds created by excavating and/or 
diking dry land to collect and retain water and which are used 
exclusively for such purposes as stock watering, irrigation, 
settling basins, or rice growing.
    (d) Artificial reflecting or swimming pools or other small 
ornamental bodies of water created by excavating and/or diking 
dry land to retain water for primarily aesthetic reasons.
    (e) Waterfilled depressions created in dry land incidental 
to construction activity and pits excavated in dry land for the 
purpose of obtaining fill, sand, or gravel unless and until the 
construction or excavation operation is abandoned and the 
resulting body of water meets the definition of waters of the 
United States (see 33 CFR 328.3(a)).
    To summarize, Congress can certainly State its intent to 
legislate on a particular subject (here, specified waters) to 
the limits of its constitutional powers. The particular 
subjects of regulation waters of the United States and the 
usually commercial or economic activities that harm them will 
almost always easily in application pass constitutional muster. 
Congress certainly stands on a sound factual and scientific 
footing in its Findings talking about the importance of these 
waters and the sorts of activities causing them harm. This is 
especially so given the usual ability to aggregate regulated 
activities or amenities to ascertain their ``substantial'' 
nature.
    c. The Restoration Act retains longstanding CWA limitations 
and flexibility
    In addition to the reality of just discussed presumptive 
carveouts from Federal jurisdiction, it is important to recall 
that the CWA has long had numerous provisions and 
interpretations rendering it quite flexible and effective in 
avoiding regulation of de minimis harms. As the current drafts 
of the Restoration Act reaffirm, the CWA explicitly carves out 
a substantial number of activities from the reach of the law. 
There is also the longstanding general or ``nationwide'' permit 
provisions that presumptively allow certain types of activities 
to proceed, typically upon mere notification to regulators and 
absent a regulatory objection. The statute and regulations 
promulgated pursuant to it also allow wetlands protections and 
Section 404's strongly protective dredge and fill provisions to 
be sidestepped in some settings with replacement of lost 
wetlands through mitigation banking or compensation. Perhaps 
most importantly, the mere finding of jurisdiction does not 
mean a permit denial. Many waters are subject to jurisdiction, 
but requested activity is permitted.
    d. The Savings Clause could lead to confusion
    The savings clause of the Restoration Act, Section 6, may 
make political sense as reassurance to important 
constituencies, but strikes me as unnecessary, tautological, 
and a possible recipe for litigation uncertainty. If the intent 
is to preserve some version of the status quo, it may provide 
both too much and too little.
    By referencing a series of particular currently existing 
statutory provisions as ``saved,'' the Act creates confusion. 
If those provisions remain in the law, as they do and would if 
the Restoration Act became law, then there is no need to say 
that they remain. That is evident in the law itself. Courts 
trying to make sense of this legislative choice will likely try 
to figure out a way to make it more than mere surplusage, but 
we can perhaps hope that they might see the political reality 
of statutory drafting intended to reassure.
    I am aware that some stakeholders would like specific 
reference to particular regulatory exemptions and add language 
that they remain. This is, I believe, the worst possible way to 
use a savings clause. Any regulatory interpretation or 
exemption will have a core of likely accepted meaning, but will 
also have a history of additional regulatory interpretations 
and actions in implemented settings that could be viewed as 
legally problematic. Such legal concerns can be from 
stakeholders concerned with overly broad or narrow readings of 
a statute or regulation. It is difficult to control litigation 
that would surely flow from any specified ``saving'' of some 
regulatory exemptions. It would be far better to keep the 
Restoration Act clean and avoid yet more litigation over what 
is ratified, rejected, or impliedly not saved.


                               conclusion


    The Clean Water Act's longstanding protections of ``waters 
of the United States'' reflected a bipartisan view that held 
for three decades. That bipartisan regulatory approach suffered 
two major, problematic blows in the Supreme Court's SWANCC and 
Rapanos decisions. SWANCC undoubtedly cut back on the reach of 
federally protected waters. Rapanos was more of a mixed result, 
with most Federal protections remaining and potentially 
devastating narrowing of the CWA garnering only four Supreme 
Court votes. The case, however, resulted in such a confusing 4-
1-4 alignment, with an underlying ``significant nexus'' test 
that is demanding and uncertain, that courts and regulators are 
struggling. Leaving the statute, cases and regulatory 
interpretations alone is not a viable and prudent option for 
Congress. Whether one is an environmentalist or homebuilder, 
jurisdictional uncertainty and delay are in no one's interest. 
A return to the bipartisan approaches to waters that worked for 
thirty years would be a sensible and constitutionally sound 
step for the Senate. Restoring these longstanding protections 
for America's waters makes ecological, economic, and legal 
sense.
                                ------                                


        Responses by William W. Buzbee to Additional Questions 
                           from Senator Boxer

    Question 1. The Clean Water Act prohibits discharges of 
toxic chemicals from industrial facilities such as chemical 
plants and oil refineries into our streams and rivers, under 
what is commonly known as the ``NPDES'' program.

    a) Are the decisions in SWANCC and Rapanos /Carabell 
applicable to the scope of waters protected under the NPDES 
program essentially the same as they apply to waters under the 
Section 404 program? If so, what are the implications of this?
    Response. Yes. The issue of what are protected as ``waters 
of the United States'' is relevant to far more than just 
protection of wetlands under Section 404. Industrial discharges 
under Section 402's NPDES program are subject to Federal 
regulation only if they discharge into ``waters of the United 
States.'' Similarly, the Clean Water Act's provisions regarding 
oil spills share the jurisdictional hook of a link to such 
waters, as do other important water quality provisions under 
the Act.
    The Eleventh Circuit's 2007 decision in United States v. 
Robison, 2007 WL 3087419 (11th Cir. Oct. 24, 2007), concerning 
the status of Avondale Creek and egregious NPDES permit 
violations by the McWane foundry, reveals the broad mischief 
Rapanos can cause. The 11th Circuit required the government on 
remand to establish that this fairly significant receiving 
creek satisfied the new jurisdictional tests created by 
Rapanos. For reasons I have discussed in my submitted December 
2007 testimony and earlier testimony from 2006 to this 
committee about Rapanos, I believe the court erred in saying 
that only waters protected by Justice Kennedy's ``significant 
nexus'' test are protected, but it is clear that the court is 
on sound footing in assuming that only ``waters of the United 
States'' are protected under the CWA's various provisions. I 
have heard, although not seen data on this, that some 
industrial dischargers have begun to seek release from NPDES 
permit obligations on the grounds that the Federal Government 
no longer has jurisdiction over the waters into which pollution 
flows. Further evidence of the broad import of the ``waters'' 
language is found in recent attacks by the American Petroleum 
Institute on regulations, claiming that Federal regulations 
overreach because fewer waters are now protected. This is 
evident in their briefs filed in the United States District 
Court for the District of Columbia in American Petroleum 
Institute v. Johnson and Marathon Oil Co. v. Johnson (Civil 
Action Nos. 02-2247 PLF and 02-2254 PLF).

    b.) Under Rapanos/ Carabell, if a chemical factory is 
located next to an isolated wetland or a stream that is only 
flowing at certain times of the year and, in either case, that 
water does not have a significant nexus to a traditional 
navigable water, is it your understanding of Rapanos/Carabell 
that a chemical factory could dump all of the toxic pollution 
it wants into those water bodies without any control under the 
Federal Clean Water Act?
    Yes, I believe that this is correct. I've looked around for 
recent analyses of how many industrial facilities discharge 
into intermittently flowing waters or headwaters. I believe 
that, according to EPA data, approximately 14,000 such 
facilities have been identified. Whether they are discharging 
industrial effluent, chemical facility effluent, treated 
sewage, or releases otherwise regulated by the CWA's oil spill 
provisions, the Federal Government only has jurisdiction, and 
the action is prohibited by the CWA, only if the receiving 
water is a ``water of the United States.'' Under the 
hypothetical you pose, the waters at issue would probably not 
satisfy either Rapanos test garnering majority support about 
what sorts of waters are protected. It might remain covered by 
Federal law if one could establish that a point source 
discharge into a non-jurisdictional water would flow into a 
jurisdictional water, but such a claim of jurisdiction would 
likely be litigated due to uncertainties created by the Court's 
fragmented opinions and the somewhat uncertain new tests they 
utilize.

    c.) Could the new interpretation announced in SWANCC and 
Rapanos/Carabell result in threats to Americans' drinking water 
sources?
    Shrinking protections for what count as federally protected 
``waters'' poses numerous risks to American's drinking water 
sources. Most directly, many Americans rely on private wells 
for drinking and often agricultural uses. Those wells are often 
recharged by nearby headwaters, streams, wetlands, and rivers. 
If more of these waters can be degraded with impunity from 
previously applicable Federal CWA protections, well water 
quality could be threatened. As we know from the earlier 
discussion Robison case, even fairly substantial flowing creeks 
may now escape Federal protection.
    According to EPA data, more than 100 million Americans get 
their drinking water from public supply systems that intake 
water from source water protection areas containing first order 
headwater or seasonal (intermittent/ephemeral) streams. In 27 
states, more than 1 million residents get drinking water from 
these systems. See attached, ``Table 1: State by State NHD 
Analyses of
    Stream Categories and Drinking Water Data'' (prepared by 
U.S. EPA); Letter of US EPA's Benjamin Grumbles to Jeanne 
Christie (Jan. 9, 2005) (providing data regarding extent of 
non-navigable tributaries and adjacent wetlands and linked 
drinking water systems).
    Relatedly, as New York City discussed in a brief it filed 
in the Rapanos case, cities like New York that rely on 
reservoirs for drinking water are threatened by newly 
degradable upstream waters. As New York City discussed, 
substantially increased water treatment expenses could be borne 
by cities and states if more polluted water sources require 
more costly treatment to comply with the Safe Drinking Water 
Act. Thus, drinking water is threatened and states and cities 
face increased water treatment expenses if waters, be they 
wetlands, creeks, or streams, are no longer subject to CWA 
protection.
    d.) Should it concern Congress that in many states there 
may be no legal constraints against polluting wetlands and 
intermittent streams under the Rapanos/Carabell decisions?
    Yes, although the problem is more likely to be one of gaps 
than a complete lack of any law. As I further discuss in my 
answer to Senator Inhofe's question about whether State law 
stands as a bulwark of protection if Federal law is less 
comprehensive (as he asks about in connection with Arizona 
law), if Federal law's protections under the CWA are weakened 
or disappear, states will often have neither the laws nor the 
resources to step into the breach. Most states have some sort 
of law protecting waters, but Federal law undoubtedly has long 
provided additional protections on which most states have come 
to depend.
    The CWA's weakening after Rapanos creates several sorts of 
problems and likely regulatory gaps in protection of America's 
waters.
    First, one of the paramount reasons for creation of a 
national CWA with uniform, protective provisions and 
prohibitions was to deter a destructive ``race to the bottom'' 
where states would be tempted to offer regulatory laxity to 
attract or retain business with attendant tax and employment 
benefits. If whole categories of previously protected waters 
are now possibly beyond Federal protection, states will once 
again face the difficult choice between protecting their 
environment, and pleasing businesses that may argue for lowered 
regulatory requirement and threaten to invest in other 
jurisdictions.
    Second, numerous states have enacted laws that prohibit 
their environmental regulators from adopting more protective 
regulations than required by Federal law and regulations. 
Professor Jerome Organ thoroughly analyzed this phenomenon in a 
1995 article, Limitations on State Agency Authority to Adopt 
Environmental Standards More Stringent than Federal Standards: 
Policy Considerations and Interpretative Problems, 54 Maryland 
Law Review 13T3 (1995). Recent Federal regulatory comments 
updated that study, finding that thirty states now have some 
versions of ``no more stringent'' laws. See Response to Clean 
Water Act ANPRM of National Wildlife Federation, Sierra Club, 
Earthjustice et al., April 6, 2003, at 117. In a 2006 
presentation by Indiana's environmental commissioner, he 
indicated that such constrained states are often especially 
eager for the Federal Government to remain rigorously 
protective so State environments will not suffer. See 
www.in.gov/idem/commissioner/speeches/2006/eqsc--nmst--10-30-
06.ppt
    Third, states have come to depend on a productive, 
cooperative relationship with the Army Corps and EPA in 
protecting waters. To avoid government waste and unnecessarily 
redundant State and Federal requirement, many states have 
avoided creating duplicative State law. Instead, the states 
tailor their law so it complements longstanding Federal schemes 
and requirements. They often have done so as part of assuming 
obligations to implement and enforce Federal law as provided 
under the CWA's delegated program structures. State law then 
often follows or explicitly references Federal law. For this 
reason, in Supreme Court briefs and regulatory comments, 
numerous states have not seen Federal CWA protections as a 
hindrance, but as something crucial to preserve.
    As a bipartisan group of former US EPA Administrators noted 
in their joint amicus brief in the Rapanos case, many states 
have created one streamlined and seamless regulatory process. 
This fact has been noted in regulatory comments filed in 2003 
in response to a Advance Notice of Proposed Rulemaking 
regarding interpretation and application of the SWANCC ruling 
(hereinafter ANPRM Comments). See Michigan (ANPRM Comments at 
14, 22); Delaware (ANPRM Comments at 15); and Vermont (ANPRM 
Comments at 2). Concerned with a post-SWANCC proposed rule that 
would have weakened Federal protections of waters, Montana 
objected: ``[State] programs are strengthened and supported by 
their consistency with Federal rule.'' Weakening Federal 
protections ``would remove this consistency and support, 
leaving the programs vulnerable to diminishment by local 
legislative actions.''
    Of equal significance, many states have not enacted laws or 
regulations to protect wetlands, relying instead on Section 404 
of the CWA, and supporting Federal regulatory activity under 
this provision. Such states have explicitly objected to 
weakening of Federal protection of ``waters'' due to how it 
would leave in-State wetlands vulnerable. As California stated 
in a 2003 regulatory comment:
    California has historically relied on the Corps' protection 
of wetlands under CWA section 404 and has not established an 
independent wetland permitting program. Federal abdication in 
this important field would represent a dramatic shift in 
responsibility. We are certain that it would cause irreparable 
harm to the potentially affected waters. As with many other 
states, California will not be able to comprehensively 
replicate the Corps' regulatory role in the foreseeable future 
because of its current budget crisis. It is also completely 
unrealistic to expect local planning authorities to shoulder 
this responsibility.

    Question 2. You have been involved in environmental law and 
the Clean Water Act for many years, both as a practicing lawyer 
and as a scholar. In your view, prior to SWANCC, was there any 
major problem or confusion with how the Act was being 
implemented, or were the jurisdictional requirements reasonably 
understood?
    Response. I believe that the longstanding regulatory 
protections and definitions of waters, which have remained 
overwhelmingly consistent since 1977, have long been reasonably 
understood. As with any regulatory restriction, disputes over 
application of those implementing regulations still can and has 
given rise to disputes. The applicable regulatory requirements, 
however, were quite settled until the Supreme Court's decisions 
in SWANCC and Rapanos.

    Question 3. Before SWANCC, was the Clean Water Act doing a 
good job in meeting the goal of protecting water quality? In 
your view will the SWANCC and Rapanos/Carabell decisions impact 
the effectiveness of the Act and, if so, how?
    Response. The Clean Water Act has been one of America's 
great success stories, helping transform a nation of severely 
polluted waters into a country where many streams and rivers 
are now clean enough for fishing and swimming. It is true that 
prior to the CWA, pollution into some rivers was so severe that 
rivers could and did catch fire.
    Nevertheless, the CWA coverage of pollution sources is not 
comprehensive; nonpoint source pollution is not addressed well, 
and its many provisions providing flexibility have in some 
areas reduced pollution reduction benefits. In addition, 
Section 303 surveys of impaired waters around the country 
reveal many waters that still fail to meet their designated 
uses and are not moving toward fishable and swimmable quality.
    It is hard to see how SWANCC and Rapanos can do anything 
other than impair the effectiveness of the act. SWANCC 
explicitly eliminated a large category of waters from Federal 
protection; if a water was federally protected due only to 
migratory bird use of an isolated water, then it is now not 
protected. As I discussed in my pre-hearing submitted testimony 
concerning Federal regulators' application of SWANCC, it has 
been read much more expansively than required by the case. 
Other grounds for protecting isolated waters are apparently no 
longer considered, even though the Supreme Court was assessing 
only an application of the so-called ``migratory bird'' rule. 
The confusing Court fragmentation in Rapanos, coupled with the 
inherent challenges in construing Justice Kennedy's 
``significant nexus'' test, have already resulted in disparate 
judicial treatments, industry claims of lost Federal 
jurisdiction, a guidance document that further shrinks Federal 
protections, and such a high degree of regulatory uncertainty 
that everyone involved confronts higher permitting uncertainty 
and costs. Regulators confronted with limited resources and 
time and nervous about litigation may therefore avoid close 
jurisdictional determinations. The net result will, at a 
minimum, mean reduced water protections, and regulatory and 
litigation delay.

    Question 4. What do you predict for the next few years in 
terms of litigation and administration proceedings if Congress 
does not clarify the scope of Clean Water Act jurisdiction.
    Response. As we've already seen (and as just discussed), 
more litigation, dispute-laden administrative proceedings, and 
disparate litigation standards are a virtual certainty if 
Congress does not act.
                                ------                                


        Responses by William W. Buzbee to Additional Questions 
                          from Senator Inhofe

    Question 1. If Congress changes the statutory definition, 
what legal theory supports the continued validity of existing 
regulatory exclusions for prior converted cropland and waste 
treatment systems?
    Response. Since the hearing focused on the status of the 
law after the Supreme Court's recent decisions, rather than a 
particular piece of proposed legislation, I am not positive 
what changed definition your question references. I will 
assume, however, that your question concerns an issue I have 
heard is under discussion, namely the status of current 
statutory or regulatory exclusions if Congress were to pass a 
legal amendment along the lines of the Clean Water Restoration 
Act. If, as was evident in the last version of the Restoration 
Act I have seen, a new statutory definition sought closely to 
track previous regulatory definitions of protected waters and 
make them statutory, and such a bill contained language trying 
neither to endorse nor overrule statutory or regulatory 
exclusions, then I think that is what it would likely achieve. 
The difficult task here for legislative drafters is to avoid 
inadvertently unsettling accepted exclusions, but also not 
inadvertently ratify every conceivable expansive and 
potentially illegal application of those exclusions. Thus, I 
would anticipate that core, accepted applications of the 
exclusions you reference would remain valid. Inappropriate 
stretching of those exclusions, however, would likely not 
implicitly be ratified by a bill like the Restoration Act. But 
all of this is hard to answer without knowing the exact 
legislative language you have in mind.

    Question 2. On page 4 of testimony, you quote from the 
House and Senate reports ``both stated that the intent to give 
the term ``waters'' it's broadest possible constitutional 
interpretation. The quote is actually that navigable waters be 
given the broadest possible interpretation. Isn't there a 
difference between navigable waters and waters?
    Response. As long interpreted, the statutory term of art in 
the CWA, ``navigable waters,'' has been defined as ``waters of 
the United States.'' That phrase, in turn, has been understood 
to cover all of the waters of the United States, largely as 
interpreted in regulations in place since 19T3, for EPA, and 
since 1977, for the Army Corps. As stated in legislative 
history materials, judicial opinions reflecting courts' 
(including the Supreme Court's) examination of the CWA, its 
enactment history, and the law itself, and in the regulations 
defining protected waters, the law was meant and interpreted to 
protect such waters to the limit of Federal constitutional 
power. Until the Supreme Court revived a focus on ``navigable'' 
in portions of its SWANCC decision, a focus on ``navigability 
in fact'' was largely absent. The Supreme Court in 
International Paper Co. v. Ouellette, 479 U.S. 481, 
specifically noted the CWA's ``broad and comprehensive'' scope 
that ``applies to all point sources and virtually all bodies of 
water.'' In other cases, the Supreme Court has noted that 
``[n]avigability is but part of this whole'' of the Federal 
Government's constitutional power to protect waters. United 
States v. Appalachian Power Co., 311 U.S. 377, 426-27 (1940). 
As then Justice Rehnquist wrote for the Court in Kaiser Aetna 
v. United States, 44 U.S. 164, 1T3 (1979), ``[r]eference to 
navigability of a waterway adds little if anything to the 
breadth of Congress' regulatory power over interState 
commerce.''
    These Supreme Court precedents are themselves consistent 
with the CWA's language and structure, as well as legislative 
history statements. Navigability is a defined term of art, not 
a touchstone for the limits of the CWA jurisdiction. First, the 
statute itself has an explicit goal and focus on ``chemical, 
physical, and biological integrity of America's waters.'' 33 
USC Section 1251. In sections of the CWA focused on protecting 
water quality, numerous goals are identified, with navigability 
one of numerous goals, and a subsidiary focus at that. Section 
1313(c) identifies goals of protecting public water supplies, 
protecting fish and wildlife, recreational and agricultural 
purposes, then adds a tag line ``and also taking into account 
consideration their use and value for navigation.''
    As your question references, the 1971-72 legislative 
history of the CWA contains numerous references to the CWA as 
intended to, as stated then by Representative Dingell, move 
away from the ``old narrow definitions of navigability'' to, as 
stated by a conference report, give the term ``'navigable 
waters' '' ``'the broadest possible constitutional 
interpretation.''
    It is thus unsurprising that all current Supreme Court 
Justices agree that the CWA ``includes something more than 
traditional navigable waters.'' Rapanos, 126 S.Ct at 2220 
(Scalia, J., for a plurality of the Court). The other Justices 
Justice Kennedy in his concurrence and the four dissenters were 
even more expansive in the extent to which waters that are not 
traditional navigable waters are protected.

    Question 3. On page 5 of your testimony, you claim that an 
expansive view of pre-SWANCC jurisdiction can be based on 
``long-standing, explicit provisions regarding what are 
protected waters.''

      Was there a ``long-standing, explicit definition of 
``adjacent'' prior to SWANCC?
      Was there a ``long-standing, explicit definition of 
``ordinary high water mark'' Prior to SWANCC?
      If so, why did the Corps repeatedly promise to clarify 
jurisdictional issues in Every Regulatory Agenda from 1990-
2001?
    Response. I believe that the Code of Federal Regulation 
definitions of protected ``waters of the United States'' in 
place since 1977 for the Army Corps have defined adjacent and 
``high water mark'' in a consistent manner, and since 1979 for 
US EPA have defined adjacent in a consistent manner. I do not 
believe EPA has used a definition of ``ordinary high water 
mark'' in its regulations. I have not researched the context 
and nature of any particular promises by the Army Corps to 
revisit and clarify these particular terms in past regulatory 
agendas. I cannot speculate on what mix of regulatory tasks 
might have led them to State an intent to clarify a regulatory 
issue but not do so. Certainly many agencies these days face 
challenges due to limited budgets and expanding regulatory 
obligations. Agency failure to update old regulations is a 
common problem. I cannot, however, comment on the particular 
promise you reference.

    Question 4. You spend some time in your testimony talking 
about Arizona. Isn't is true that
    The Arizona Water Quality Control Act contains a definition 
of ``Waters of the state''-A.R.S. Sec. 49-201(40)-that covers 
all watercourses, including intermittent and ephemeral waters, 
giving Arizona enforcement jurisdiction over any waters outside 
Federal jurisdiction?
    Response. I am not an expert on Arizona law, and certainly 
cannot opine knowledgeably based on my own study about how 
Arizona has implemented its law or resources available for 
implementation and enforcement. Fortunately, Arizona has been 
active in responding to proposed regulatory guidances 
interpreting what should be protected as waters, and also 
joined a brief with many other states in Rapanos arguing for 
the Court to retain longstanding protections for America's 
waters. That brief and Arizona's comments reveal that Arizona, 
like most states, is eager for Federal law to remain strong and 
opposes weakening interpretations.
    For example, in 2003 comments on the post-SWANCC ANPRM, 
Arizona describes its water protections as linked to and indeed 
intertwined with Federal law due to Arizona assuming 
responsibility for the CWA NPDES program, as provided under the 
CWA cooperative federalism ``delegated program'' structures. 
Its view is that if Federal CWA protections for ``waters'' are 
undercut, Arizona protections would similarly shrink:

    The proposed change will have a profound impact on the 
authority of State environmental protection agencies like ADEQ 
to implement its water quality management programs, to prevent 
pollution, and to maintain and protect the biological, 
chemical, and physical integrity of Arizona's waters. ADEQ is 
designated as the State agency for all purposes of the CWA 
(A.R.S. 849-202) and depends on the full implementation of its 
CWA programs to protect the state's water resources. These CWA 
programs are the state's core regulatory programs to prevent 
pollution of Arizona's streams and lakes. Alternative 
regulatory authorities are not available.
    Arizona further stated concern that ``[i]f the State loses 
the ability to protect water quality of ephemeral and 
intermittent streams, it may be impossible to protect water 
quality in the downstream streams, lakes and reservoirs into 
which they flow.'' Given State law prohibiting Arizona 
regulators from being more protective than Federal law, the 
State bluntly acknowledged that Arizona protections would 
shrink if Federal protections were lost:
    A re-definition of the regulatory definition of ``waters of 
the United States'' at the Federal level that restricts the 
jurisdictional scope of the Act and . . . will have a profound 
impact on ADEQ's ability to regulate the point source discharge 
of pollutants to Arizona surface waters--placing virtually 95 
percent of the State's waters outside the CWA protections. 
There would be no prohibitions against discharges of pollutants 
(CWA 301), no requirements to get permits (402 and 4 04) and no 
enforcement provisions.
    In comments submitted just last month, on December 5, 2007, 
on the post-Rapanos Guidance issued by the Army Corps and US 
EPA, Arizona reiterated these concerns, especially focusing on 
harms that would flow from lost protections for ``ephemeral and 
intermittent, or non-perennial'' waters. After describing its 
own laws and linkages to Federal law through assumption of 
Federal delegated program status under Section 402, Arizona's 
Department of Environmental Quality states that ``[i]f the 
Corps and EPA deem ephemeral and intermittent waters non-
jurisdictional under the Guidance, or if the agencies fail to 
deem such waters jurisdictional, all Clean Water Act 
protections for these waters bodies may be lost.'' Arizona 
estimates that 96 percent of its stream miles are non-
perennial.
    Arizona's Governor, Janet Napolitano, recently wrote to 
Representative Oberstar expressing concern with lost 
protections of waters after the Rapanos decision, and in 
support of the Clean Water Restoration Act. Consistent with 
other regulatory statements by Arizona officials, Governor 
Napolitano stated that ``[w]hile we have some outstanding water 
pollution control laws in Arizona, we rely on the Federal Clean 
Water Act to protect Arizona's surface water quality for many 
of our water uses.''
    In its Supreme Court Rapanos brief, Arizona and over thirty 
aligned states noted a further concern. Even if a State seeks 
in its law to be protective, the loss of uniform protective 
Federal standards would leave states vulnerable to interState 
movement of pollutants. In both its brief and in regulatory 
comments, Arizona further noted that it has long relied on 
Federal authorities to protect wetlands.
    Thus, as indicated in these assorted statements, Arizona is 
like most states. It has some environmental laws of its own, 
but it has neither the desire nor the resources to take over if 
Federal protections are lost. State laws turning Federal law 
into the maximum allowable level of environmental protection 
further mean that any weakening of Federal law directly weakens 
many states' protections. Finally, gaps in coverage would 
inevitably result if Federal law were weakened in protecting 
``waters of the United States,'' especially because many states 
have not passed their own laws protecting wetlands and 
requiring permitting for ``dredge and fill'' discharges, as 
does Section 404 of the CWA.

    Senator Boxer. Thank you.
    First of all, I think Senator Inhofe and I both agree, this 
panel has been really terrific. Each of you is very passionate 
about your view. And I think you reflect, unfortunately, the 
split that will have on this Committee. This is a very 
passionate issue on either side.
    Now, I just want to make some observations, and we are 
going to keep the record open for 5 days, because colleagues 
will want to send you questions. So I hope you will be 
available to answer those questions. I know I have a number.
    But you know, when Mr. Mannina, you are a good lawyer, but 
in Section 502, the term navigable waters is defined by the 
very people that you cited. And it is defined as the waters of 
the United States, including territorial seas. So, I mean, to 
throw out that it said navigable waters, you are leaving out 
the fact that there was a definition.
    But I don't have time to get into it, I will ask you that 
question how you can sort of forget to say that. That will be 
the question.
    And then I will put into the record, without objection, a 
chart, a one page, by the EPA which shows that 11 million 
Americans receive drinking water from intermittent or ephemeral 
streams. So if we--I am sorry, 111 million Americans receive 
drinking water from these ephemeral streams or intermittent 
streams. Now, I don't know how the homebuilders feel that their 
people will feel when they have filthy, dirty drinking water 
because we can't act.
    And the other question is, and I think the homebuilders 
were very eloquent on the point, saying, let the State do this. 
I haven't seen many homebuilders in my State rushing around 
asking our State to suddenly have a new regulatory system.
    I do think that there are ways to fix this. We are 
certainly a long way from that because of the split on the 
Committee. This hearing is just the opening round. You have 
been terrific in making the record on both sides as to how 
people feel. But we will when we come back next year have a 
hearing on some of the bills that are out there.
    And Senator Inhofe, we have a couple of minutes. Would you 
like to close with a couple of statements?
    Senator Inhofe. I am not sure we have a couple of minutes.
    Senator Boxer. We have until 9:30. That is 2 minutes.
    [Laughter.]
    Senator Boxer. I took three, you can take two.
    Senator Inhofe. Yes, we are going to have to go. But this 
happens to be one of the votes I have to make. Oddly enough, 
well, it is not oddly enough, it is usually the case, she is 
voting wrong and I am voting right, so we could cancel each 
other and just say here.
    Senator Boxer. Let's put it this way: I am voting for 
reform.
    Senator Inhofe. That is true.
    I have a lot of questions I am going to ask for the record. 
I am sympathetic to you, Mr. Desiderio, because I used to do 
what your people do. I know the permitting process, you talked 
about the number of permits there would be under these various 
scenarios. I am interesting in knowing more about that and 
knowing what their capability is to do this. We can't just stop 
this machine called America.
    And then you also referred to some of the intent of the 
conferees in 1972. You have given me a lot to look at and to 
read. All five of you have done a very good job of presenting 
your points of view.
    We are going to get into this. I have problems in my State 
of Oklahoma. I recall very well in Kingfisher County, a very 
arid part of the State, going in there, made a declaration for 
just a very small part, which took away the use of 160 acres in 
the most arid part of Oklahoma. And there is not any 
uniformity. We have to correct the problem. There is a problem, 
we do agree on that.
    So I think it is excellent testimony, we have lots of 
questions to send to you.
    [The referenced material follows:]
    Senator Boxer. Senator Inhofe, thank you so much. Thank you 
all. It has been short but sweet and very informative.
    Thank you. We stand adjourned.
    [Whereupon, at 9:30 a.m., the committee was adjourned.]

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