[Congressional Record Volume 150, Number 100 (Monday, July 19, 2004)]
[Extensions of Remarks]
[Page E1409]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FEDERAL WETLANDS JURISDICTION ACT OF 2004

                                 ______
                                 

                         HON. RICHARD H. BAKER

                              of louisiana

                    in the house of representatives

                        Thursday, July 15, 2004

  Mr. BAKER. Mr. Speaker, today I am introducing the Federal Wetlands 
Jurisdiction Act of 2004. Joining me in cosponsoring this important 
legislation are the Chairman of the House Transportation and 
Infrastructure Committee Don Young, Chairman of the House 
Transportation and Infrastructure Subcommittee on Water Resources and 
the Environment John Duncan, former Energy and Commerce Committee 
Chairman Billy Tauzin, Western States Caucus Chairman Chris Cannon, and 
fellow conservationist Congressmen Marion Berry, Rob Bishop, Butch 
Otter, John Doolittle, Randy Forbes, and Doug Ose.
  The legislation my colleagues and I are introducing today does two 
things. First, the legislation clearly defines the areas over which the 
Federal government has jurisdiction as ``wetlands'' or ``waters of the 
United States'' under Section 404 of the Clean Water Act of 1977. 
Second, the legislation concentrates the implementation of the Section 
404 ``wetlands'' permitting program in one Federal agency: the U.S. 
Army Corps of Engineers. The legislation does not affect any part of 
the Clean Water Act other than Section 404.
  On January 9, 2001, the Supreme Court in Solid Waste Agency of 
Northern Cook County v. U.S. Army Corps of Engineers held that the 
Clean Water Act does not provide the Federal government jurisdiction 
over areas known as ``isolated wetlands.'' The Supreme Court case dealt 
with an area that was found to be jurisdictional to the Section 404 
program under an Environmental Protection Agency and U.S. Army Corps of 
Engineers interpretation of the Act known as the ``migratory bird 
rule.'' The ``migratory bird rule'' made jurisdictional to the Section 
404 program any wetland that migratory birds could inhabit. The Supreme 
Court found that this interpretation was beyond the bounds of the Act. 
However, the Supreme Court was not specific concerning the exact areas 
that are ``isolated wetlands.''
  The uncertainty about the jurisdiction of the Section 404 program 
that resulted from the SWANCC decision has not been resolved by 
interpretive rulings by the Environmental Protection Agency and the 
U.S. Army Corps of Engineers. Applications of SWANCC by the Corps and 
the EPA in determinations of Section 404 jurisdiction have resulted in 
a range of judicial decisions that are not consistent across the 
Nation. The resulting uncertainty is causing difficulty for my 
constituents and I am sure for the constituents of many Members of this 
House.
  In fact, it is not impractical to say that there are literally 
hundreds of agency interpretations of SWANCC's impact because the Corps 
and EPA have essentially allowed individual personnel to make their own 
judgments on a case-by-case basis. Could you imagine the speed limit 
being set by individual police officers on a case-by-case basis?
  I believe that Congress must end this uncertainty by stating as 
clearly as possible the areas that we intend to be jurisdictional to 
the Section 404 program of the Clean Water Act. While the SWANCC 
decision involved a Section 404 matter, the judicial decision can be 
interpreted to apply to the entire Clean Water Act. The legislation my 
colleagues and I are introducing today, however, only applies to 
Section 404 of the Clean Water Act. Indeed, there may be sound policy 
reasons to have different jurisdictional limits for other sections of 
the Act.
  The legislation that I am introducing today provides Federal Section 
404 jurisdiction over the territorial seas, traditionally navigable 
waters, tributaries that flow into traditionally navigable waters and 
the wetlands adjacent to these waters. Excluded from jurisdiction are 
man made connectors, such as ditches and underground culverts, and the 
wetlands connected thereto. The legislation also makes clear that the 
Section 404 program does not apply to so-called ``ephemeral streams'' 
or underground water. Finally, the legislation provides a mechanism by 
which landowners expeditiously can obtain a determination of whether 
wetlands areas on their property are within the jurisdiction of the 
Section 404 program.
  Mr. Speaker, this legislation will exclude from areas of Federal 
jurisdiction areas that Congress clearly never intended to be 
jurisdictional to the federal government. For example, on March 30, 
2004, one of my constituents testified about this problem at an 
oversight hearing of the Water Resources and Environment Subcommittee 
of the Transportation and Infrastructure Committee. On his land were 
some puddles of water, which is very typical of our part of the 
country. A tractor had driven through one of the puddles on a rainy day 
and down to and through a small drainage ditch on the property. Because 
the tractor left a rut that filled up with water from the puddle down 
to the stream, Corps field officials asserted jurisdiction over the 
puddles. The only connection between these puddles, which I believe are 
true ``isolated wetlands,'' and the small drainage ditch was this man-
made rut accidentally left behind by the tractor. Surely, Mr. Speaker, 
my colleagues will agree with me that Congress never intended to assert 
Federal jurisdiction over such areas of land. This legislation will 
exclude these areas from Federal jurisdiction.
  I believe that the definition of jurisdiction contained in this 
legislation is consistent with the SWANCC decision, the intent of 
Congress in enacting Section 404 of the Clean Water Act and the 
traditional division of jurisdiction between the Federal government and 
the States and local governments.
  This legislation also addresses a problem that has confounded my 
constituents since the original enactment of the Section 404 program in 
the Federal Water Pollution Control Act of 1972. When the Section 404 
program was enacted, there was a disagreement between the House and 
Senate regarding whether the newly created Environmental Protection 
Agency or the U.S. Army Corps of Engineers should have jurisdiction 
over the program. The conferees settled this disagreement by giving 
both agencies jurisdiction over the program. The result for my 
constituents often has been chaos. The U.S. Army Corps of Engineers 
implements the Section 404 program, but must also apply rules adopted 
by the Environmental Protection Agency; the Corps of Engineers makes 
jurisdictional determinations in the field, but the EPA, under a 1979 
Attorney General's Opinion, has final say in this area; and, finally, 
the EPA can veto a decision by the Corps of Engineers to issue a 
Section 404 permit. No other Federal regulatory program that I know of 
is implemented by two Federal agencies. My legislation resolves this 
inherent conflict by placing responsibility for the implementation of 
the Section 404 program solely in the hands of the U.S. Army Corps of 
Engineers, which I believe has incomparable expertise in wetlands 
management.

  Mr. Speaker, the Federal Section 404 wetlands permitting program is a 
very controversial program. In general, Americans want to see wetlands 
preserved. However, this general objective hits close to home when the 
wetlands in question are on privately owned property--as are 75 percent 
of the Federal jurisdictional wetlands. The Section 404 program can 
prevent or severely restrict the private use of privately owned 
property. Unfortunately, many of my constituents face these 
consequences under the Section 404 program.
  Mr. Speaker, the very least we can do for the citizens of this Nation 
is to define clearly those areas that are subject to the jurisdiction 
of this regulatory program and to designate one Federal agency to 
implement the program. The legislation that I am introducing today does 
just that and no more than that. I believe, also, that our bill is pro-
environment because it will diminish the number of individual 
landowners who unknowingly disturb or destroy wetlands. If a 
constituent knows ahead of time that a parcel of land is a wetland, 
they will refrain from buying it or developing it. Isn't precaution an 
effective medicine? I believe it is, and I believe this bill is the 
right prescription. I encourage my colleagues to support this 
legislation and ensure its timely enactment.

                          ____________________