Simplify Wetlands Regulation

***Request for Co-signers \-- Rep. Hunter***

Please sign this letter below requesting the Army Corps of Engineers to
issue guidance/new rule regarding regulation of wetlands activities
under the Clean Water Act, as required under the Supreme Court decision,
Solid Waste Agency of Northern Cook County v. Corps of Engineers
(SWANCC).

*Encourage the Corps to complete its process of developing guidance so
that property owners will know with some certainty what they can and
cannot do under the wetlands protection provisions of the Clean Water
Act, and so that the agencies can focus their resources appropriately
and efficiently in this arena as well.*

*Contact: Tom Porter w/ Rep Hunter 5-5672*

September XX, 2002

The Honorable Les Brownlee

Acting Assistant Secretary of the Army for Civil Works

102 Army Pentagon

Room 3E732

Washington, DC 20310-0102

Dear Secretary Brownlee:

As you know, in *Solid Waste Agency of Northern Cook County v. Corps of
Engineers (SWANCC)*, the Supreme Court ruled that the U.S. Army Corps of
Engineers had exceeded its authority under the Clean Water Act (CWA) by
asserting jurisdiction over isolated, non-navigable, intrastate waters
under the Migratory Bird Rule. Of critical importance to the Court\'s
decision was that Congress, when it enacted the CWA, intended to
preserve the State\'s primary rights and responsibilities over local
land and water resources. We believe that defining the proper extent of
federal jurisdiction under the CWA following the *SWANCC* decision is an
issue of national significance that requires immediate action for a
number of reasons. We urge you to issue guidance and a final rule
implementing the *SWANCC* decision.

In the absence of guidance, Corps Districts and Environmental Protection
Agency regions have been making ad hoc and inconsistent jurisdictional
determinations, including decisions that inappropriately seek to
maintain jurisdiction over areas that are now no longer subject to
federal jurisdiction. For example, we are greatly troubled by agency
decisions that have maintained jurisdiction over upland drainages,
irrigation channels, ditches, and ephemeral drainages. Federal
regulation over such waters leads to lengthy, burdensome and costly
permitting requirements without providing environmental benefits.
Moreover, maintaining federal jurisdiction over such areas is patently
inconsistent with the *SWANCC* decision, as it federalizes land and
water decisions that, under *SWANCC,* should be made by State and local
governments.

Asserting federal jurisdiction over such areas is patently inconsistent
with the *SWANCC* decision, as it federalizes land and water decisions
that, under *SWANCC*, should be made by state and local governments.
Moreover, continuing to regulate such areas leads to lengthy,
burdensome, and costly permitting requirements, for both the federal
government and the regulated public, without providing environmental
benefits.

By this, we are not suggesting that the Administration should in any way
weaken federal environmental protection under the CWA. Far from it.
Instead, the Administration should focus its scarce federal resources on
regulating those waters that are truly \"federal\" in nature such as the
traditional navigable waters and adjacent wetlands, thus, maximizing
federal environmental protection and properly aligning federal and state
responsibilities with respect to protecting water resources.

Ultimately, it is critical that the Administration provide guidance
implementing *SWANCC* so that both the agencies and the regulated public
are certain of the proper scope of federal jurisdiction under the CWA.
We look forward to your response.

Sincerely,

Article from September 16^th^ *Environment & Energy Daily*

# House panel to press feds for policy on isolated ponds 

**Damon Franz, *Environment & Energy Daily* staff writer**

Nearly two years after the Supreme Court stripped part of the Army Corps
of Engineers\' authority to regulate isolated wetlands, the agency still
has not come up with a guidance policy on how it will interpret the
controversial and somewhat ambiguous decision.

On Thursday, a House Government Reform panel will hold a hearing to find
out the reason for the delay and find out from corps, Environmental
Protection Agency and Justice Department officials what the policy is
likely to look like. \"We\'re basically trying to pin them down\" as to
what the guidance will say, said a staffer at the Energy Policy, Natural
Resources and Regulatory Affairs Subcommittee.

Before 2001, the corps used a broad patchwork of statutes and rules,
including the Clean Water Act, the Rivers and Harbors Act and the
Commerce Clause of the Constitution to claim regulatory authority over
all U.S. wetlands. But on Jan. 9 of that year, the Supreme Court struck
down the migratory bird rule, which said that because birds traveling
between states and nations use isolated ponds, the corps has authority
to regulate those wetlands under the Commerce Clause.

The exact meaning of the Supreme Court\'s decision in *Solid Waste of
Northern Cook County vs. the Army Corps of Engineers*, however, is still
not clear. An analysis of the case released earlier this year by
attorney Robert Meltz of the Congressional Research Service found that
if the majority opinion is read one way, the court rejected only the
migratory bird rule as a basis for federal regulation of isolated
wetlands. Read another way, the majority opinion nullifies the corps\'
jurisdiction over isolated waters completely.

According to state officials, environmentalists and developers, the
corps\' interpretation of the ruling since the SWANCC case has been
inconsistent and highly variable depending on the interpretations of
regional corps officials.

\"I think it\'s fair to say that the state of the law since SWANCC is a
mess,\" said Duane Desiderio, staff vice president for legal services
with the National Association of Home Builders, which filed an amicus
brief in the SWANCC case and favors a broad interpretation of the
decision. \"Some districts take a narrow interpretation of SWANCC, and
some are taking a more fair interpretation.\"

Because the case could be \-- and has been \-- interpreted so broadly,
it has been difficult for states to come up with their own policies for
regulating those wetlands. Although Wisconsin and Ohio have passed laws
to address the regulation of isolated ponds since the decision, other
states lag far behind. A report put out recently by the California
Research Bureau recommends weighing the value of wetlands affected by
the SWANCC decision against the cost of enacting statewide wetlands
protection. But depending on how the Bush administration interprets
SWANCC, the impact of the decision could range from minimal to
expansive.

The amount of wetlands in the United States that could be affected by
the ruling varies from 20 percent to 60 percent, according to the
Association of State Wetland Managers.

To determine exactly which wetlands are affected and stake out a clear
policy on regulating them, environmentalists, developers and state
wetland managers have been urging the corps and EPA to issue an official
guidance policy on the ruling. Although EPA Wetlands Division Director
John Meagher insisted in July that the agency is working with the corps
and the Justice Department to formulate that policy, some who follow the
issue say they have been hearing that promise for months and are
doubtful the policy will be forthcoming.

Environmentalists say the SWANCC ruling nullified only the corps\'
ability to use the migratory bird rule as a basis for regulating
isolated wetlands, and they feel the federal agencies should issue a
guidance reflecting this narrow interpretation of the case. Developers,
on the other hand, say the guidance should reflect the view that the
federal government has no authority whatsoever to regulate wetlands that
are not connected with interstate waterways.

In July, Sen. Russ Feingold (D-Wis.), along with Reps. John Dingell
(D-Mich.) and James Oberstar (D-Minn.) introduced legislation that would
give the corps authority to regulate all U.S. wetlands, regardless of
their relevance to interstate commerce.