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88–327 PDF 2003

AGENCY IMPLEMENTATION OF THE SWANCC

DECISION

HEARING

BEFORE THE

SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

SEPTEMBER 19, 2002

Serial No. 107–230

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

JOHN SULLIVAN, Oklahoma

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

ROBERT A. BRIGGS, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON ENERGY POLICY, NATURAL RESOURCES AND REGULATORY

AFFAIRS

DOUG OSE, California, Chairman

C.L. ‘‘BUTCH’’ OTTER, Idaho

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

STEVEN C. LATOURETTE, OHIO

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

JOHN SULLIVAN, Oklahoma

JOHN F. TIERNEY, Massachusetts

TOM LANTOS, California

EDOLPHUS TOWNS, New York

PATSY T. MINK, Hawaii

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

DAN SKOPEC, Staff Director

JONATHAN TOLMAN, Professional Staff Member

ALLISON FREEMAN, Clerk

ELIZABETH MUNDINGER, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on September 19, 2002 ..................................................................... 1

Statement of:

Albrecht, Virginia S., partner, Hunton & Williams; M. Reed Hopper,

principal attorney, Pacific Legal Foundation; Nancie G. Marzulla, president, Defenders of Property Rights; Raymond Steven Smethurst, partner, Adkins, Potts & Smethurst; Gary Guzy, partner, Foley, Hoag,

L.L.P.; and Patrick Parenteau, professor of law, Vermont Law School ... 54

Izzo, Dominic, Deputy Assistant Secretary for Civil Works, Department

of the Army; Robert Fabricant, general counsel, EPA; and Thomas

Sansonetti, Assistant Attorney General, Environment and Natural Resources, Department of Justice .................................................................... 6

Letters, statements, etc., submitted for the record by:

Albrecht, Virginia S., partner, Hunton & Williams, prepared statement

of ..................................................................................................................... 56

Guzy, Gary, partner, Foley, Hoag, L.L.P., prepared statement of ............... 124

Hopper, M. Reed, principal attorney, Pacific Legal Foundation, prepared

statement of ................................................................................................... 73

Izzo, Dominic, Deputy Assistant Secretary for Civil Works, Department

of the Army, prepared statement of ............................................................ 8

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio, prepared statement of .................................................................... 49

Marzulla, Nancie G., president, Defenders of Property Rights, prepared

statement of ................................................................................................... 85

Ose, Hon. Doug, a Representative in Congress from the State of California, prepared statement of ........................................................................... 4

Parenteau, Patrick, professor of law, Vermont Law School, prepared

statement of ................................................................................................... 134

Sansonetti, Thomas, Assistant Attorney General, Environment and Natural Resources, Department of Justice:

Cases in which U.S. Briefed SWANCC ................................................... 34

Prepared statement of ............................................................................... 22

Smethurst, Raymond Steven, partner, Adkins, Potts & Smethurst, prepared statement of ........................................................................................ 101

Tierney, Hon. John F. Tierney, a Representative in Congress from the

State of Massachusetts, prepared statement of ......................................... 167

(1)

AGENCY IMPLEMENTATION OF THE SWANCC

DECISION

THURSDAY, SEPTEMBER 19, 2002

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room

2154, Rayburn House Office Building, Hon. Doug Ose (chairman of

the subcommittee) presiding.

Present: Representatives Ose, Duncan, Tierney, and Kucinich.

Staff present: Dan Skopec, staff director; Jonathan Tolman and

Bob Sullivan, professional staff members; Yier Shi, press secretary;

and Allison Freeman, clerk.

Mr. OSE. Welcome to the Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs.

This is the 10 a.m., September 19 hearing on the Agency Implementation of the SWANCC decision.

As many of you know, having been before this committee in the

past, our procedures are to swear in our witnesses. We will do that

by panel. I will forewarn everyone I expect a journal vote here

shortly. I want to get the panel convened and underway accordingly.

We will have opening statements and then we will swear the

panelists and take the testimony. Then other Members as they

come, assuming they get here before we get to the witness testimony, will have opening statements.

It has been more than a year and a half since the Supreme Court

issued its decision on Federal jurisdiction over wetlands. In July

2001, I wrote to both the EPA and the U.S. Corps of Engineers requesting that the agencies issue clarifying guidance and initiate a

rulemaking to ensure that Federal regulations were consistent with

the Supreme Court’s decision. Today’s hearing is in response to the

fact that the agencies have yet to take even the most rudimentary

steps to ensure the regulations are being consistently applied.

On January 9, 2001, the Supreme Court ruled that the Corps

and EPA’s claim of jurisdiction had exceeded their authority under

the Clean Water Act in the case of Solid Waste Agency of Northern

Cook County v. U.S. Army Corps of Engineers, No. 99–1178. This

is known commonly among wetland afficiandos as the SWANCC

decision.

Section 404 of the Clean Water Act authorizes the Secretary of

the Army through the Corps to issue permits for ‘‘the discharge of

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dredged or fill material into navigable waters,’’ as 33 U.S. Code

Subsection 1344(a). In the SWANCC decision, the court reasoned

that ‘‘it is one thing to give a word limited effect and quite another

to give it no effect whatsoever. 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 reasonably be so made.’’ Whether one agrees or disagrees with the Supreme Court’s decision, the fact remains that it significantly

changed the jurisdiction of the Corps to regulate isolated waters.

On the last day of the previous administration, the Corps and

EPA issued a joint memorandum to their regional offices. While

this memo was swiftly issued, it appears to have done little to clarify Federal jurisdiction in light of the SWANCC decision. According

to the memo, ‘‘Jurisdiction over such ‘other waters’ should be considered on a case-by-case basis in consultation with agency legal

counsel.’’

This case-by-case approach has resulted in widely varying interpretations of the scope of jurisdiction by field offices of the Corps

and EPA. In addition, there appears to be little consistency in what

type of information and criteria are used for determining jurisdiction. Some regional offices are making jurisdictional determinations

in the office using maps and aerial photography while others are

conducting site visits.

Some Corps regional offices are asserting jurisdiction over what

appear to be isolated intrastate waters on the basis that they are

adjacent to other waters. In many of these cases, the term adjacent

appears to be of elastic proportions. In other cases, the Corps is declaring ditches which are only infrequently wet as tributaries, even

though the Corps has not defined the term tributary. This inconsistency—a primary concern of the Congress—inevitably leads to

citizens in different parts of the country receiving different levels

of treatment on such 404 applications as they may submit.

The current situation is creating confusion and chaos, not only

for the regulated community but for States as well. Even a casual

reading of the SWANCC decision suggests that it is the right and

responsibility of the States to regulate isolated waters. The lack of

action by Federal agencies to clarify the current situation hinders

States in their ability to implement their own programs to protect

wetlands.

In the absence of a clear demarkation of Federal jurisdiction,

States will be unable to even determine the necessary scope of

State wetland programs. While a few States, notably Ohio and Wisconsin, have passed legislation to address isolated waters in light

of the SWANCC decision, most States appear reluctant to adopt

programs until they know where Federal jurisdiction begins and

where it ends.

In addition to State programs, there are numerous other Federal

programs related to wetlands. Clear rules on Federal jurisdiction

under Section 404 are equally important to ensure these other Federal programs can properly prioritize their resources. For example,

the Wetlands Reserve Program reauthorized by the Farm Bill is expected to enroll 250,000 acres per year. By way of comparison, the

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total acreage of wetlands permitted under the 404 Program last

year was a tenth of that, about 25,000 acres.

In order to ensure that programs such as the Wetlands Reserve

Program maximize environmental benefits, they should be designed

to be complementary with the 404 Program. Until other Federal

agencies understand the scope of jurisdiction under the 404 Program, it will be difficult, if not impossible, for them to effectively

prioritize their programs.

In addition to general oversight over EPA, the Corps, and the

Justice Department, this subcommittee also has jurisdiction over

the regulatory process. While the SWANCC decision did not specifically vacate any Federal regulations, the broad rationale of the majority opinion at a minimum requires the clarification of a number

of regulations relating to the 404 Program. The fact that the agencies have yet to initiate a rulemaking is disturbing. Hopefully in

today’s hearing, the agencies will provide some insight into how

they will minimize the chaos their inaction has created before the

entire program degenerates into a sodden mass of litigation with

one set of standards in one part of the country and another set of

standards in another part of the country, and a third, fourth or

fifth set in a third, fourth or fifth part of the country.

[The prepared statement of Hon. Doug Ose follows:]

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Mr. OSE. I do want to welcome our witnesses today. As I said

earlier, we are going to go ahead and swear our witnesses, as we

do at every such hearing of this subcommittee. Before we do, I

want to forewarn you I expect a journal vote here shortly. In the

event of a journal vote, we will recess for as little time as possible.

I will go over and vote, come back, and we then will continue with

the hearing. Gentlemen, if you would rise.

[Witnesses sworn.]

Mr. OSE. I am told we have canceled the journal vote.

Our first witness today will be the Deputy Assistant Secretary

for Civil Works, Department of the Army, Mr. Dominic Izzo. Mr.

Izzo, we have your testimony, we have read it, so you don’t need

to go through it item by item. I would appreciate, as with the other

witnesses also, if you could constrain your summary to 5 minutes.

STATEMENTS OF DOMINIC IZZO, DEPUTY ASSISTANT SECRETARY FOR CIVIL WORKS, DEPARTMENT OF THE ARMY;

ROBERT FABRICANT, GENERAL COUNSEL, EPA; AND THOMAS SANSONETTI, ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF

JUSTICE

Mr. IZZO. Good morning, Mr. Chairman.

I am pleased to be here to speak to you about the Supreme Court

ruling called SWANCC. My testimony will focus on Army and EPA

efforts to develop a comprehensive response to SWANCC that will

faithfully implement the Supreme Court’s ruling.

Before I begin, I am pleased to inform you that the Army and

the EPA have agreed to engage in rulemaking to define the Federal

role under the Clean Water Act and in particular to collect broad

public input. Because the SWANCC decision focuses on Federal

Clean Water Act jurisdiction, we believe it important to emphasize

that the Federal Government is fully committed to preventing the

unauthorized discharge of pollutants into all jurisdictional waters,

including adjacent wetlands, as Congress intended.

Safeguarding these waters is a critical Federal function because

it ensures that the chemical, physical, and biological integrity of

these waters is maintained and preserved for future generations.

We think it appropriate to highlight the importance of our collective water resource protection responsibilities under Section 404

because EPA and the Army share responsibility for this program,

which protects all navigable waters including adjacent wetlands,

and SWANCC itself involves Section 404.

We also note, as you mentioned, that provisions in the 2002

Farm Bill will provide protection for millions of acres of wetlands

and other water resources, even if they are no longer under Clean

Water Act jurisdiction.

Wetland losses have dropped substantially over the last 10 years.

The Section 404 Program has played a pivotal role in protecting

thousands of acres of environmentally sensitive wetlands through

highly effective procedures that are designed to avoid, minimize,

and mitigate for unavoidable losses. We will continue to fulfill this

critical public purpose, and we are absolutely dedicated to the goal

of no net loss of wetlands.

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We also wish to emphasize that although SWANCC and our testimonies today focus on Federal jurisdiction, other Federal or State

laws and programs may still protect the water and related ecosystems even if that water is no longer jurisdictional under the

Clean Water Act following SWANCC.

SWANCC did not affect the Federal Government’s commitment

to wetlands protection through programs like the Food Security Act

Swampbuster requirements and Federal agricultural program benefits. Nor did it affect restoration through such Federal programs

as the Wetlands Reserve Program and grantmaking programs such

as Partners in Wildlife and the Coastal Wetlands Restoration Program.

The SWANCC decision also highlights the role of States in protecting waters not addressed by Federal law. Prior to SWANCC, 15

States had programs that addressed isolated wetlands. Since

SWANCC, additional States have considered or adopted legislation

to protect isolated waters. Federal agencies have a number of initiatives to assist States in these efforts to protect wetlands. For example, EPA’s Wetland Program Development Grants are available

to assist States, tribes and local governments in building their wetland programs. The Department of Justice and other Federal agencies are cosponsoring a National Wetlands Conference with the National Governors Association and other groups. This conference is

designed to promote close collaboration between Federal agencies

and States in developing, implementing, and enforcing wetlands

protection programs.

EPA and the Army share responsibility for the Section 404 Program, which protects wetlands and other aquatic resources. Under

the Clean Water Act, any person planning to discharge dredged or

fill material into navigable waters must first obtain authorization

from the Corps through issuance of an individual permit or must

be authorized to undertake that activity under a general permit.

Although the Corps is responsible for the day-to-day administration of the program, including reviewing permit applications and

deciding whether to issue or deny permits, EPA has a number of

important Section 404 responsibilities. In consultation with the

Corps, the EPA develops the environmental criteria that the Corps

applies when deciding to issue a permit. Under these guidelines, a

discharge is not allowed if there are practicable alternatives with

fewer adverse effects on the aquatic systems and appropriate steps

must be taken to minimize potential adverse effects to the aquatic

ecosystem and mitigate for unavoidable impacts.

EPA and the Corps have a long history of working together to

fulfill our important statutory duties. For example, Army and EPA

have concluded a number of written agreements, which are intended to further these cooperative efforts in a manner that promotes efficiency, consistency, and environmental protection. EPA

and the Corps have organized a staff-level Interagency Work Group

that includes EPA, Corps, and the Department of Justice.

Mr. OSE. Mr. Izzo, if I may, given the constraints of time, your

5 minutes has expired. The comments you have are in your testimony.

Mr. IZZO. They are indeed.

[The prepared statement of Mr. Izzo follows:]

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Mr. OSE. Let us go to Mr. Fabricant, if we may. I appreciate your

cooperation, Mr. Izzo, on that.

Mr. Fabricant for 5 minutes.

Mr. FABRICANT. Good morning.

I am Bob Fabricant, General Counsel of the Environmental Protection Agency. I welcome the opportunity to present testimony

today on EPA’s implementation of the SWANCC decision.

SWANCC involved a challenge to the Clean Water Act jurisdiction over isolated interstate, non-navigable ponds in Illinois that

had been gravel pit mines but which over time attracted migratory

birds. In SWANCC, the Supreme Court held that the Army Corps

exceeded its authority in asserting jurisdiction over the waters

based on their use as habitat for migratory birds. The Court concluded that neither the statute nor its legislative history supported

the Corps assertion of jurisdiction over the waters involved in

SWANCC.

Because SWANCC limited use of the migratory bird rule as a

basis of jurisdiction over certain isolated waters, it focused greater

attention on the jurisdiction over tributaries and over adjacent wetlands.

The case law and the precise scope of Federal jurisdiction since

SWANCC is still developing. The Corps, EPA, and DOJ have been

monitoring these newly decided cases and have been working closely together in an effort to develop guidance concerning Clean Water

Act jurisdiction following SWANCC. EPA, Corps and DOJ have organized a staff-level Interagency Work Group that meets biweekly

to exchange information.

We recognize that field staff and the public could benefit from

additional guidance on how to apply the legal principles in individual cases. Accordingly, our efforts have also focused on determining

where rulemaking might be advisable. A rulemaking would allow

us to garner public input on important jurisdictional issues arising

from SWANCC. SWANCC squarely eliminates jurisdiction over

interstate, non-navigable, isolated waters where the sole basis for

asserting jurisdiction is the use of the waters as habitat by migratory birds. In light of SWANCC, questions have also been raised

about whether there remains any basis for jurisdiction under other

rationales of our (a)(3) or other waters regulations.

The Court in SWANCC determined that the term navigable had

at least the significance of showing 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 reasonably be made so. Accordingly, traditional navigable waters remain jurisdictional following SWANCC.

Clean Water Act jurisdiction also extends to wetlands that are

adjacent to navigable waters pursuant to the Supreme Court holding in Riverside Bayview Homes. While wetlands adjacent to traditional navigable waters remained jurisdictional after SWANCC, the

Supreme Court has expressly declined to elaborate on the precise

meaning of the term adjacent. Army Corps and EPA regulations

currently define adjacent as bordering, contiguous, or neighboring.

The Army and EPA are examining the issue of whether this definition should be the subject of future rulemaking.

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For many years, EPA and the Corps have interpreted their regulations to assert jurisdiction over non-navigable tributaries of traditional navigable waters. Following SWANCC, Federal courts have

raised questions concerning the extent of Clean Water Act jurisdiction over non-navigable tributaries. The Army and EPA are examining whether a rulemaking should be pursued to address these

questions.

The case law in the Clean Water Act jurisdiction is still developing. The agencies will continue to monitor the emerging case law

and work closely to issue appropriate guidance and/or proposed revised regulations. We look forward to receiving stakeholder input

on these important issues.

Thank you for your time today.

Mr. OSE. Thank you, Mr. Fabricant. I appreciate your brevity.

Mr. Sansonetti, we are going to recess for a few minutes so I can

go over and vote. In fact, we are having a vote on the journal. It

was canceled and then put back on, so we are going to recess for

10 minutes and I will be back.

[Recess.]

Mr. OSE. Mr. Sansonetti for 5 minutes.

Mr. SANSONETTI. I am pleased to be here today to discuss the Department of Justice’s response to the Supreme Court’s decision in

SWANCC. In my testimony, I will describe our work in connection

with the Clean Water Act, the interpretation of which was at issue

in SWANCC, and the efforts that we have made to ensure the positions we have taken in litigation are consistent with SWANCC. I

will also briefly touch upon our efforts to improve Federal-State coordination and cooperation in wetlands protection and enforcement.

In my written testimony, I provided the subcommittee with a

prospective on the breadth of our work. My division has a docket

of approximately 12,000 pending matters, with cases in every judicial district in the Nation. The majority of our cases are defensive.

Although some of these defensive cases involve the Clean Water

Act, many more do not. In fact, litigation cases arise from over 70

environmental and natural resources laws. Even if one were to

focus only on an enforcement docket, wetlands cases are only a

small subset, 29 to be precise.

With that background, I will now discuss in more detail our role

with regard to the implementation of the Clean Water Act. The Department of Justice’s primary role with regard to the Clean Water

Act is to represent EPA, the Corps, and other Federal agencies that

might be involved in CWA litigation. That litigation can be either

defensive or affirmative.

Our defensive litigation can take a variety of forms. For example,

affected parties will sometimes bring an action against the Corps

of Engineers when it grants or denies a permit. My written testimony describes Wetlands Action Network, a case in which we defended the Corps’ decision to grant a permit to a developer in

Southern California.

Affected parties may also seek judicial review of regulations or

a guidance document. Finally, Federal agencies can also be sued for

discharging pollutants into waters of the United States if they have

not complied with the applicable requirements of the Clean Water

Act.

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We also bring affirmative litigation under the Clean Water Act.

CWA civil enforcement actions generally begin with a referral or an

investigation from EPA or the Corps regarding alleged violations.

We then conduct or own internal, independent inquiry to determine

whether we have sufficient evidence to bring the case and where

there is appropriate judicial action.

If we determine that judicial enforcement is warranted, we also

explore possibilities for achieving settlement of the alleged violations as appropriate. As I noted in my written testimony, the vast

majority of environmental violations are addressed and resolved

administratively by State and local governments. In the wetlands

area, most Federal enforcement of the Clean Water Act is carried

out by the EPA and the Corps at the administrative level and does

not involve us. Thus, our work is only a small, albeit an important

part of CWA implementation.

Just as with any other Supreme Court case, we try to ensure

that the legal positions on behalf of the Federal Government are

consistent with SWANCC. Accordingly, after SWANCC was decided

in January 2001, about a year before I came on this particular job,

we undertook a comprehensive review of our Clean Water Act docket. We scrutinized any case that involved isolated waters, the migratory bird rule, or analogous theories to determine whether

SWANCC had undermined the geographic jurisdiction in the case

and took action as appropriate.

In my written testimony, I gave two examples of cases in which

we decided not to pursue enforcement claims in light of SWANCC,

that is the Cargill Salt case and Borden Ranch. In addition to reviewing our existing cases for consistency with SWANCC, we established a process for ensuring the positions we take in litigation

going forward are internally consistent and appropriately coordinated with the Federal Government. Thus, in addition to the review of all our perspective enforcement cases I described earlier, we

also focused on whether there is a factually and legally sound basis

consistent with SWANCC for proceeding in our Clean Water Act

cases. We applied a similar process in our defense CWA-related litigation.

The Solicitor General, Ted Olson, also has an important role in

ensuring nationwide consistency in the U.S. litigation positions.

Anytime we seek to appeal from an adverse district court decision

or seek to file an amicus brief in the circuit courts of appeal, it is

the Solicitor General that must authorize the filing, regardless of

whether the U.S. Attorneys Office or my division is handling the

case. Each of our appellate filings to date has been authorized by

the Solicitor General.

Our careful examination of our cases has paid off with some success in the courts. There are 24 cases in which we have filed

SWANCC-related briefs in the Federal courts; 17 of those cases

have resulted in a decision; 12 of those decisions agreed with the

Government’s position, 5 did not.

Given that we still have pending litigation in this area, I would

be pleased to make available to any member of the subcommittee

our briefs as they provide the best statement of our position in any

particular matter.

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We have also made great strides in improving Federal-State cooperation and coordination in environmental protection generally,

and we are redoubling these efforts in connection with SWANCC.

In December, we will host a national conference and training

course designed in cooperation with several State associations,

EPA, and the Corps to facilitate Federal-State partnerships in this

important area. Consequently, I would like to assure the subcommittee that we are working hard to ensure the positions we

take in litigation are consistent with our client agencies. I would

be happy to answer any questions you may have about my testimony.

[The prepared statement of Mr. Sansonetti follows:]

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Mr. OSE. Thank you, Mr. Sansonetti.

Mr. Fabricant, on page ten of your testimony, you state, ‘‘The

case law and Clean Water Act jurisdiction is still developing. The

agencies will continue monitoring the emerging case law. Resolutions of issues on appeal and the issuance of guidance should help

define and reinforce the appropriate scope of Clean Water Act jurisdiction.’’ When I read this it suggests to me that the Corps and

EPA are waiting for a number of cases in the queue to be decided

before they can define jurisdiction under Section 404. Do I have an

accurate understanding?

Mr. FABRICANT. No, actually the Army Corps and EPA retain the

authority to move forward with guidance or rulemaking before

those court cases are decided. We are not in a holding pattern waiting for those cases to be decided.

Mr. OSE. So you are prepared to issue rulemaking?

Mr. FABRICANT. We are actively working on rulemaking and the

scope of the rulemaking so yes, we are prepared to move forward

with rulemaking prior to those decisions being decided.

Mr. OSE. I want to come back to that.

Mr. Sansonetti, in your testimony you state, ‘‘The Department’s

primary role with regard to the Clean Water Act is to represent the

Corps and EPA in litigation.’’ I can only interpret that to mean

that the Justice Department’s is to defend the policies of the Corps

and EPA?

Mr. SANSONETTI. Primarily, that is true, but of course they come

to us in given circumstances and say in a particular factual situation, is this something that has already been decided by the courts.

Since matters of adjacency, description of wetlands, what is a tributary are now being thought over in the courts, sometimes you have

to look at these things on a case-by-case—not sometimes, all the

time you must look at these on a case-by-case basis.

If there is a court holding that is out there such as SWANCC,

then we can say if your particular factual situation matches that,

then there is no jurisdiction. However, there are such a variety of

factual situations out there right now that often the EPA and the

Corps have to make a cut on whether or not they think they have

jurisdiction. In some of those cases, people disagree with the result,

and that has led to the litigations going on across the United

States right now.

Mr. OSE. The net result is that since the Supreme Court’s decision in SWANCC, we are waiting on some sort of guidance or rulemaking from the EPA and Corps, and then there are cases in the

queue in front of different jurisdictions and courts of law. How do

you know what policy to defend?

Mr. SANSONETTI. It can be difficult, that is why there are so

many cases in the circuit courts right now. It would be beneficial,

and I think both of the other panelists have stated they are going

to take on rulemaking, the goal of which is going to be to provide

a brighter line for American citizens to know exactly where jurisdiction will and will not lie. However, we also have to tell you what

we are dealing with here, the statute passed by Congress and the

regulations promulgated by these two agencies and their meanings,

is something obviously the Judicial Branch is going to have a big

say in.

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There are approximately seven or eight cases that are in the circuit courts right now that are all percolating up from the district

courts; some decided in favor of the Government, some decided

against the government.

Mr. OSE. Has the Department made any determination in response to questions from the Corps or EPA as to what the meaning

of adjacency or tributary or any of the other nebulous terms are?

Mr. SANSONETTI. We have worked with both agencies, and we

have had to address the arguments presented by opposing counsel

in briefs. Again, it is so detailed that I want to make sure I proffer

those briefs to you for a detailed answer.

Mr. OSE. We will accept the briefs and put them in the record.

Mr. SANSONETTI. Sure. I would be glad to do that, sir, but those

are topics that will need to be dealt with in the rulemaking.

[The information referred to follows:]

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Mr. OSE. Are the interpretations of these nebulous terms the

same regardless of district?

Mr. SANSONETTI. No. Different judges have ruled on different factual bases in different manners. You are correct.

Mr. OSE. Let me rephrase that. Do interpretations of these nebulous terms vary from EPA over Corps district office to Corps or

EPA district office? Is there one standard or are there many standards?

Mr. SANSONETTI. It is not so much the standard, it is the application of those standards to a set of facts that really provides the

problem.

Mr. OSE. Does the application vary from case to case?

Mr. SANSONETTI. It can, yes.

Mr. OSE. How does someone who would expect to be treated

equally before the law have any certainty as to what the actual

regulation says then?

Mr. SANSONETTI. They would have difficulty in so doing.

Mr. OSE. In the Borden Ranch case you cited in your written and

oral testimony, you did actually examine the vernal pool issue

there and in retrospect decided not to pursue that. You are, if I understand correctly, in front of the Supreme Court in early December on a horticultural practice related to Borden?

Mr. SANSONETTI. That is correct. The Borden Ranch case, the Department is presently in the process of drafting the Supreme Court

brief, but the SWANCC issue is no longer involved.

Mr. OSE. Someone made a decision on the Borden Ranch case

that the SWANCC decision no longer applied?

Mr. SANSONETTI. That is correct.

Mr. OSE. That was on the basis of isolated, intrastate water?

Mr. SANSONETTI. I believe that was the case, but it was determined after the division’s review of the facts in the case matched

against the SWANCC holding that particular count in the complaint should be dismissed, and it was. So the Supreme Court

when it deals with this matter later this year will not have a

SWANCC issue before it.

Mr. OSE. I am going to recognize the gentleman from Massachusetts.

Mr. TIERNEY. Thank you.

Mr. Izzo, you testified the agencies will be developing rulemaking

and your words were, ‘‘to faithfully implement the Supreme Court’s

ruling.’’ Are you saying the rulemaking will not contain any jurisdictional limits that are not provided in SWANCC or other Supreme Court decisions?

Mr. IZZO. No, sir, I am saying we haven’t exactly settled on what

the rulemaking will be and we are trying to work out the specific

cases that will be included in the rulemaking.

Mr. TIERNEY. What rules, other than the migratory bird rule,

have to be changed in order to be consistent with the SWANCC decision?

Mr. IZZO. We are still working on that because there are several

of the other elements that have been called into question and could

conceivably be included in the rulemaking, but we haven’t reached

a determination as to whether they should be in the rulemaking or

not.

37

Mr. TIERNEY. You are saying SWANCC has called other elements

into confusion?

Mr. IZZO. Yes, sir, SWANCC and the different opinions of the district courts.

Mr. TIERNEY. Let me stick to SWANCC because that is the controlling case, right?

Mr. IZZO. Yes, but the issue for us with SWANCC is that previously we had the migratory bird rule, which provided an umbrella over all the other jurisdictional issues.

Mr. TIERNEY. And, SWANCC gave you reason to want to deal

with that in the new rulemaking?

Mr. IZZO. That is correct.

Mr. TIERNEY. That is all that SWANCC should reflect in new

rules?

Mr. IZZO. I believe that is correct.

Mr. TIERNEY. That position would be consistent with the Department of Justice position, am I right, Mr. Sansonetti?

Mr. SANSONETTI. The position of the Department of Justice is

best stated in our briefs.

Mr. TIERNEY. You are a great lawyer, I am sure, and if you have

to argue in front of a judge, you can put what is in your briefs into

some sort of verbal component, and I think we are going to ask you

to do that now.

Mr. SANSONETTI. The law governing CWA jurisdiction is governed by the statute and the regulations. So we look to those in determining whether or not there is jurisdiction. The regulatory jurisdiction and the definition of waters in the United States as currently on the books authorizes these agencies to regulate four primary categories of water: traditional navigable waters, interstate

waters, tributaries, adjacent wetlands, and four is isolated waters.

It is only the last one that was touched upon in SWANCC, isolated

waters. So we have pending enforcement cases, those I mentioned

earlier, the ones on appeal, and each one deals with the first three

categories that was not touched upon by SWANCC. So that gray

area, if you will, is still out there in the judiciary and we will have

to wait to see what happens.

Mr. TIERNEY. With respect to that one category that was dealt

with in SWANCC, the Court based its decision on the migratory

bird rule, correct?

Mr. SANSONETTI. It did.

Mr. TIERNEY. So when Mr. Izzo says that the only rule they

would need to change would be that migratory bird rule, that

would be consistent with the Department of Justice’s position?

Mr. SANSONETTI. In that case, that is correct, but as I have stated before, there have been a number of cases filed by opponents to

their decisions that would disagree with your statement and they

have been winning. They have been winning at the lower court

level, so we will have to see what happens when the matters are

determined at the circuit court level. As I stated, in my testimony,

17 decisions—12 in favor of Government.

Mr. TIERNEY. So a distinct minority have gone the other way?

The batting average is good.

38

Mr. SANSONETTI. The batting average so far is good. I guess it

depends on which one gets to the Supreme Court first, and that

one will have impact on all the remainder.

Mr. TIERNEY. Mr. Izzo and Mr. Fabricant, based on all that, I

would say any decision your agencies might make with respect to

rulemaking that do anything more than deal with the migratory

bird rule would in essence be a policy decision, right?

Mr. FABRICANT. The Office of General Counsel would need to

weigh in on litigation matters and litigation risks associated with

revisions to the rulemaking. So it wouldn’t be a pure policy matter.

There would be litigation risks associated with some of the questions that have been raised by the Federal courts. So it would be

a mix of the two.

Mr. TIERNEY. You obviously assess the risk, win, loss, and in

which positions, but with respect to the actual issue that was in

that Supreme Court decision, that deals with the migratory bird

rule and that is what you need to address in the rulemaking. Anything beyond that is not occasioned by the SWANCC decision; you

are doing that as a matter of policy.

Mr. FABRICANT. Clearly, the SWANCC decision is controlling law

across the United States but other Federal courts raise legal issues

that we need to factor into the rulemaking process. So it is a blend.

In a rulemaking, the Office of General Counsel participates in a

legal sufficiency review of rulemakings. It requires a blend of policy

and legal analysis.

Mr. TIERNEY. It is amazing to me that in your rulemaking you

would be looking at judicial decisions where there are issues that

have been raised but no determination finally made. I understand

how you look at a Supreme Court case. That is determinative and

you are going to factor that into your rule, but it strikes me as

being a bit unusual to say the least that you would choose to go

beyond the Supreme Court decisions into lower court decisions

where there is a distinct diversity of opinion. To me that is policymaking, a public policy choice this administration is making.

Mr. FABRICANT. Again, the rulemaking process that we agreed to

is to put out a proposal. The exact scope of it hasn’t been determined yet. We are still talking within the agencies and there is no

predetermination of where that rulemaking might be finalized.

Again, we are midstream in some of these cases. They may inform

the final rule that eventually comes out or they may still be pending. Again, there is no decision that has been made today.

Mr. OSE. Mr. Duncan.

Mr. DUNCAN. Thank you for calling this hearing. I am sorry I

was in other meetings and did not get to hear the testimony.

In another committee I chair, the Water Resources and Environment Subcommittee, we have had major hearings on these issues.

What we see in almost every industry is that the Federal Government hands down so many rules and regulations and so much red

tape, it hurts the little guy in every industry, hurts the small coal

miner, the small logger, or the small farmer. In the two hearings

we held several months ago, we had small farmers there crying,

breaking into tears over what happened to them because of enforcement of wetlands regulations that were costing them so much

money. You see these extremely big corporations that are happy

39

about all this because it drives out all their competition first from

little guys and even the medium-sized businesses.

This is not related to the wetlands but in 1978, we had 157 small

coal companies in eastern Tennessee. Now we have none. You don’t

just lose miners from that, you lose sales people, secretaries, lawyers, accountants and all sorts of jobs because of that. The same

thing has happened in several other industries.

I understand from staff that the regulations in this area got so

ridiculous that the Corps and EPA at one point had adopted what

was called the Glancing Goose Test, allowing jurisdiction to be asserted over private property if a migratory bird so much as looked

at it.

What I am wondering about now in this case from Cook County

we have been talking about, the Supreme Court said that regulating isolated wetlands would beyond Congress’ authority under the

Commerce Clause because it would ‘‘result in a significant impingement of the States’ traditional and primary authority over land and

water use.’’ Then you had Justice Stevens who said, ‘‘In its decision

today, the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the Corps assertion of jurisdiction over all waters except for actually navigable

waters, their tributaries and wetlands adjacent to each.’’ Really the

Court said they found the original intent of Congress was not to

give the EPA, the Army Corps, or anyone else jurisdiction over an

extremely isolated wetland or some small area that would become

a wetland possibly a few days each year, but this was meant to

apply to actual navigable waters and their tributaries.

Is that what you all are working on now, you are trying to come

up with regulations consistent with that decision or do you find the

lower levels of the Army Corps and EPA and so forth are resisting

that decision? Mr. Izzo.

Mr. IZZO. I don’t think anybody in the lower levels of the Army

Corps of Engineers is resisting that decision. It is just that this is

a very complex issue. While SWANCC makes it clear that intrastate, isolated, non-navigable waters cannot be regulated solely

based on use by migratory birds, there is a whole other category

of things related to that which other court cases have called into

question. We are trying to structure a rulemaking so that we can

arrive at good rules to address that with public input, and that

takes time. We have not completely defined the parameters of that

rulemaking yet. I wouldn’t say there is resistance at the lower levels of the Corps of Engineers, not by any means.

Mr. DUNCAN. Will you try to keep in mind what I have seen in

this and so many other areas that when you come down with

heavy-handed enforcement of all these rules and regulations, it is

driving the little guys out of business, out of farming. It is hurting

the small farms. Everybody in Congress on both sides says they are

for the family farm, but everything the Federal Government has

been doing is driving these people out. It helps the big giants. We

come in with these supplemental appropriations bills and give

them so more money trying to keep them in, but they are being

forced out because they can’t farm their property.

That is all I have to say, Mr. Chairman.

Mr. OSE. Thank you, Mr. Duncan.

40

Mr. Fabricant, I am interested in the process or the status of the

process, Mr. Izzo, this may apply to you too, of the effort underway

to actually initiate the rulemaking. In a very real sense, my concern is whether or not it’s proceeding. I would like to know chapter

and verse of the meetings that have taken place between EPA, the

Corps, and the Council on Environmental Quality, what have you,

to try and get this thing completed and out to the public for due

process?

Mr. Fabricant. I can generally describe the process that has come

up, and if you need more specifics, we can provide them. I am not

sure I have all the detailed meetings for you today.

Several months after the SWANCC decision, we began our Interagency Work Group including the Army Corps of Engineers, EPA,

the Department of Justice and that process in its early stages was

looking at the SWANCC decision and developments regarding that

decision and played several different roles, including coordinating

cases as they came through in light of SWANCC.

Since then, we have been looking at whether additional national

guidance could be helpful to the process and have continued that

working group on virtually a weekly to bi-weekly basis of meetings

that serve dual purposes, looking at and coordinating particular

issues as they came up and trying to continue to move the ball regarding guidance and/or rulemaking.

Mr. OSE. Do you have dates, times, and who was in the meeting?

Mr. FABRICANT. I don’t have them here today but I suspect there

are some records of that we could certainly try to reconstruct.

Mr. OSE. The reason I ask is I don’t think it is any secret that

I am dissatisfied that after 18 months and the Supreme Court’s decision, we still don’t have anything that is even remotely close to

being put out for proposed rulemaking. I am trying to find out who

it is that is in charge of this so that instead of haranguing you I

can go harangue them, if you will. If you could come up with that

from an EPA standpoint, I would appreciate that.

Mr. Izzo, I would like to ask you the same question in terms of

who at the Corps is participating in these conversations, when are

they taking place, who is it that is driving the train so to speak?

Is that available?

Mr. IZZO. Yes, sir, it is available certainly from peoples’ calendars. EPA and Army have been engaged in, I would say, intense

dialog on this for at least most of the summer. Prior to that, the

discussions were occurring at the staff level for quite a bit of time,

and I think I can safely say that they weren’t progressing fast

enough for our desires and that is why it was elevated to our level.

We have been giving it intense attention to try and get to the point

where we can do the rulemaking.

Mr. OSE. I appreciate that, but I want to go back to my question.

I want to know who is involved and when the meetings have taken

place, to see if there is a regular pattern of getting together or

there isn’t. Is the Army Corps of Engineers prepared to submit that

to the committee for its edification?

Mr. IZZO. Yes, sir, we would be happy to.

Mr. OSE. Mr. Sansonetti, in the SWANCC decision, the Supreme

Court stated, ‘‘We said in Riverside Bayview Homes that the word

‘navigable’ in the statute was of limited effect and went on to hold

41

that Subsection 404(a) extended to non-navigable wetlands adjacent to open waters. But it is one thing to give a word limited effect

and quite another to give it no effect whatsoever. The term ‘navigable’ has at least the import of showing us what Congress has 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 reasonably be so made.’’ That is the Supreme

Court’s actual writing in their decision.

In light of this decision, does the Justice Department believe

there are alternative Commerce Clause connections other than

navigation that give the Corps jurisdiction under Section 404?

Mr. IZZO. Again, the Department of Justice has addressed those

constitutional arguments in a number of these briefs filed before

U.S. District Courts and the Circuit Courts of Appeal. In particular, I am going to supply you with the brief in the United States

v. Deaton case because that one has been to the Fourth Circuit and

back. The District Court has recently held for the United States.

The Deaton folks have obviously taken that back to the Fourth Circuit. Those are the issues involved in it, and I understand you will

hear from the Deaton counsel later today. So the answer is that

particular constitutional argument is in full litigation right now.

The briefs speak for themselves. We will have to see what the

Fourth Circuit says and the other circuits as well.

Mr. OSE. In summary, did the Justice Department’s brief cite alternative Commerce Clause connections?

Mr. IZZO. They basically defend the Army Corps’ decision in that

particular wetland situation and state that the power through the

regulations given to the Army Corps were jurisdictional in that

case, yes.

Mr. OSE. My time has expired. I have additional questions. We

will go to the gentleman from Massachusetts.

Mr. TIERNEY. I have just a couple more questions that will hopefully clarify some things.

In January 2001, the EPA General Counsel at that time, Gary

Guzy, and the Corps General Counsel, Robert Anderson, issued a

memorandum interpreting the Court’s decision in SWANCC. Would

both of you gentleman address whether or not that memorandum

currently reflects the position of the EPA and the Corps?

Mr. FABRICANT. The memorandum is currently in effect, yes.

Mr. TIERNEY. So it has not been revoked?

Mr. FABRICANT. No, it has not.

Mr. TIERNEY. In the course of your rulemaking, are you going to

in any way make an estimate of the numbers of acres of wetlands

or miles of streams that might be affected depending on the way

you interpret the rule, either narrowly and the migratory bird rule

under SWANCC or more broadly if you go that route?

Mr. FABRICANT. I suspect in the course of the rulemaking that

we would develop information and solicit comment from the regulatory community and public regarding those very types of issues.

Mr. TIERNEY. But that has not been done yet?

Mr. FABRICANT. To the best of my knowledge. I haven’t seen that

type of analysis sitting as the General Counsel.

Mr. TIERNEY. Mr. Izzo, you have seen nothing to that effect either?

42

Mr. IZZO. No, sir, I have not. SWANCC-related permits constitute

a very small part of our workload so I would expect the total number of acres that would be affected one way or the other would be

relatively small.

Mr. TIERNEY. Thank you. I have no other questions.

Mr. OSE. The gentleman from Tennessee?

Mr. DUNCAN. No.

Mr. OSE. Mr. Sansonetti, I want to go back to the line of questioning I was pursuing a moment ago. Corps regulations

colloquially referred to as (a)(3) specify that water whose use cold

affect interstate commerce is jurisdictional to the Corps. Are those

regulations in (a)(3) consistent with SWANCC?

Mr. SANSONETTI. You are referring to Part 328, Definition of Waters in the United States, 328.3(a)(3) is the part that talks about

all other waters such as interstate lakes, rivers, streams, mudflats,

sandflats, wetland, etc. Obviously that particular section is one of

those that is involved in the series of litigation out there.

We feel that the SWANCC decision referred to the application of

a regulation; it did not strike out (a)(3), which is still in existence

today. There is a Fourth Circuit case that has dealt with (a)(3)

known as Wilson where they invalidated (a)(3) for the Fourth Circuit purposes but that particular decision has not made its way to

the Supreme Court.

Mr. OSE. Is (a)(3) consistent or inconsistent with the SWANCC

decision in the Department’s opinion?

Mr. SANSONETTI. It is consistent as far as the fact that the regulation is in place and can be applied by the Corps. Where the fight

comes is whether or not a particular fact situation falls within

(a)(3), is a particular wetland adjacent, is a particular water body

described correctly as a playa lake, is it a wet meadow? That is

what a lot of the fights are about.

Mr. OSE. Section 328.1(a)(3)(i) describes waters which are or

could be used by interstate or foreign travelers for recreational or

other purposes. How does that relate to navigable waters?

Mr. SANSONETTI. I suspect as far as (3)(i) is concerned, it says

‘‘which are or could be used by interstate or foreign travelers for

recreational or other purposes.’’ I suppose if you have a boat, you

can cross a lake and people can fish off it and take the fish to

shore, that would be jurisdictional.

Mr. OSE. No. 2, ‘‘for which fish or shellfish are or could be taken

or sold in interstate or foreign commerce.’’

Mr. SANSONETTI. Same answer. If you have folks taking out the

shellfish and going to shore, that would constitute interstate or foreign commerce up on the borders of our country.

Mr. OSE. No. 3 is ‘‘which are used or could be used for industrial

purposes by industries in interstate commerce.’’

Mr. SANSONETTI. That goes to the commerce nexus which is at

debate in many of the cases.

Mr. OSE. So how does recreation, fishing, and industrial purpose

relate to navigable waters, navigation in particular?

Mr. SANSONETTI. As I say, Congress wrote the law and so everyone is having to interpret exactly what you meant in that regard.

The Courts have, in some instances, stated that if commerce is

linked to (a)(3) (i), (ii) and (iii), then there is jurisdiction.

43

Mr. OSE. The Supreme Court’s contention that giving the word

limited effect, navigation in normal language means a putting

along kind of thing.

Mr. SANSONETTI. It certainly has to have meaning but even in

the SWANCC decision, in the discussion about navigability, a nonnavigable tributary that leads directly to a navigable tributary was

included as being jurisdictional. So the challenge to the rulemakers

is going to be to determine where to draw the bright line in the

gray area because you are correct, the word navigable does and

should have meaning. Congress put it there, so to the degree that

even the rulemaking that eventually comes out is going to be challenged, there is no doubt about that, whatever the eventual rulemaking is that comes out, we are still going to end up in court.

To the degree that the legislative branch is unhappy with that

result, either the rulemaking itself or the executive branch, that is

not what we meant Congress says, or you are unhappy with what

the folks in the black robes say, this whole matter could potentially

or should be right back here at Congress to the degree that we

have done the wrong thing or made the wrong decision or you don’t

like what the courts say, then this needs to be amended to make

it more clear, the law does.

Mr. OSE. If I interpret your remarks correctly, with all due respect, the comments of the Supreme Court as to the nexus between

navigability are just being ignored. I don’t see how fish or shellfish

relate to navigability or how recreation relates to navigability. It is

a very clear statement, it seems to me, in the SWANCC decision.

I am not an attorney, but I live in the real world.

Mr. SANSONETTI. The regulations as developed by the Army

Corps may or may not be correct. We will see in the courts, but

I think what was tried to be laid out there were standards to use.

You are trying to get at the word navigability. So if there were individuals using a water body for foreign travel, recreational purposes, shellfish, one would assume that the water body was of such

size and ability to support commerce, and a ship that is on the

water would be navigable. You wouldn’t find a ship on a piece of

water that was not navigable, of that size.

Mr. OSE. Mr. Duncan.

Mr. DUNCAN. No.

Mr. OSE. I will just keep going then.

I want to go back to the process by which we will get to published rules, even if it is just as draft for public comment. What is

the hangup, Mr. Izzo and Mr. Fabricant, on finding some closure

at the agency level for getting out a notice?

Mr. FABRICANT. Again, we have been dealing with the judicial

decisions over the course of the last year as they talk about the

SWANCC decision and how they have raised questions regarding

SWANCC and how it should be applied. Again, it is a complex legal

and policy issue we are dealing with and looking at individual fact

patterns and how they apply to the standards that the Court laid

out, and the questions that have been raised in the Federal courts.

With that kind of backdrop, we are trying to bring to closure, and

we have elevated over the course of the summer the issues, and we

are trying to refine what needs to be the subject of the rulemaking.

So we do plan very soon to initiate that process publicly.

44

Mr. OSE. What does that mean, very soon? Is it kind of like the

word navigable?

Mr. FABRICANT. I would hope we wouldn’t need the Supreme

Court to define it for me. We plan to elevate it within our offices

within the next—soon.

Mr. OSE. Mr. Izzo, can you define what soon means?

Mr. IZZO. Sir, I think we are very close. As a matter of fact——

Mr. OSE. What does close mean?

Mr. IZZO. Close means we had hoped to avoid this hearing by getting it done by now.

Mr. OSE. Want to have another one?

Mr. IZZO. I don’t think that will be necessary, sir. I think we are

very close to this, and you will see satisfactory performance very

soon.

Mr. OSE. What does close mean? What does very soon mean, Mr.

Fabricant?

Mr. FABRICANT. Again, it is difficult for me to lay down a time

line here today, because we do need to elevate it within our respective offices and get interagency review on our rule proposal as well

as administration review.

Mr. OSE. What other agencies need to look at the rule before it

comes out?

Mr. FABRICANT. As you transmit a rule proposal or advance notice to the Office of Management and Budget for OIRA review, an

interagency process occurs where various agencies will look into

and comment upon your proposed draft. Then there are the normal,

traditional peer review and that process. Again, there is a process

to actually finalizing the rulemaking portion.

Mr. OSE. When do you expect that finalization to occur?

Mr. FABRICANT. I can lay out for you the process. The specific

process that OIRA requires is a 90-day review period.

Mr. OSE. That is after you finish?

Mr. FABRICANT. Correct, after Army Corps and EPA.

Mr. OSE. I am interested in these two agencies. When are you

going to finish what you are supposed to finish?

Mr. FABRICANT. Very soon.

Mr. OSE. I am going to keep asking. What does very soon mean?

It has been a year and a half, Mr. Fabricant.

Mr. FABRICANT. It is hard for me, without having the issue elevated within our particular agencies, to give you a hard and fast

timeline but I could certainly return to the office and try to firm

up a timeline for you within the next several days.

Mr. OSE. Do you have a certain date at which you have already

targeted the issuance of this item?

Mr. FABRICANT. We have targeted a deadline for our next meeting to try to bring to closure our issues.

Mr. OSE. You have targeted a deadline. What does that mean?

Mr. FABRICANT. Early October. In early October, the first week

of October, we are looking at a meeting to try to bring to closure

the issues still outstanding.

Mr. OSE. Mr. Izzo, do you agree with that?

Mr. IZZO. Yes, sir. The only thing I would add is that this is obviously our top regulatory issue, so it gets full priority, I believe,

from both agencies. While we cannot give you an exact date, we are

45

focused on the beginning of October and we are doing everything

we can to get there quickly.

Mr. OSE. All I am trying to do is give both sides or all sides of

this issue nongovernmental in nature the opportunity to exercise

their due process rights. So what does the deadline for your next

meeting mean?

Mr. FABRICANT. It means the working group, which includes Mr.

Izzo and myself, will be meeting the first week of October to try

to bring closure to the issues that are still outstanding and then

elevate the principals within our agencies.

Mr. OSE. Is this your final meeting?

Mr. FABRICANT. We would hope it would be, but there are still

pending issues as to the scope of the rulemaking that we need to

resolve.

Mr. OSE. Of a legal nature, in front of courts and the like?

Mr. FABRICANT. Again, a blend of legal and policy matters that

we are discussing.

Mr. OSE. So when do you expect to resolve those?

Mr. FABRICANT. Again, we hope in the first week of October so

we can elevate it to principals within our agencies.

Mr. OSE. The first week of October would be—oh, I am going to

get a date. The first week of October would mean what?

Mr. FABRICANT. Friday of the first week of October.

Mr. OSE. Give me a calendar. The first Friday of October is October 4. Is that the Friday you are referring to?

Mr. FABRICANT. Yes, Mr. Chairman. Again, I am representing

EPA today.

Mr. OSE. If it were someone else, I would be asking the same

questions.

Mr. FABRICANT. I understand. We hear you loud and clear to get

this process moving and resolved. That meeting is intended to do

that. Whether we can accomplish the goal, I am not certain, but

it certainly is intended to do that on October 4.

Mr. OSE. I have my little Blackberry out here and I have gone

to my calendar function and pulled up October 4. I have put in

here the SWANCC—governing body—what do you call it?

Mr. FABRICANT. Interagency Work Group.

Mr. OSE. Interagency Work Group. Final meeting?

Mr. FABRICANT. Hopefully final meeting.

Mr. OSE. What does that mean?

Mr. FABRICANT. Our hope is that we can finalize at least at the

Work Group level the open issues.

Mr. OSE. Hopefully is not good enough for me. I don’t know how

to spell it, so it is either the final meeting or it is not. Which is

it?

Mr. FABRICANT. It is intended to be the final meeting.

Mr. OSE. Mr. Izzo, do you agree with that?

Mr. IZZO. Yes, sir, I do. That is the plan.

Mr. OSE. Once it leaves this final meeting on or before October

4, where does it go?

Mr. FABRICANT. If policy decisions have been made at that time

and there is consensus, we bring it to principals to review and signoff on.

Mr. OSE. What does that mean?

46

Mr. FABRICANT. It means it gets elevated within our agencies to

individuals with rulemaking authority—Governor Whitman in my

agency. Again, after those decisions are made and this process will

be occurring concurrently to develop language to actually have a

document ready as soon as possible, but there will certainly be

some period of drafting after policy decisions have been made.

Mr. OSE. Mr. Izzo, where does it go on your side of the discussion?

Mr. IZZO. It would go to the Acting Assistant Secretary for the

Army for Civil Works, Mr. Brownlee, for approval.

Mr. OSE. That would be Les Brownlee, right?

Mr. IZZO. Yes, sir.

Mr. OSE. Mr. Sansonetti, what role do you play in this?

Mr. SANSONETTI. If they ask us to attend their meetings, we attend and give them advice at the meetings, but they obviously

make the final decision on performing rulemaking and take it to

the top of their two agencies.

Mr. OSE. October 4? I have some more questions.

Mr. Duncan, do you have anything?

Mr. DUNCAN. No.

Mr. OSE. Mr. Sansonetti, is the Justice Department litigating

any cases involving geographically isolated waters, whatever the

word isolated means?

Mr. SANSONETTI. The answer is no.

Mr. OSE. None. On the basis of SWANCC, you made a decision

that the Corps’ jurisdiction does not extend to these waters?

Mr. SANSONETTI. There just happen to be no cases in the pipeline

right now that deal with that.

Mr. OSE. Mr. Izzo, the Department of Interior has actually published a definition of isolated which reads as follows, ‘‘wetlands surrounded by upland may be considered isolated since they are separated from other wetlands by dry land. This is isolation from a geographic landscape or geomorphic perspective.’’

The question I have is, if a wetland is separated from a jurisdictional water by dry land, does the agency consider that wetland to

be isolated?

Mr. IZZO. Well, sir, those decisions about the facts of an individual case would be made by our district personnel actually looking

at the site, because it gets a little complicated in that. There are

multiple definitions of these different types of wetlands out there.

That would be the definition that would be applied.

Mr. OSE. The Administrator of the EPA under an elevation issue

or otherwise?

Mr. IZZO. The EPA provides us the guidance for implementing

these regulations, the environmental guidance, so we would follow

their definition.

Mr. OSE. Mr. Fabricant, if a wetland is separated from a jurisdictional water by dry land, does the EPA consider that wetland to

be isolated?

Mr. FABRICANT. As Mr. Izzo stated, it is a fact-specific analysis

that occurs at the local level. What we would do is follow our regulatory language regarding adjacency and look to the definition

which includes contiguous neighboring, bordering. The separation

by a berm does not necessarily lead to a break in jurisdiction as

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our regulations spell out, but it is a fact-sensitive analysis that

needs to occur.

Mr. OSE. Has the EPA provided the Corps with a definition of

contiguous?

Mr. FABRICANT. To the best of my knowledge, no, Mr. Chairman.

Mr. OSE. Is there a definition of the word contiguous in regulation or statute?

Mr. FABRICANT. I don’t believe so.

Mr. OSE. Has the EPA provided the Corps with a definition of

the word bordering?

Mr. FABRICANT. To the best of my knowledge, no.

Mr. OSE. Is there a definition in statute or regulation of the word

bordering?

Mr. FABRICANT. To my knowledge, no.

Mr. OSE. Has the EPA given the Corps a definition of the word

neighboring?

Mr. FABRICANT. Same answer, no.

Mr. OSE. Is there a definition in statute or regulation for the

word neighboring?

Mr. FABRICANT. No, there is not. That sort of begs the question

whether this might be an appropriate area to consider for additional rulemaking. It is currently being discussed within the agency.

Mr. OSE. I want to come back to my central point. Without a definition, without a standard, without cooperation between your

agencies to move this forward, I don’t care what your perspective

is, whether you are over here or over there, this area is rife with

opportunity for unequal treatment before the law. A citizen in one

part of the country might be treated far differently than a citizen

in another part of the country.

Mr. OSE. The gentleman from Ohio for 5 minutes.

Mr. KUCINICH. I thank the gentleman.

Mr. Sansonetti, the Justice Department has filed briefs in a

number of post-SWANCC cases in the Federal District and Appeals

Courts and some of those have been signed by you. These briefs

have consistently argued that the Supreme Court’s decision should

be read narrowly, that the decision only held that the Clean Water

Act did not authorize the Army Corps of Engineers to regulate isolated waters based solely on the presence of migratory birds under

the so-called migratory bird rule. Do you stand by this position?

Mr. SANSONETTI. Of course, they are our briefs. We signed them.

Mr. KUCINICH. One DOJ brief states, ‘‘The regulations have consistently construed the act to encompass wetlands adjacent to tributaries to traditional navigable waters be they primary, secondary,

tertiary, etc. since 1975, a construction that comports with Congress’ intent to control pollution at its source and broadly protect

the integrity of the aquatic environment.’’ The question is, do you

agree that in order to achieve the goals of the Clean Water Act to

restore and maintain the physical, chemical, and biological integrity of the Nation’s waters, pollution must be controlled at its

source, including wetlands and small streams that are

hydrologically connected to navigable waters?

Mr. SANSONETTI. The briefs speak for themselves as far as the

legal position. In regard to your comments about what a policy

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should be, I am afraid that particular question has to be answered

by my clients. They are the ones that determine the policies involved with the Clean Water Act.

Mr. KUCINICH. Would one of the gentlemen like to respond?

Mr. FABRICANT. As a legal matter, we follow the statute in the

Clean Water Act and associated regulations, and we have referred

cases that have involved those types of issues to the Department

of Justice who has submitted briefs on our behalf as we have laid

out.

As a policy matter, I am a General Counsel speaking to the legal

issue and would not address the policy matter here today.

Mr. KUCINICH. Mr. Fabricant, you mentioned bringing closure to

a number of issues on October 4. Would you elaborate what those

issues are?

Mr. FABRICANT. As referenced earlier, it is a series of questions

raised by Federal courts in the wake of the SWANCC decision that

we are looking at for a rulemaking.

Mr. KUCINICH. What are the issues?

Mr. FABRICANT. Issues such as intermittency of streams,

culverting issues that have come up in particular cases. Those are

examples of the things we are currently talking about specifically

raised by Federal courts as questions in light of SWANCC.

Mr. KUCINICH. Thank you.

[The prepared statement of Hon. Dennis J. Kucinich follows:]

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Mr. OSE. I am advised that we have three votes scheduled, which

will take who knows how much time, but they are scheduled very

soon. I have some additional questions and I want to run through

a couple quickly, then we will finish this panel. We will submit the

additional questions in writing and would appreciate a response in

a timely manner. Timely means a week to 10 days. I would be

happy to give you a date if you like.

Mr. Sansonetti, is the Justice Department litigating any cases involving adjacent wetlands?

Mr. SANSONETTI. I believe the answer to that is yes but none of

our current cases rely on the (a)(3) definition we discussed earlier

for jurisdiction.

Mr. OSE. Is (a)(3) the only location where adjacency is a criteria

in terms of wetlands?

Mr. SANSONETTI. I think not. I think (7) refers to wetlands adjacent to waters also.

Mr. OSE. Do you know whether or not we have a policy statement as to what is and what isn’t adjacent to a wetland?

Mr. SANSONETTI. I believe the regulation says adjacent is bordering, contiguous, or neighboring and those are what the fights are

about.

Mr. OSE. For which we have no statutory or regulatory definitions?

Mr. SANSONETTI. That is one of the items the Army Corps and

the EPA are going to have to deal with in the rulemaking.

Mr. OSE. I am kind of curious how you all can take the position

in a legal case when you don’t have these items defined.

Mr. SANSONETTI. If a case is filed, you don’t have a choice. If you

are sued and they come to you because they have made a decision

not to issue a permit and somebody says they should have issued

a permit, and the fight is over adjacency, then I need to defend the

Army Corps’ cut on it. Sometimes it is because they granted a permit, many times it is because they didn’t grant a permit.

Mr. OSE. In these discussions when these items are brought to

you, do you flesh out a position on what adjacency is or is not?

Mr. SANSONETTI. They are certainly discussed and they will say

in this particular instance, it was right next door to a navigable

tributary and surely that must mean adjacent. In other instances,

it is six miles away and somebody goes, are you sure? They say

that is why we didn’t say they needed a permit. Somebody else, an

environmental group, somebody wanting to stop the activity says

that it is close enough, you should have made them get a permit.

So the topic comes up continuously on a case-by-case basis.

Mr. OSE. I would be curious about your experiences in court.

How do you straddle these amorphous positions? I don’t get it. You

have a highly variable situation here. How do you prosecute your

defense?

Mr. SANSONETTI. It is part of the joys of practicing law, Congressman.

Mr. OSE. So you don’t know either.

Mr. Izzo, in the SWANCC decision, I want to go back to the term

navigable. In the SWANCC decision, the Court found, and I talked

to you about the quote on navigability, but that quote raises a

number of questions about non-navigable waters, including nonVerDate 11-MAY-2000 12:07 Aug 05, 2003 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 D:\DOCS\88327.TXT HGOVREF1 PsN: HGOVREF1
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navigable tributaries. I want to run through a series of questions

because I am trying to give you some food for thought, if you will,

in this meeting that is going to be held very soon.

If a water is connected to a truly navigable water, must there be

a continuous surface flow to render that water jurisdictional?

Mr. IZZO. If they are connected. If they are two bodies of water

connected, I think there is clearly jurisdiction.

Mr. OSE. What about an ephemeral stream?

Mr. IZZO. There it gets a bit more particular and that is one of

the issues we are looking at for rulemaking.

Mr. OSE. How about an agricultural ditch that was man made

so as to drain a field?

Mr. IZZO. Again, those are issues that we are looking at for rulemaking because these get very complicated. For example, in a dry

year, some of your ephemeral streams almost cease to exist by definition. You could go out there and with some of the public interested in getting permits, depending on the weather conditions,

which can be long term, something that was a wetland several

years ago may be gone now. We are wrestling with how to define

those issues in a rulemaking.

Mr. OSE. It is my understanding that ephemeral streams in some

areas of the country were not jurisdictional prior to SWANCC. Is

that true?

Mr. IZZO. I don’t know, sir.

Mr. OSE. Is there an upstream point on these ditches or ephemeral streams or tributaries at which a continuous flow would become sufficiently de minimis that it would no longer qualify as jurisdictional?

Mr. IZZO. Again, that is one of the issues that we need to look

at for rulemaking. We understand the problem completely. That is

why it has taken so long.

Mr. OSE. Is there a point at which flow would become sufficiently

ephemeral or temporary that a stream or tributary or ditch would

no longer qualify as jurisdictional?

Mr. IZZO. Same answer, sir.

Mr. OSE. The Clean Water Act does not incorporate into its jurisdiction groundwater by our reading. Does the agency consider a

groundwater flow to be a connection that can establish jurisdiction

over an upgradient water?

Mr. IZZO. I don’t want to speak for the EPA, but I believe they

stated in the past and the courts have agreed that groundwater

itself generally does not constitute waters of the United States.

However, under certain circumstances, that groundwater may provide a sufficient base for establishing a connection. Again, that is

something we should look at through rulemaking.

Mr. OSE. You are suggesting this groundwater might be navigable?

Mr. IZZO. No, sir, I am not suggesting the groundwater might be

navigable, but it might provide a sufficient connection

hydrologically to establish adjacency.

Mr. OSE. So if they turned off the pump, it would no longer be

adjacent?

Mr. IZZO. I wouldn’t want to get at that.

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Mr. OSE. Do you see the dilemma that constituents in everyone’s

district have?

Mr. IZZO. Yes, sir. I am very sympathetic to that and I would like

to believe that our Corps regulatory people in the districts are also

very sympathetic to that and that they are working with the regulated public to minimize these problems. I think that is why we

have so relatively few cases that make it to Mr. Sansonetti.

Mr. OSE. Is there a single standard nationwide for defining adjacency?

Mr. IZZO. No, sir. That is what the rulemaking is about.

Mr. OSE. Is there a single standard nationwide for defining isolated waters?

Mr. IZZO. No, sir. Again, we are going to address those things in

the rulemaking.

Mr. OSE. On October 4.

Mr. IZZO. On or before October 4.

Mr. OSE. At least at your level?

Mr. IZZO. At least at our level, yes, sir, we hope so.

Mr. OSE. I have to go vote.

I want to thank the witnesses for coming. I am determined that

you shall put out a rule. I am not trying to tell you what the rule

says, but I am intent on getting out a rule and getting the due

process started for the benefit of the country.

The issues of what is in or not in the courts are not going to

change. You are always going to have cases in court, so you might

as well face that and get on with it.

Mr. Sansonetti, Mr. Fabricant, Mr. Izzo, we appreciate you coming. I am determined to get this thing out one way or the other.

We deserve to know what the standards are. Whatever the rule is,

it is, but get it out.

We are going to recess until 12:15 p.m., so I would recommend

everyone go get a bite to eat. We have the room until 2 p.m. We

will be finished by 2 p.m. I will be back at 12:15 p.m. We are in

recess until then.

[Recess.]

Mr. OSE. We will reconvene the hearing of the Subcommittee on

Energy Policy, Natural Resources and Regulatory Affairs.

Joining us in our second panel are a number of witnesses: Virginia S. Albrecht, partner, Hunton & Williams; M. Reed Hopper,

principal attorney, Pacific Legal Foundation; Nancie G. Marzulla,

president, Defenders of Property Rights; Raymond Steven

Smethurst, partner, Adkins, Potts & Smethurst; Gary Guzy, partner, Foley Hoag, L.L.P.; and Patrick Parenteau, professor of law,

Vermont Law School. Welcome.

As I said earlier, we routinely swear our witnesses, so if you

would all please rise and raise your right hand.

[Witnesses sworn.]

Mr. OSE. Let the record show the witnesses all answered in the

affirmative.

We have received your written testimony; we have gone through

it. In the interest of time given that we have another subcommittee

coming in at 2 p.m., I would like to go through everyone’s oral testimony. If you can summarize, that would be great. Why don’t we

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go to 4 minute summary periods. That will expedite things and we

will go directly to questions.

Ms. Albrecht.

STATEMENTS OF VIRGINIA S. ALBRECHT, PARTNER, HUNTON

& WILLIAMS; M. REED HOPPER, PRINCIPAL ATTORNEY, PACIFIC LEGAL FOUNDATION; NANCIE G. MARZULLA, PRESIDENT, DEFENDERS OF PROPERTY RIGHTS; RAYMOND STEVEN SMETHURST, PARTNER, ADKINS, POTTS & SMETHURST;

GARY GUZY, PARTNER, FOLEY, HOAG, L.L.P.; AND PATRICK

PARENTEAU, PROFESSOR OF LAW, VERMONT LAW SCHOOL

Ms. ALBRECHT. Thank you for holding this hearing and giving me

the opportunity to come before you.

The SWANCC issue has been an issue of tremendous importance

for our clients ever since SWANCC was decided and actually the

issue of Clean Water Act jurisdiction long before SWANCC was decided.

Just to quickly summarize, I have given you extensive things including our Law Review article on the meaning of SWANCC and

the legislative history behind the Clean Water Act.

Mr. OSE. Those of you who have submitted attachments and exhibits, those are all going to be entered into the record.

Ms. ALBRECHT. I want to make three points. First of all,

SWANCC is about more than the migratory bird rule. The issue in

the case was the Corps’ application of the migratory bird rule to

claim jurisdiction over these isolated wetlands, but the rationale

the Supreme Court used in tackling that issue informs all decisions

about what the Clean Water Act means.

In the case, the reason they held these isolated waters were not

jurisdictional was the Court went back and said what was Congress trying to do when it passed the Clean Water Act and talked

about how Congress was exercising its authority to regulate navigation. That gets to the passage that you were questioning the witnesses about earlier. The Court said the use of the term navigable

indicates what Congress was trying to get to, its traditional authorities over navigation.

That means that jurisdictional theories based on effects on commerce are no longer valid theories because that isn’t what Congress

was trying to exercise. Those effects on commerce theories like use

by out-of-State travelers, use for shellfish sold in interstate commerce, those kinds of things are unrelated to navigation.

We would say—developed quite extensively in the article attached—those kinds of jurisdictional theories are no longer valid

after SWANCC.

Second, I wanted to make a point about the post-SWANCC cases

that have been decided. Mr. Sansonetti talked about how the Justice Department has filed 24 briefs. There have been 17 decisions.

It is really important to understand the procedural posture of most

of those cases.

About half of those cases—not quite half—were situations in

which one of the parties was trying to set aside a plea agreement,

a guilty plea, a consent decree, or something else which had been

entered into prior to SWANCC. After SWANCC came out, they

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came back and said, ‘‘I want to change my mind, I don’t want to

take that plea.’’

In those situations, the courts uniformly looked at that and said,

‘‘You made your bed; you are going to lie in it. We are not going

to go back and revisit that argument.’’ In the cases in which the

courts had been operating on a clean slate where they had been

looking in the first instance at whether something is jurisdictional

or is not, the Government has won about half of those cases and

the people challenging the Government’s jurisdiction have won

about half of those cases. So there are profound issues that have

come out and that are being decided.

A third point I would like to make is that when the migratory

bird rule was in effect, because migratory birds are everywhere, everything was jurisdictional. All the other jurisdictional tests kind

of fell by the wayside—what is tributary, what is adjacent, etc.

Now what has happened because the migratory bird rule did provide an umbrella and now that umbrella is gone, now these issues

about what is meant by adjacency, what is meant by tributary,

those are very, very important issues that need to be addressed.

One of the things that came earlier during testimony was whether or not a mere connection is enough. The Government in some

cases has been advancing that theory and it is incorrect. I hope you

will ask me some questions about it.

[NOTE.—Exhibits in support of statement of Ms. Albrecht may be

found in subcommittee files.]

[The prepared statement of Ms. Albrecht follows:]

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Mr. OSE. Thank you.

Mr. Hopper for 4 minutes.

Mr HOPPER. I wish to thank you for the invitation to present the

views of Pacific Legal Foundation on the significance of the

SWANCC decision and the lack of direction from the EPA and the

Corps as a result of that ruling.

The SWANCC decision was a warning about agency irresponsibility. The EPA and the Corps have a responsibility equal to the

Supreme Court to ensure they act within the scope of their statutory and constitutional authority. This is a responsibility that the

EPA and the Corps not only shirked but willfully abandoned. It

was irresponsible for these executive branch agencies to disregard

the plain language of the Clean Water Act and the intent of Congress, and champion an interpretation that in the words of the

Court ‘‘pushed the very limit of congressional authority.’’

Because the agencies’ interpretation created, rather than avoided, a constitutional conflict that likely would have resulted in invalidation of Section 404, the Supreme Court had to limit the scope

of the Clean Water Act to save the 404 Program. To ensure the

EPA and the Corps got the message and understood their responsibility, the Court in SWANCC clearly defined the reach of Federal

authority under Section 404 of the Clean Water Act. The EPA and

the Corps were put on notice that their jurisdictional claims over

virtually all waters in the United States were statutorily, and likely constitutionally, invalid.

To underscore its warning about agency irresponsibility, the

Court took pains to spell out the constitutional and federalism

problems the agencies’ course of conduct precipitated. As a result,

the SWANCC decision should have put an end to the sweeping authority these agencies have so zealously but illegally exercised over

non-navigable, non-adjacent, intrastate waters. But little has

changed.

The EPA and the Corps have not revised their unlawful rules or

issued a formal jurisdictional statement in keeping with SWANCC.

To the contrary, to this day, these agencies maintain and represent

in court that they have authority over any water that has a mere

surface connection to a navigable water, no matter how distant or

intermittent.

It is a remarkable breach of the public trust when Government

officials seek to extend their authority beyond any reasonable interpretation of the statutory law they are commissioned to enforce.

The EPA and Corps’ expansion of the term navigable waters to encompass all other waters of the United States including, at times,

potholes, puddles, and ditches is singular in its audacity. It is a

double breach when the same officials refuse to follow a decision

of the highest court that clearly delineates their statutory authority, like SWANCC, which is the focus of this hearing. Such officials

usurp the role of both Congress and the courts and become a law

unto themselves. We, the citizens, are left to conclude that the rule

of law has no meaning and that Federal rules and regulations are

based on bureaucratic whim.

Individuals in the regulated community have a right to know

what the Government authorities expect them to do to comply with

the law, but without a clear jurisdictional statement by the EPA

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and the Corps, no one knows what these agencies may claim the

law requires.

In the opinion of the Pacific Legal Foundation, these agencies

have failed to meet a legal and a moral obligation to clarify their

jurisdictional authority under Section 404 of the Clean Water Act

as interpreted by the Supreme Court.

Thank you.

[The prepared statement of Mr. Hopper follows:]

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Mr. OSE. Thank you, Mr. Hopper.

Ms. Marzulla.

Ms. MARZULLA. Thank you for having me and I would like to

echo what my two prior colleagues have said with respect to the

SWANCC decision. I agree that the reach of the SWANCC decision

goes beyond simply the migratory bird rule. It is very clear if you

read the SWANCC decision that the Court is talking about the regulatory jurisdiction of the Corps and the EPA over isolated wetlands. The Court further underscores the point that the Clean

Water Act is not coterminous with the Commerce Clause, so there

very clearly are constraints put upon the jurisdictional authority of

the these two agencies.

I would like to also step back a bit and talk generally about the

wetlands program and how these two agencies’ consistent overreaching and failure to abide by the clear language of the statute

and engage in a rulemaking approach that is overly broad and

vague has such tremendous impact on landowners.

I think it was a Congressman today who made the point that it

is the small landowner, the small businessman, who suffers when

you have agency rulemaking that goes so far beyond the reach of

the statute, that they are the ones that bear the brunt of the agencies’ failure to confine their authority to what Congress intended.

We urge this committee forward with its efforts to require the

agencies to engage in the type of rulemaking that will implement

SWANCC, that will confine their authority to what Congress intended. In some ways the issue before us today is who ultimately

is going to decide what these agencies will do. Will the agencies

continue with their approach of anything goes or will they alternatively confine themselves to the authority that Congress intended in the Clean Water Act?

We would urge that this subcommittee continue with close oversight. These are agencies that have a history of going off the reservation, and your oversight is welcome and appreciated.

[The prepared statement of Ms. Marzulla follows:]

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Mr. OSE. Mr. Smethurst.

Mr. SMETHURST. I appreciate the opportunity to supplement my

written remarks.

In 1975, a Federal District Court here in Washington found that

the Corps’ 1974 regulations did not regulate enough an ordered it

to enlarge their coverage. In 2001, the U.S. Supreme Court found

the Corps indeed had it right in their 1974 regulations, suggesting

that the current regulations go too far. Consequently, I was heartened to hear from the preceding panel that both the EPA and the

Corps are considering actually promulgating new regulations, because if there is one thing that the SWANCC case suggests, and

everyone seems to pretty much ignore, is the fact that the regulations, as they currently exist, may indeed go well beyond what Congress intended in 1974.

I come from an area where I deal with three separate districts

of the Corps of Engineers: Philadelphia, Baltimore, and Norfolk. I

can tell you as a practical matter, from personal experience and

discussion with those people in the field who do these delineations

and deal with Corps staff people on a day to day basis, it is utter

chaos out there. Not only is there a difference between districts in

how these terms are being defined, but there is a difference between people in the same district.

There is guidance out there. It is not written down and it varies

from district to district, and some within a district will comply with

that guidance and others in the same district throw it in the trash

can. So it depends upon in many cases who you are dealing with

as to what you get on behalf of your client.

What are the other things that need to be addressed? There have

been mentioned today tributaries. I would like to show you—as you

have mentioned, I am counsel in the Deaton case—a couple of

drawings I believe are on the screen. The first has to deal with the

subject of both tributary and adjacency.

The Deaton property is that little triangle in the upper righthand

corner of the drawing. It is sort of a stick drawing showing how

water flows from the area of the Deaton property through a series

of interconnected ditches, the major one of which I will show you

in a moment.

It passes over five separate dams before it finally reaches the

navigable waters of the Wicomico River which is a tidal, navigable

river leading to the Chesapeake Bay from the city of Salisbury on

Maryland’s Eastern Shore. It is eight miles from the Deaton property via these ditches and one stream, the Beaver Dam Creek, before you finally get to the east prong of the Wicomico River.

Some of the questions in this case involve some of the very points

mentioned so far. The Government contended that the ditch in

front of the Deaton property, a county constructed, county maintained, roadside drainage ditch put there to drain water off the

road so when it rains the road isn’t flooded.

No. 2 shows you the beginning of this ditch viewed looking toward the Deaton property from the very beginning point of this

ditch where it is nothing more than a slight swale in the ground.

Water will go in that little swale when it rains. Other than that,

probably not.

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Picture No. 3 looks upstream from the northeasterly side of the

Deaton property and this is what the stream looks like or the ditch

looks like just at the point before it passes in front of the Deaton

property. This is the water body argued to be a tributary.

Picture No. 4 depicts the roadside ditch, taken from where there

is a pipe under the road—looking at the very end of this roadside

ditch before it actually passes under the road and continues on as

another ditch on the other side of the road.

In the Deaton case, we were dealing with the definition of tributary primarily and definition of adjacency. If we can go back to

drawing No. 1, the U.S. District Court did not buy the tributary argument, but it did buy the adjacency argument, finding that wetland was adjacent to the Wicomico River eight miles away. That is

one issue on appeal.

I will stop now since I have exhausted my time.

[The prepared statement of Mr. Smethurst follows:]

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Mr. OSE. Mr. Guzy.

Mr. GUZY. I am pleased to testify on the continuing vital importance of protecting our Nation’s wetlands and water resources.

America’s wetlands need to be protected, they still can be protected

after the SWANCC decision, and that decision did not justify yet

another effort to attempt to roll back America’s environmental protections.

Before going into detail, let me tell you briefly about my background. I have practiced environmental law for the last two decades, including private practice, at the Department of Justice litigating wetlands cases, and at the Environmental Protection Agency

where I had the honor of serving as the agency’s general counsel

from 1998 to January 2001.

EPA and the Corps of Engineers protect our Nation’s wetlands

under the authority of the Clean Water Act. That law, which will

celebrate its 30th anniversary next month, was propelled by pollution so bad that our Nation’s rivers caught fire. Congress set forth

some very straight forward goals in the act, that the chemical,

physical, and biological integrity of the Nation’s waters needed to

be restored. This law has been a resounding success, returning significant portions of our landscape to health, to public enjoyment,

and to economic prosperity. Yet many waters remain toxic.

The United States has lost nearly one-half of its historic wetlands, on the order of 100 million acres, and continues to lose at

least 60,000 acres of wetlands each and every year. If we have

learned anything from the science that has developed over the last

30 years, it is that ecosystems are related. They cannot be treated

in isolation.

Protecting our Nation’s wetlands is even more important for protecting public health than originally understood. We are learning

that significant tracks of wetlands need to be restored, not lost, because they are understood to be essential and effective natural

means for protecting us from flooding, cleansing our waters from

pollution, purifying our drinking water, and providing crucial habitat.

We see this today in key areas from the Everglades in the Gulf

of Mexico to the Great Lakes, from the Chesapeake to the San

Francisco Bay delta, and the notion that some wetlands are truly

ecologically isolated is increasingly being regarded by scientists as

a myth of the past.

Federal regulation of wetlands was upheld by a unanimous Supreme Court in 1985 in Riverside Bayview Homes. There the Court

ruled that Federal jurisdiction extended beyond traditionally navigable waters, requiring permits for fill in wetlands adjacent to navigable waters and their non-navigable tributaries. That is why the

SWANCC decision represented a shift and why the Corps counsel

and I, working with expert career staff from both agencies and

from the Department of Justice, issued an explanatory memorandum shortly after the ruling.

What struck us most about that decision was how narrowly it

was drawn. The Court did not rule on the constitutionality of the

agency’s interpretation, although it expressed some doubts, but instead the ruling holds that the assertion of jurisdictions beyond the

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state waters, that are non-navigable, are isolated, and where jurisdiction is based solely on the waters’ use as habitat for migratory

birds for their effect on interstate or foreign commerce.

Equally striking was that the Court went to great pains to preserve its earlier ruling in Riverside Bayview, which recognized the

importance of a potential ecological connectedness between navigable waters and adjacent wetlands, even those beyond traditional

navigable waters.

For isolated waters, the Court simply did not reach the question

of whether some other rationale could demonstrate an effect upon

interstate commerce, such as when their destruction or degradation

impacts jurisdictional waters through flooding, erosion, or pollution.

As the SWANCC Court noted, Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to

regulate wetlands inseparably bound up with the waters of the

United States. SWANCC cannot fairly be viewed as a sweeping reordering of wetlands authority, somehow tethered completely to

100 year old concepts of navigability. Nothing in SWANCC requires

the wetlands rules to be rewritten.

As the Justice Department said in a brief, ‘‘the Supreme Court’s

refusal to expand Clean Water Act jurisdiction to isolated intrastate waters does not signal much less hold that the scope of Clean

Water Act jurisdiction approved in Riverside Bayview should be cut

back.’’

Rather than weakening wetland protections they need to be

strengthened in common sense ways. Unfortunately, today many

crucial wetlands are not being protected as the administration appears to be stepping back from asserting jurisdiction. Overall best

estimates are that 20 to 30 percent of the Nation’s wetlands are at

risk if so called isolated wetlands are not federally protected.

What is needed now is straightforward guidance, and I believe

there is no room under the current statute and the ongoing authority of Riverside Bayview to justify further limits on wetlands protection without a change in the underlying statute itself and thus

no warrant for delaying protections by undertaking the broader

regulatory process that the administration has spoken of.

If the real concern expressed by the regulated community is one

of predictability and certainty, and that is a fair concern, then the

easiest solution would be for Congress to amend the Clean Water

Act to remove any doubt about jurisdiction over isolated wetlands.

I commend to this subcommittee the recently introduced OberstarDingell bill, which would reaffirm Congress’ original intent to protect from destruction all water bodies, including wetlands, by replacing the term navigable waters throughout the act with the

phrase ‘‘waters of the United States,’’ and would help the Clean

Water Act keep pace with the evolving science, and would recognize the passion Americans truly feel for protecting clean and

healthy waters.

Thank you for the opportunity to testify and I look forward to answering your questions.

[The prepared statement of Mr. Guzy follows:]

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Mr. OSE. Thank you for coming.

Professor Parenteau.

Mr. PARENTEAU. Since it hasn’t been said before, I will say it

now, I think the Supreme Court got it wrong in SWANCC. I think

rulemaking is a bad idea. I think what is needed is legislation

clarifying the intent of Congress and restoring the law to where it

was before the SWANCC decision scrambled it.

This is, after all, the Clean Water Act we are talking about. It

is not the Navigation Improvement Act. I think the late Senator

Muskie would be shaking his head right now if he had heard the

discussion that took place in this room about the law he pioneered

in 1972 to remediate the terrible circumstances that existed in the

country at that time when rivers were spontaneously catching fire

as a result of their mistreatment through industrial, municipal,

and other discharges.

Navigable waters is defined in the Clean Water Act as ‘‘waters

of the United States.’’ Before the Clean Water Act was enacted in

1972, there was already a Federal program and a pollution control

program under the Rivers and Harbors Act that dealt with traditionally navigable waters and their tributaries. Congress did not

need to legislate a new law protecting those navigable waters,

hence the reason they chose the term waters of the United States.

One cannot read SWANCC without simultaneously reading the

Riverside Bayview Court’s opinion. That is, as suggested, a unanimous opinion of the Supreme Court. That is a remarkable feat.

That case involved a programmatic challenge to the 404 permit

regs and did not involve just a simple site specific challenge such

as we had in SWANCC. In Riverside the Court talked about the

aquatic ecosystem being an integrated ecosystem. The Clean Water

Act took a systemic approach. Water moves in hydrologic cycles,

pollution has to be attacked at its source. You cannot protect navigable waters in the valleys where you find them, you have to protect them in the head waters where they begin. That is what the

Clean Water Act has been doing successfully for 30 years.

Courts don’t send messages, courts don’t make policy, courts decide cases and controversies under Article 3 of the Constitution.

The SWANCC case presented one of the most narrow, conceivable

challenges. It presented a site specific challenge involving abandoned sand and gravel pits in northern Illinois where the sole basis

of jurisdiction asserted, incorrectly as it turns out since this site

sits on top of a drinking water aquifer, was used by migratory

birds. That is all the case involved, that is the question the Court

certified, that is the question the Court answered. It answered

nothing else. The rationale of that opinion is not entitled to any

more deference than the rationale in the Riverside case, and I

would suggest to far less because Riverside was a unanimous opinion, the first time the Court had looked at the Clean Water Act,

much more contemporaneous with the views of the Congress at

that time, much stronger opinion, clearly the intellectual superior

to the decision in the SWANCC case.

The SWANCC Court could have held that the regs were unconstitutional. That question was framed up as a Commerce Clause

question. It did not do so. The Court could have held that the

Corps and EPA regulations in the (a)(3) category we have been

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talking about exceeded the scope of statutory intent and statutory

authority. It did not do so. It was quite careful and quite precise

in saying we are striking down the migratory bird rule, which is

not a rule, rather it’s language from the preamble to a rule. Rulemaking is not necessary to deal with that. SWANCC did not invalidate any rules. What is the point of a rulemaking? Rulemakings

are to change the law. There is nothing that needs changing in the

law as a result of SWANCC. This is a ‘‘SWANCC made me do it’’

kind of fig leaf we are talking about here today. That is what we

are talking about, let us label it for what it is.

Rulemaking is a bad idea for the following reasons. What is the

public going to comment on? What we have heard discussion about

is the lower court opinions following SWANCC, which don’t deal

with (a)(3) waters which were dealt with in SWANCC, and whether

or not we agree with the briefs the Justice Department has filed

or the briefs the regulated community has filed? That is no kind

of rulemaking the public can meaningfully participate in and at the

end of the day, what are you going to do, side with the 10 percent

that have held there are questions about whether SWANCC applies to adjacent wetlands, or are you going to side with the 90 percent who held it does not? So the rulemaking is a waste of time.

Finally, the importance of isolated wetlands, I will simply say

this. It is indeed an irony that the Bush administration is announcing a rulemaking process that could result in the removal of major

areas of vital wetlands from protection under the Clean Water Act,

when it was President Bush, Sr. who pledged the Nation to a no

net loss of wetlands policy, which has been phenomenally successful in reducing the rate from some 400,000 acres to 60,000 acres

of loss a year.

President Bush, Sr. did not say, ‘‘No net loss of wetlands adjacent to navigable rivers and their tributaries.’’ He said, ‘‘No net loss

of wetlands.’’ It was a good goal then, it is a good goal now. I hope

this Congress would adhere to it.

Thank you.

[The prepared statement of Mr. Parenteau follows:]

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Mr. OSE. Thank you.

I do want to get everyone’s opinion in this first set of questions.

The Supreme Court stated, ‘‘We said in Riverside Bayview

Homes that the word ‘navigable’ in the statute was of limited effect

and went on to hold that Subsection 4049(a) extended to non-navigable wetlands adjacent to open waters but it is one thing to give

a word limited effect and quite another to give it no effect whatsoever. The term ‘navigable’ has at least the import of showing us

what Congress has in mind as its authority for enacting the Clean

Water Act, that is, its traditional jurisdiction over waters that were

or had been navigable in fact or which could reasonably be so

made.’’

Ms. Albrecht, given this rationale in the SWANCC decision, do

you believe there are alternative Commerce Clause connections

other than navigation that give the Corps and EPA jurisdiction

under Section 404?

Ms. ALBRECHT. No. I think the Court is very clear that Congress

was exercising its power over navigation. That means you have to

find a navigation foundation for any assertion of jurisdiction. That

means the Commerce Clause theories presently in (a)(3) are no

longer valid.

Mr. OSE. You are talking about fishing and stuff like that?

Ms. ALBRECHT. Yes, and the visits by out-of-State visitors and

things like that.

The Court actually in another part of the opinion, in addition to

the part you are citing, when talking about the Commerce Clause

arguments the Government had advanced, indicated great discomfort and declined even to really address those Commerce Clause arguments and indicated those Commerce Clause arguments were at

the edge of the Commerce Clause, so really took the case back to

look at what did Congress intend and look at the statute.

One other element was that the Court said when we are at the

edges of the Commerce Clause, which the assertion of jurisdiction

over isolated waters would take us, then we have to look for a clear

congressional statement of intent to regulate those very far removed areas. We don’t find that clear congressional statement. In

fact, what we find is a clear congressional statement in which the

Congress intends to preserve and protect the traditional authorities

of State and local government to regulate land and water use.

The Court looked at this case and said, if we would allow the assertion of jurisdiction over these isolated waters, it would impinge

on those traditional State and local functions, and we are not going

to allow that without finding a clear congressional intent.

Mr. OSE. I think I got your answer. Your answer is no.

Ms. ALBRECHT. That is right.

Mr. OSE. Mr. Hopper, same question.

Mr. HOPPER. My answer is addressed by a footnote. I also answer

no, but underscored by this footnote where the Court said—with

reference to the legislative history—that ‘‘neither this nor anything

else in the legislative history to which respondents point signifies

that Congress intended to exert anything more than its commerce

power over navigation.’’

I would even go so far as to suggest that Congress not only intended not to exercise its commerce power over anything other

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than navigation, but it could not have done so and be consistent

with the latest Supreme Court decisions in Lopez and Morrison.

Ms. MARZULLA. My answer is also emphatically no, and I will

give you one quick example of why allowing the agencies to move

beyond navigation essentially gives the agencies a blank check to

declare a wetland, is what they believe is a wetland as opposed to

what the statute requires with the term navigation.

I represent clients in Reno, Nevada that own what was once a

ranch that was irrigated in the early 1900’s with snowmelt from an

adjacent mountain. The melted snow was carried down to the

ranch via pipes and, with irrigation, you could grow crops. Obviously, the land is no longer used as a ranch, and our client planned

to develop the property for an industrial park. The Corps originally

delineated the land in 1987 as ‘‘not a wetland,’’ which is not a surprising result given that the average rainfall is about 4 inches.

Subsequently, environmental groups objected, the Corps came in

and redelineated, declaring that the pipelines were tributaries and

the land was criss-crossed with these tributaries and hence, wetland. That is the type of wetland decisionmaking when you have

rules that exceed the plain language of the statute.

Mr. OSE. So it is your position that there are no alternative Commerce Clause connections providing jurisdiction under Section 404?

Ms. MARZULLA. That is correct.

Mr. OSE. This is remarkable to get clarity in these answers. I

hope the rest is as clear.

Mr. Smethurst.

Mr. SMETHURST. Prior to SWANCC, I would not have said ‘‘no’’

because the language in Riverside Bayview was not that precise,

not that clear, but after SWANCC, I would say frankly to my surprise, I think the answer is no.

Mr. OSE. Mr. Guzy.

Mr. GUZY. I would differ with the other witnesses. I want to refer

you to the rest of the language that you quoted from SWANCC

when the Court notes that the term navigable is of limited import,

it goes on to say, ‘‘and that Congress evidenced its intent to regulate at least some waters that would not be deemed navigable

under the classical understanding of that term.’’

SWANCC itself recognizes that Congress’ intent was to go beyond navigability. Navigability in and of itself is not the complete

touchstone for the analysis. It goes on to explain that ‘‘Congress’

concern for the protection of water quality and aquatic ecosystems

indicated its intent to regulate wetlands inseparably bound up with

the waters of the United States.’’

I think if you look at that question, you begin to see an array

of connections with navigable waters or waters of the United States

where there can be a very fundamental impact. Take for example,

recent flooding in the Red River where it has been linked to the

demise of extensive expanses of prairie potholes that may be regarded as isolated wetlands, but the consequence of filling in those

wetlands upstream is that they no longer can serve the purpose of

isolating and filtering water; and all that water, and all that sediment, and all those pollutants went downstream to affect navigable

waters themselves.

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Let me add one more point, the consequence of all this. The consequence of a jurisdictional determination is that someone then has

to come to the Corps of Engineers to apply for a permit, not that

they cannot engage in an activity in and of itself. The experience

has been that some 95 percent of permits are granted, not that people are prohibited from doing the fill activity itself.

I would submit that with a series of needed reforms, the Corps

of Engineers and EPA are beginning to get it right for small property owners so that the wetlands rules aren’t a burden on small

property owners, although more clarification certainly could be

helpful.

Mr. OSE. You are referring to the phrase where the Court extended to non-navigable wetlands adjacent to open waters?

Mr. GUZY. I was referring to the phrase—I am not sure what version of SWANCC you have—at 121 S. Ct. 680 where in the United

States at 167 version, right after the Court says, ‘‘In so doing, we

noted that the term ‘navigable’ is of limited import,’’ and it goes on

to say, ‘‘that Congress evidenced its intent to regulate at least some

waters that would not be deemed navigable under the classical understanding of that term.’’

Mr. OSE. Not navigable.

Mr. GUZY. Yes. I am sorry.

Mr. OSE. Professor.

Mr. PARENTEAU. If I remember the question, I think my answer

is yes.

Mr. OSE. The question is do you believe there are alternative

Commerce Clause connections that give the Corps and EPA jurisdiction under Section 404?

Mr. PARENTEAU. Yes, I do. It is true that Congress’ jurisdiction

begins with navigable waters, but it certainly does not end there.

That is the important point about the SWANCC decision. It did not

strike down anything on constitutional grounds or Commerce

Clause grounds. It barely addressed that other than to say if Congress means this, they need to say so more clearly.

In the Riverside case, which I find to be remarkably clear and

unambiguous compared to SWANCC, the Court made a point of

saying that the goals of the Clean Water Act cannot be accomplished without extending beyond traditional notions of navigable

waters, hence their reference to the fact that the term navigable

waters is of limited import.

Indeed, when the statute itself defines the term navigable waters

as waters of the United States, one wonders why the SWANCC

court went back to the term navigable waters. That was not, as

Justice Stevens so aptly pointed out in dissent, the question presented. The question presented was, what did Congress mean in

1972 by the term waters of the United States, and the legislative

history of the 1972 act made it absolutely clear. The conference report, the Senate report, the House report, these are the top level

of legislative history. This is where courts place the most emphasis

in looking for evidence of congressional intent and every one of

those reports repeated the same thing which is, we are authorizing

the agencies to exercise their authority to the limits of the Commerce Clause.

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We have a parallel line of cases under the Endangered Species

Act, a subject which probably raises more than a little hackles in

the room, but nevertheless there are now five reported decisions,

two of which are circuit court decisions, in both of which the Supreme Court denied cert, upholding the Endangered Species Act in

the regulation of areas of the country far more isolated, far more

intrastate than anything we are talking about here today.

Mr. OSE. What do you mean when you say they were denied

cert?

Mr. PARENTEAU. What I mean is that the Supreme Court declined to review decisions of the lower courts upholding the constitutionality of the Endangered Species Act in circumstances

which frankly raise much more significant questions about the authority of Congress to regulate purely intrastate matters than

these.

Mr. OSE. That means the Supreme Court agreed with the lower

court?

Mr. Parenteau. Right—well, we don’t know whether they agreed

or disagreed. All we know is that four of them didn’t vote to review

it, which is significant.

What I am saying is there is a body of law that hasn’t been discussed. I would be happy to provide the committee with this and

others if they would like to look at it, which has actually been looking at these questions of Commerce Clause authority in the context

of intrastate land use activities and has concluded unanimously

that the Federal Government has ample authority under the Commerce Clause to regulate activities like that. Granted, it is under

a different statute, I am not saying you import it wholesale. What

I am saying is that in terms of a constitutional analysis, the Government, and the Congress, and the executive branch have full use

of all the arguments that have been made in Commerce Clause

cases to bring economic activity within the power of government to

regulate when they impact matters of national interest.

One of the great ironies of SWANCC, frankly, was that it struck

down the regulation on the basis of migratory bird use. Justice

Holmes in Missouri v. Hollins said, ‘‘There is scarcely a matter of

greater national importance than protecting and preserving our migratory waterfowl.’’ So the Court actually chose a case that was the

worst case to choose from the standpoint of questioning Commerce

Clause authority, because the Supreme Court has previously validated Federal authority with regard to migratory birds across the

board.

Mr. OSE. Mr. Guzy, if I might, I think the Professor has an excellent point. It seems to me while you were at EPA, the claim of jurisdiction was based on the migratory waterfowl aspect and its connection to the Commerce Clause, and there were no other assertions that I am aware of other than migratory waterfowl.

There is an argument to be made that absent other assertions,

that couldn’t be made. I am unclear why the previous delineations

or whatever you call them as it relates to jurisdictional waters only

made the migratory waterfowl assertion.

Mr. GUZY. Before the SWANCC Court itself.

Mr. OSE. Or similar such situations, yes.

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Mr. GUZY. I recall asking a fairly similar question myself. It is

right that the SWANCC proceedings were quite lengthy. They extended over a very long period of time. The Corps initially had

made a decision that site was not jurisdictional, then it went back

and revisited it and ascertained that in fact there was significant

migratory bird activity at the site.

I don’t know if then they looked for other types of jurisdictional

nexuses but in hindsight, it does become apparent that there may

be some very significant concerns about the location of that facility

above a drinking water aquifer. That is an example of the kinds

of concerns that arise if you simply wipe out Federal jurisdiction

over isolated wetlands.

Mr. OSE. The Corps’ jurisdictional claim though, if I understand

SWANCC on its reexamination, was based on the migratory waterfowl connection?

Mr. GUZY. I am sorry?

Mr. OSE. The Corps’ jurisdictional assertion of this being subject

to regulation was based on a revisit and a finding that the site in

question in fact served migratory waterfowl?

Mr. GUZY. That is correct.

Mr. OSE. So the initial determination was this was not jurisdictional, then they went back and revisited it and on the basis on migratory waterfowl, and they made a jurisdictional claim?

Mr. GUZY. That is my memory of the circumstances in SWANCC.

Mr. OSE. And then, the Supreme Court at the end threw that out

as a rationale for claiming jurisdiction?

Mr. GUZY. That is correct.

Mr. OSE. Anyone have anything to offer clarifying that or educating me? Mr. Smethurst.

Mr. SMETHURST. Because there was no connection between the

migratory waterfowl and anything having to do with navigation, it

wasn’t a Commerce Clause decision.

Mr. OSE. It was a decision based on the actual intent of Congress

in passage of the legislation?

Mr. SMETHURST. Yes, and that intent being directed primarily in

the direction of navigation aspects of which migratory waterfowl

simply don’t have any relevance.

Mr. OSE. Professor Parenteau cited House and Senate report language and the actual conference committee and the recitation of

the citations he made in terms of the legislative history and yet

what I am hearing both in the initial panel and this panel is that

the Court made a different citation of the history of this legislation,

relying on the word navigable and its plain meaning, if you will.

Am I misunderstanding this? Ms. Albrecht.

Ms. ALBRECHT. I think the legislative history, you need to read

and read it carefully and what it says because it has been misconstrued consistently over the years, including a few sloppy references by courts.

In fact, what the conference report said was that the conferees

intend that the term navigable waters be given ‘‘the broadest possible constitutional interpretation unencumbered by agency determinations which have been made previously for administrative

purposes.’’ They were talking about what is the meaning of navigable waters and in the situation, when you go back and look at

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the legislative history, what you see leading up to the Clean Water

Act was about a 5-year dialog between the Corps of Engineers and

the Congress, in which the Corps of Engineers had been declining

to exercise its full powers even under the Rivers and Harbors Act,

that although it had jurisdiction over the navigable waters, it

wasn’t exercising jurisdiction to the full extent of the navigable waters.

What Congress did in that 5-year run up was to say we, ‘‘We

want you to go to the full extent of the navigable waters.’’ That is

different from saying, ‘‘we want you to go to the full extent of commerce authority.’’ The full extent of the commerce authority is a familiar jurisdiction that you all can exercise very frequently when

you take jurisdiction over something that could have an effect on

commerce and that can be very broad. This was tied specifically to

this term navigable waters.

Mr. PARENTEAU. If I might be able to read directly from page six

of my testimony, you can look it up, as they say. This is the language from the various reports. To me it is striking in terms of

what the Supreme Court did in SWANCC.

‘‘One term that the committee was reluctant to define, starting

with the House report, this language carries through Senate and

conference, the committee was reluctant to define the term ‘navigable waters.’ The reluctance was based on the fear that any interpretation would be read narrowly. The committee fully intends the

term ‘navigable waters’ to be given the broadest possible constitutional interpretation.’’

You can cite other segments of the legislative history until the

cows come home, as we say in Vermont, but it will not change the

collective judgment of this body represented in these reports, not

the views of individual Representatives and Senators, the views of

the body itself. This stands as the definitive statement from 1972

on how that term was to be used. I challenge anybody to say that

means navigation.

Mr. HOPPER. I will take that challenge.

Mr. OSE. Mr. Hopper, educate me a bit here. I have a copy of

Washburn Law Journal.

Mr. PARENTEAU. Yes, Mr. Broom’s article.

Mr. OSE. With the same citations and it says, ‘‘The committee

fully intends 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.’’ Does that mean that the agencies shall not be

asked or given the authority to interpret?

Mr. PARENTEAU. It means that the prior administrative determinations of what constitutes navigable waters aren’t controlling

anymore. It means it is a new day, a new statute, a brand new

statute.

Mr. OSE. It says ‘‘which have been made or may be made.’’ It is

not retrospective, it is both.

Mr. PARENTEAU. Right. It is both. It is primarily retrospective because there were determinations that were very narrow but it is

also forward looking because they are saying to the agencies, don’t

in the future confine yourselves to questions of navigability. We are

talking about clean water. We are talking about restoring and

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maintaining the chemical, physical, and biological integrity of the

Nation’s waters. That cannot be done within the confines of a statute limited to navigability. It cannot be done. What we are saying

is the goal Congress set in 1972 was ridiculous.

Mr. OSE. The part I am struggling with here, and I am trying

to get to where we provide the maximum level of protection for the

quality of water we enjoy, but what I am trying to get to is the

point where we have the certainty that Mr. Guzy was talking about

earlier for people who are otherwise engaged in activities subject

or not to jurisdiction, but also that leads us to a point that is substantiated both in law and practice and legislative history.

I understand your argument about clean water and the chemical

composition and all that, but I am trying to get back to the actual

law or the legislative history. I can tell you there are about three

chemists in Congress right now, and you don’t want us making

chemical determinations, I can guarantee you.

So again, unencumbered by agency determinations which have

been made or may be made for administrative purposes, that to me

seems like a critical phrase here in terms of constraining who may

or may not define navigable waters.

Mr. PARENTEAU. Unencumbered to me means don’t think about

it the way you used to think about it. Think about it in the context

of protecting the aquatic ecosystem. As the Riverside Court said,

the word integrity was further defined. This is an amazing point

of sophistication I think in 1972. The term integrity was further

defined to mean maintaining structure and function of the aquatic

ecosystem. That is what wetlands do.

Mr. OSE. I went on to Washburn’s article.

Mr. PARENTEAU. That is a student article, let us call it what it

is. It wouldn’t have gotten an ‘‘A’’ in my class, but go ahead. I have

read it, I have thought about it.

Mr. OSE. The citation goes on to include the comments from Senator Muskie wherein he equated ‘‘the broadest possible constitutional interpretation with the waters’ use as part of the continuing

highway over which commerce is or may be carried on.’’ This

strikes too what I think some have highlighted—I think Mr.

Smethurst in particular with the pictures he put up there—what

is jurisdictional and what isn’t, going back in the legislative history. I am trying to figure out how to reconcile a continuing highway over which commerce is or may be carried on with jurisdictional claims eight miles from the head waters of the Chesapeake

Bay contributor or whatever.

Mr. HOPPER. I read to you earlier a portion of footnote 3 from

SWANCC. I will read to you now its entirety. It relates to the comment the professor made where he cited the quintessential statement of intent in the legislative history showing that Congress

wanted this to be interpreted to its fullest constitutional extent. I

cite this as the quintessential statement of the Supreme Court on

what that legislative history means.

‘‘Respondents refer us to portions of the legislative history they

believe indicate Congress’ intent to expand the definition of navigable waters. Although the conference report includes the statement that the conferees intend that the term ‘navigable waters’ be

given the broadest possible constitutional interpretation, neither

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this nor anything else in the legislative history to which respondents point signifies that Congress intended to exert anything more

than its commerce power over navigation.’’

‘‘Indeed, respondents admit that the legislative history is somewhat ambiguous.’’ So now we have the Supreme Court interpretation.

Mr. OSE. I can tell you there is some ambiguity in my mind here.

Mr. SMETHURST. This is why I made the statement earlier that

I think one of the most significant aspects of the SWANCC decision

is just exactly what Mr. Hopper read, because in effect the Supreme Court is saying if you want to see what Congress really intended by the 1972 legislation, go back and look at the 1974 regulations promulgated by the Corps. That is why I came here to urge

you to urge the agencies to get on with either guidance or a reexamination of their regulations because implicit in what the Supreme Court is saying is the current regulations go too far.

Mr. OSE. I think the word ambiguity is an interesting word in

this context.

I want to go on to another question. In the SWANCC decision,

the Supreme Court stated, ‘‘In order to rule for respondents here,

we would have to hold that the jurisdiction of the Corps extends

to ponds not adjacent to open water but we conclude that the text

of the statute will not allow this.’’

In your interpretation, Professor, how does this rationale in the

SWANCC decision affect the jurisdiction of the Corps and EPA, if

at all?

Mr. PARENTEAU. That is the most troublesome statement in the

SWANCC decision. I have said that in the testimony. I acknowledge that is a troublesome statement. If you took that statement

at face value, or to put it another way, if that were the holding of

the case, we wouldn’t be here talking about this the way we are

talking about it.

You have to take statements like that in the context of statements that have been made in the past by the Supreme Court,

namely the Riverside Bayview case, again, I cannot stress it

enough, a unanimous decision, not a sharply divided five to four

decision, a unanimous decision of the Supreme Court.

Under the SWANCC rationale, the wetland in Riverside probably

wouldn’t have been jurisdictional. There has been talk about that

Riverside wetland being adjacent to or abutting open bodies of

water. It was not. If you look at not only the decision in Riverside

and the way Justice Stephens describes the decision in his dissent

in SWANCC, and in fact, if you go back as I have to the transcripts

of the oral argument in Riverside, it is quite clear that the area in

question was far removed from the lake itself. It was part of a larger complex of wetlands. It was wet by virtue of groundwater and

precipitation. There was no definite hydrological connection established between that wetland and the lake.

That is why the Riverside court goes into such detail talking

about aquatic ecosystems and integrated approaches to dealing

with water quality. It was an ecological approach that the Supreme

Court used in Riverside. That is why the Court used the term significant nexus, not adjacency, not abutting, not open water. They

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were talking about what is the significant nexus between the area

to be regulated and navigable waters.

I fully agree the agencies are way behind in issuing guidance on

what that term significant nexus means. That is where the focus

ought to be. It ought to be on a scientifically sound methodology

to determine in what circumstances do isolated wetlands have a

significant nexus to navigable waters without regard to proximity.

That is an irrelevancy in science. The question is, what function

are these water bodies performing, and do those functions relate to

the quality of navigable waters, not just quantity but quality of

navigable waters?

That is where the inquiry ought to be, not on some phoney rulemaking about what lower courts are ruling in the wake of

SWANCC. That is not going to get us anywhere.

Mr. OSE. Mr. Guzy, in your interpretation, this comment included in the Supreme Court’s decision, how does this affect the jurisdiction of the Corps and EPA?

Mr. GUZY. I have actually sort of studiously refrained in my testimony so far from criticizing the SWANCC decision itself, because

I do believe that for agencies who have to interpret it, it is the rule

of the land but it is not all that exists. It doesn’t exist in isolation.

Mr. OSE. Would you define that?

Mr. GUZY. It exists along with the other body of precedent including Riverside Bayview Homes. To me the language you just

read actually is one place that illustrates the internal confusion in

the decision itself. The analysis that the Chief Justice is talking

about doesn’t necessarily go only to open waters, the phrase that

he uses, but rather when you go back to the language of the statute

to waters of the United States and navigable waters of the United

States, which may be other than open waters. They may, in fact,

be a variety of things, tributaries, wetlands, a variety of things but

not necessarily open waters. That is why I found this particular

quotation interesting that you would choose it, because it really

does illustrate the internal confusion and inconsistency in the decision itself.

The consequence of this holding, if you were to read it the way

that you and Professor Parenteau suggest, is not limited under the

structure of the Clean Water Act merely to 404 wetlands determinations. The act treats discharges under 402, which is the industrial effluent discharge section, and under the Oil Pollution Act

provisions the same way in terms of the initial jurisdictional

threshold of navigable waters of the United States.

That is why the consequence of a ruling that extreme could in

fact be so severe, because not only would you be talking about the

ability unregulated in a Federal manner to place fill into wetlands,

you also potentially could be talking about the ability to discharge

poisons such as arsenic, to discharge things such as oil contamination in a way that could have fundamental effects upon downstream neighbors. That is an enormous concern.

Mr. OSE. Mr. Smethurst? The question is whether or not this citation in the Supreme Court decision affects in your interpretation

the jurisdiction of the Corps and EPA having to do with ponds and

not adjacent to open water?

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Mr. SMETHURST. I think, viewed in light of the legislative history

and looking to the regulations the Corps promulgated in 1974 and

even revised in the aftermath of the Calloway case in 1975, as the

Supreme Court has noted, they are different. A wetland is not a

water body. It has been brought in under the definition of waters

of the United States from a regulatory standpoint, but you will not

find any discussion of wetlands in the legislative history. In fact,

in the original 1974 regulations, wetlands were not even regulated.

They were merely a factor that the Corps was admonished to consider when making a permit decision under 404.

Mr. OSE. Are you saying that these things have been manufactured?

Mr. SMETHURST. Have been what?

Mr. OSE. Have been manufactured from a regulatory standpoint?

Mr. SMETHURST. From my experience, absolutely. Initially following the 1972 act, you didn’t see much of a change. I have been dealing with this since 1972 and litigating cases since 1972. Most of

them don’t get to the level they are now. It wasn’t, for instance,

until 1985 approximately that you saw any assertion or any mention of the term wetland beyond marshes, swamps, and things like

that.

The initial term that was applied when the Corps began to reach

inland to things like what I call an isolated wetland isn’t a pond,

it is a forested wetland, it may not even have trees on it, may be

a low area in the ground that has the requisite hydric soils and the

hydrophitic vegetation. It may not actually look like a swamp but

that is what was called in those days an upland wetland. You won’t

find that in any regulation, but that is what it was being called by

the Corps of Engineer field people. That didn’t happen until 1985.

Originally, if you go back and look, the concern of Congress, to

the extent you can find any in the legislative history over wetlands,

had to do with basically tidal marshes, estuaries, shallows, and

things like that. In fact, Muskie, if I am not mistaken both at the

time of the 1972 legislation and again as late as the 1977 amendments came out, was assuring other Members of Congress that this

only applied to marshes, bogs, tidal flats, and things like that, and

would not apply to inland wetlands.

The biggest problem these days is not with respect to your

marshes, tidal flats, and so forth. It is the kind of property you see

in the Deaton case, which I couldn’t show you too well. It is nothing more than woods in which in the dead of winter, the soils are

damp. You don’t need to wear galoshes to walk around that property. That now meets the Corps’ definition of a wetland. There is

no water on it unless it is raining, but it meets the Corps’ definition of a wetland. This is where things have sort of gotten out of

control from a pure statutory, application standpoint.

Mr. OSE. Statutory or regulatory?

Mr. SMETHURST. Both.

Mr. OSE. I am not aware of any amendments to the Clean Water

Act that would have attempted to define wetland or adjacency,

open water.

Mr. SMETHURST. The Supreme Court in Riverside said essentially

as a result of the 1977 amendments, Congress was deemed to have

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lands. Those are basically the ones that immediately adjoin a water

body where the Court said it is difficult to determine, from a practical standpoint, very understandably, where does the water end

and the land begin.

If you go around the Chesapeake Bay and see where you have

marshes adjoining actual open water, this is the kind of thing they

were talking about. Those kinds of wetlands are clearly as a result

of Riverside, Bayview jurisdictional.

Mr. OSE. Ms. Marzulla.

Ms. MARZULLA. I will continue along the vein that Mr. Smethurst

was giving in his opinion. To answer your question directly, I read

this language from SWANCC to send a very strong signal to the

Corps and the EPA that their authority over isolated wetlands is

limited, if not nonexistent. I recall that SWANCC is a statutory

construction case. There the Court is asked to test the regulation,

the assertion of jurisdiction against the statute. It is the language

of the statute that governs the conclusion that the Court is supposed to reach. The Court can resort to legislative history only if

the language is so vague, so ambiguous that they can’t tell what

the language means. Obviously, the Court felt that it did have to

go back to legislative history. Finding that unhelpful, it made its

best guess as to what navigable meant.

I would respectfully suggest, however, that the reason why courts

are in confusion over wetland interpretation, why landowners are

confused about what they can do, what they can’t do, when they

are going to be subject to million dollar civil penalties as the landowner in the Borden ranch case which now is before the Supreme

Court had slapped on him, when they might be subject to criminal

sanctions for violating wetland rules, is because the agencies have

been making up wetland regulations for years. Congress has left

the agencies basically to make it up as they go and because courts

have rules that require them to defer to agency rulemaking, there

has been no judicial check on agency rulemaking. The only check

we have is Congress. We need your help, your involvement, because these agencies need very clear guidance to make sure they

are doing what you want them to do.

Mr. OSE. Mr. Hopper, same question.

Mr. HOPPER. This language is the bright line rule that we are always looking for but seldom see in a court opinion. It clearly restricts, confines the jurisdiction of the Corps to traditional navigable waters and those that are immediately adjacent. There has

been some suggestion that this cannot be read in isolation, that we

need to go back and look at Riverside Bayview. But the court did

that for us and told us quite explicitly what the court had held and

what the court had not held, saying that in United States v. Riverside Bayview, we held that the Court had 404 jurisdiction over wetlands that actually abutted on a navigable waterway. That is what

the Court held. Then it said, ‘‘Indeed in that case we did not express any opinion on the question of the authority of the Corps to

regulate discharges of fill material into wetlands that are not adjacent to bodies of open water.’’ That is what the court did not hold

in Riverside Bayview.

The reason for mentioning it is because the Court intended to answer it and in SWANCC it did so with that language you preVerDate 11-MAY-2000 12:07 Aug 05, 2003 Jkt 000000 PO 00000 Frm 00166 Fmt 6633 Sfmt 6633 D:\DOCS\88327.TXT HGOVREF1 PsN: HGOVREF1
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viously read: ‘‘In order to rule for respondents here, we would have

to hold that the jurisdiction of the Corps extends to ponds that are

not adjacent to open water’’—notice they didn’t use the word isolated—‘‘but we conclude that the text of the statute will not allow

this.’’

Mr. OSE. Ms. Albrecht.

Ms. ALBRECHT. I concur. I would like to also point out what was

at stake in Riverside Bayview. I happen to have here the Government’s brief in Riverside Bayview. This is how they describe those

adjacent wetlands. They said, ‘‘There is direct, unimpeded access

from the mid-east boundary of Riverside’s property to additional

marshes and the open waters of Black Creek, a navigable water of

the United States. Indeed, it would not be an exaggeration to state

that one could, after wading through a cattail marsh, swim directly

from Riverside’s property into the Great Lakes.’’ That was the wetland that was described as adjacent and was held in Riverside

Bayview to be jurisdictional. You could swim from the wetland to

the Great Lakes. I think that is a very important issue.

Mr. OSE. A person or a fish?

Ms. ALBRECHT. I am not sure if it was a person. However, at oral

argument, the Government lawyer said, ‘‘This is, in fact, an adjacent wetland, by adjacent I mean it is immediately next to, abuts,

adjoins, borders, whatever other adjective you might want to use,

navigable waters of the United States.’’ This is what the Supreme

Court in SWANCC was relying on, and I think the passage you are

asking us about is an indication of the Supreme Court saying, ‘‘yes,

we stand by our decision in Riverside Bayview in which we held

that adjacent wetlands, meaning wetlands that are actually abutting a navigable waterway, are jurisdictional, but other waters that

are not adjacent in that sense of the word, not actually abutting,

are not jurisdictional because of the text of the statute, navigable

waters will not allow it.’’

Mr. OSE. Here is the difficulty I have. I have a two o’clock hearing coming behind me and I have to clear out of here no later than

1:40 p.m. I have about 3,000 more questions for you all but we are

not going to get them all done. With your cooperation, we will submit to you these questions in writing and we would appreciate a

timely response, meaning very soon.

I do have an additional question I want to ask you. Given what

may be accurately described as ambiguity in some of these issues,

my good friend from Minnesota is attempting to remove the ambiguity from this issue by proposing an amendment to the Clean

Water Act that will remove the word navigable from Section 404,

thereby eliminating questions to whether or not congressional intent was that everything should be jurisdictional.

I don’t want to prejudge that, but I would be curious about your

position on Mr. Oberstar’s proposal to effectively make every body

of water jurisdictional to the Corps’ effort. Ms. Albrecht.

Ms. ALBRECHT. I think before you went to that you would want

to look at what the States are doing. And, a lot of States are regulating wetlands and have programs that address wetlands. I do a

lot of work in California and Florida, two of the biggest development States. I do believe if the Corps of Engineers and EPA did

not have a permitting program there, the wetlands in California

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and Florida would be subject to the same strong protections. So I

am doubtful that you need that strong Federal involvement to overwhelm the States. I would like the Federal Government to consider

and I think one of the reasons you want a rulemaking is to draw

a line so that the States will know where the Federal Government

is not going to be regulating and then the States can make a determination.

The other thing I would say, and there are some examples in my

attachments, the Federal Government has been regulating as tributaries hillside gullies, little rivulets that are one foot wide and

forty feet long. Under no stretch of the imagination do those demand Federal regulation as important aquatic resources.

Mr. OSE. If I understand your response, you do not support Mr.

Oberstar’s proposal to amend the Clean Water Act to remove the

word navigable from the writing thereof?

Ms. ALBRECHT. You are right.

Mr. OSE. Professor.

Mr. PARENTEAU. I do support it. The States are doing a fine job.

One-third of the States have some legislation to address this problem, two-thirds do not. The problem is that without a floor of protection across the country provided by the Federal Government, we

are going to lose substantial numbers of these wetlands. Maybe we

will lose them because States don’t have the capability to address

and regulate them, maybe in some cases the States don’t want to

do that. Who knows. The point is, there is room for both Federal

and State involvement in this program. There has been from day

one. Some of the States have taken advantage of that, some have

not. The ones that have taken advantage of it are supporting Federal jurisdiction over the remainder so that their efforts are not

frustrated, and so that they are not economically disadvantaged by

regulating development of wetlands when their sister States do not

and attract away businesses to them on that basis. That is the

principal, central reason you need national legislation when you

are dealing with nationally important resources, which these clearly are.

The reason the current navigable restriction ought to be removed

is why we are here today. It is a vexing, distracting, ultimately

unsatisfying inquiry as to what in the world it means. That is not

what we are talking about. What we are talking about is the chemical, physical, biological integrity of the Nation’s waters, the aquatic ecosystem and all the important things that wetlands do to serve

that. So we need legislation.

Mr. OSE. So you support Mr. Oberstar’s proposed amendment?

Mr. PARENTEAU. Yes.

Mr. OSE. Mr. Hopper.

Mr. HOPPER. I oppose it. That word navigable is probably the

only word that keeps that statute constitutionally valid. The Court

in SWANCC established a three-part test. I think if you compare

what you are saying might be proposed with the three-part test expressing the concerns of the court in SWANCC, it would fail.

First of all, the Court already indicated in SWANCC that the assertion of Corps jurisdiction over these non-adjacent ponds pushed

the very limits of congressional authority, meaning it raised serious

Commerce Clause concerns.

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Second, the Court was concerned about federalism; specifically

that there was undue impingement by the Federal Government

into the State’s power to control land and water use. Under the 404

program, the Corps and the EPA have veto power over local land

use projects that affect jurisdictional waters. There can be no greater impingement. It would be more so under the proposed amendment.

Third, the current objective expressly stated in the act is to protect the States’ power to control local land and water use. If this

amendment were to pass, the objective of the statute would have

to change. For the worse, I believe.

Mr. OSE. So you would oppose Mr. Oberstar’s amendment?

Mr. HOPPER. Yes, absolutely.

Mr. OSE. Mr. Guzy.

Mr. GUZY. In addition to the reasons already stated, I would

identify for you four reasons why I would suggest you and the rest

of the subcommittee and the committee support Mr. Oberstar’s effort.

First, certainty is always a good thing. We have heard a call for

certainty from the regulated community. There apparently is some

confusion among those out in the field and the agencies who are

charged with applying this law, so giving them clarity would certainly be beneficial.

Second, much of what we have talked about today when you get

right down to it has been something of a fiction that is a relic from

how this law has developed. It is a fiction because as the science

has developed, it has shown that isolated wetlands just really don’t

exist in actuality in ecosystems. They have in almost every instance some kind of connection to a greater ecosystem and to the

kinds of things which the Clean Water Act is designed to protect,

so this would modernize the Clean Water Act much the same way

that Congress modernized the Safe Drinking Water Act in the

1990’s when it recognized you want to look at the source of pollution as much as you want to protect the finished drinking water

product.

Third, it would modernize it to address pollution, not just navigability.

Last, in addition to your friend Mr. Oberstar, I would point out,

I think it is telling that your friend from Michigan, Mr. Dingell, is

also a sponsor of that bill. He managed the 1972 amendments on

the floor and he has said in his statements upon introduction of

their bill that he wants to take this to get back to what that Congress’ original intent was and that SWANCC has unfortunately

taken us off that path.

For all those reasons, I think it is a very sound approach.

Mr. OSE. Ms. Marzulla.

Ms. MARZULLA. I oppose it, and my suggestion is that it would

take the ambiguity from one word and put it on another. Again, if

Congress wants to protect dry dirt and isolated prairie dustballs as

wetland, then fine, Congress can do so. My suggestion is that Congress pass a wetland protection law, and let us have our fight out

there, but leave the Clean Water Act to its purpose, to prohibit the

discharge of a pollutant into the waters of the United States. It

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was never designed to be a wetland protection law, that is why we

are in this mess in the first place.

Mr. OSE. Mr. Smethurst.

Mr. SMETHURST. Two points. One, as currently drafted, I am not

sure it would be wise to see the Federal Government become so intrusive in the lives of almost each and every citizen, because basically under that definition, as I read it, once that water leaves the

down spout of your house, it is Federal water.

Two, I know the Corps of Engineers does not have the resources

to administer that kind of jurisdiction. They don’t have the resources today to administer this ever continuing, expanding jurisdiction they assert.

I heard the statement in here that 90 percent of the permits are

approved. What they don’t tell you is how many permit applications either aren’t made because people cannot afford it or are

withdrawn because they get hassled so long and harassed so long

and delayed so long. Part of the reason even where there is no hassling and no intentional delay is simply because the Corps does not

have the money to have the people in the field to take care of these

cases. It is almost like social workers who have too darned many

cases to deal with and they can’t deal adequately with the cases

that are assigned to them. Those are my reasons. So go slow is

what I am saying.

Mr. OSE. For the reasons enunciated by each of you, Professor,

you support putting all the waters wherever they may be under the

jurisdiction of the Corps?

Mr. PARENTEAU. Assuming there is a scientifically valid methodology that identifies those areas that belong in the system, yes.

Mr. OSE. Mr. Guzy, you support it. Mr. Smethurst, you are skeptical at the least.

Mr. SMETHURST. Very skeptical.

Mr. OSE. Ms. Marzulla, you are definitely skeptical, if not in outright opposition. Mr. Hopper, you oppose. Ms. Albrecht, you oppose.

OK. I have a clear understanding of where you all stand on that.

It is 1:41 p.m. and I want to express my appreciation to each of

you for your patience today, given the votes. I do appreciate your

rather remarkable attempts to educate me today. Most of it sank

in, and I am grateful for your taking the time. Someday I might

even be a student. Thank you for coming. We will be sending you

questions. We would appreciate a timely response.

With that, we will adjourn.

[Whereupon, at 1:41 p.m., the subcommittee was adjourned, to

reconvene at the call of the Chair.]

[The prepared statement of Hon. John F. Tierney and additional

information submitted for the hearing record follows:]

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