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S. HRG. 109–1071 

INTERPRETING THE RAPANOS/CARABELL 

SUPREME COURT DECISION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON FISHERIES, 

WILDLIFE, AND WATER 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

AUGUST 1, 2006 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

JOHN W. WARNER, Virginia 

CHRISTOPHER S. BOND, Missouri 

GEORGE V. VOINOVICH, Ohio 

MICHAEL D. CRAPO, Idaho 

LINCOLN CHAFEE, Rhode Island 

JOHN CORNYN, Texas 

LISA MURKOWSKI, Alaska 

CRAIG THOMAS, Wyoming 

WAYNE ALLARD, Colorado 

JAMES M. JEFFORDS, Vermont 

MAX BAUCUS, Montana 

HARRY REID, Nevada 

BOB GRAHAM, Florida 

JOSEPH I. LIEBERMAN, Connecticut 

BARBARA BOXER, California 

RON WYDEN, Oregon 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

ANDREW WHEELER, Majority Staff Director 

KEN CONNOLLY, Minority Staff Director 

SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND WATER

LINCOLN CHAFEE, Rhode Island, Chairman 

JOHN W. WARNER, Virginia 

LISA MURKOWSKI, Alaska 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

HILLARY RODHAM CLINTON, New York 

JOSEPH I. LIEBERMAN, Connecticut 

FRANK R. LAUTENBERG, New Jersey 

BARACK OBAMA, Illinois 
(III) 

C O N T E N T S 

Page 

AUGUST 1, 2006 

OPENING STATEMENTS 

Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island .................. 1 

Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New York ........ 5 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 7 

Jeffords, Hon. James M., U.S. Senator from the State of Vermont .................... 10 

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 15 

Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska ........................... 12 

WITNESSES 

Adler, Jonathan H., Professor of Law, Co-director, Center for Business Law 

and Regulation, Case Western Reserve University School of Law .................. 32 

Prepared statement .......................................................................................... 76 

Responses to additional questions from: 

Senator Chafee .......................................................................................... 81 

Senator Inhofe ........................................................................................... 82 

Senator Jeffords ......................................................................................... 83 

Senator Murkowski ................................................................................... 87 

Buzbee, William W., Professor of Law, Director of Environmental and Natural 

Resources Law Program, Emory Law School .................................................... 34 

Prepared statement .......................................................................................... 87 

Responses to additional questions from: 

Senator Chafee .......................................................................................... 91 

Senator Inhofe ........................................................................................... 94 

Senator Jeffords ......................................................................................... 95 

Senator Murkowski ................................................................................... 96 

Clayton, Chuck, The Izaak Walton League of America ........................................ 36 

Prepared statement .......................................................................................... 97 

Responses to additional questions from: 

Senator Chafee .......................................................................................... 98 

Senator Inhofe ........................................................................................... 100 

Senator Jeffords ......................................................................................... 101 

Cruden, John C., Deputy Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice ....................................... 21 

Prepared statement .......................................................................................... 63 

Responses to additional questions from: 

Senator Bond ............................................................................................. 75 

Senator Chafee .......................................................................................... 69 

Senator Inhofe ........................................................................................... 71 

Senator Jeffords ......................................................................................... 73 

Senator Murkowski ................................................................................... 75 

Grumbles, Benjamin H., Assistant Administrator For Water, U.S. Environmental Protection Agency; And John Paul Woodley, Jr., Assistant Secretary 

of the Army for Civil Works, Department of the Army .................................... 18 

Prepared statement .......................................................................................... 50 

Responses to additional questions from: 

Senator Bond ............................................................................................. 61 

Senator Chafee .......................................................................................... 54 

Senator Inhofe ........................................................................................... 55 

Senator Jeffords ......................................................................................... 56 

Senator Murkowski ................................................................................... 62 
Page

IV 

Kisling, Keith, National Association of Wheat Growers, National Cattlemen’s 

Beef Association ................................................................................................... 39 

Prepared statement .......................................................................................... 103 

Responses to additional questions from: 

Senator Inhofe ........................................................................................... 105 

Senator Jeffords ......................................................................................... 105 

ADDITIONAL MATERIAL 

Article, ELR News & Analysis; Could SWANCC Be Right? A New Look 

at the Legislative History of the Clean Water Act ............................................ 124 

Letters: 

Environmental Protection Agency (EPA) ....................................................... 48 

Frank H. Murkowski, Governor, State of Alaska .......................................... 109 

Undersigned by: American Rivers, Audubon, Clean Water Action, 

Earthjustice, Environmental Integrity Project, Friends of the Earth, 

Natural Resources Defense Council, River Network, Sierra Club, U.S. 

Public Interest Research Group ................................................................... 141 

Statements: 

Croton Watershed Clean Water Coalition (CWCWC) ................................... 123 

Feingold Hon. Russ, U.S.Senator from the State of Wisconsin .................... 17 

State of Alaska, Position on the Reach of Federal Wetlands Jurisdiction 

Under the Clean Water Act ......................................................................... 117 

Undersigned by: Earnest Ballard, Gregg D. Renkes, Tom Irwin, Kevin 

Duffy, Mike Barton ....................................................................................... 110 
(1) 

INTERPRETING THE RAPANOS/CARABELL 

SUPREME COURT DECISION 

TUESDAY, AUGUST 1, 2006 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND WATER, Washington, DC. 

The subcommittee met, pursuant to notice, at 2:30 p.m. in room 

406, Dirksen Senate Office Building, the Honorable Lincoln Chafee 

(chairman of the committee) presiding. 

Present: Senators Chafee, Inhofe, Jeffords, Lautenberg, Murkowski, and Clinton. 

OPENING STATEMENT OF HON. LINCOLN CHAFEE, U.S. 

SENATOR FROM THE STATE OF RHODE ISLAND 

Senator CHAFEE. Good afternoon. This is the Subcommittee on 

Fisheries, Wildlife and Water, and a hearing on The Water of the 

United States: Interpreting the Rapanos/Carabell Decision. 

Welcome to today’s subcommittee hearing. This is of course as a 

result of the recent U.S. Supreme Court decision in the joint cases 

of Rapanos v. United States and Carabell v. U.S. Army Corps of 

Engineers. 

As you know, the Constitution creates a Government of limited 

power. Congress can only enact legislation in areas that are specifically set out under the Constitution. Congress is specifically prohibited from enacting legislation in other areas, leaving this authority 

to the States for the 10th Amendment. In the 10th Amendment, it 

says the power is not delegated to the United States by the Constitution or reserved to the States respectively or to the people. 

Every law enacted by Congress must be based on one of the powers 

enumerated in the Constitution. The framers of the Constitution 

gave Congress broad power to regulate immigration, national security and economic activity between the States and left most of the 

powers to the States. 

However, Section 8 of Article I states that the Congress shall 

have the power to regulate commerce among the several States. 

This is the Commerce Clause, and it is the most powerful provision 

in the Constitution providing Congress the authority to enact legislation in a host of areas, including environmental protection. 

The Clean Water Act is one of our most successful environmental 

statutes, aimed at restoring and maintaining the chemical, physical 

and biological integrity of the Nation’s waters. Originally enacted 

in 1948, the Act was amended numerous times until it was reorganized and expanded in 1972. Among the provisions include in the 
2 

1972 Act was Section 404, which in combination with Section 

301(a) requires persons wishing to discharge dredged or fill material into navigable waters to obtain a permit from U.S. Army Corps 

of Engineers. 

At the same time, Congress defined navigable waters under the 

broad term of the waters of the United States, and indicated in the 

conference report to the 1972 Act that this new phrase was intended to be given ‘‘the broadest possible constitutional interpretation.’’ The new definition for ‘‘navigable waters’’ was retained during the 1977 amendments to the Clean Water Act, after Congress 

debated and ultimately rejected amendments that would have narrowed the corps’ jurisdiction under the Section 404 program. 

Solid Waste Energy of Northern Cook County v. The Army Corps 

of Engineers. In this case, the Supreme Court limited the authority 

of Federal agencies to extend the Clean Water Act protections to 

non-navigable, interstate, isolated wetlands based solely on their 

use by migratory birds. 

The Rapanos and Carabell cases, and the Supreme Court’s ruling 

once again raise significant questions in relation to the comprehensive nature of the Clean Water Act. In crafting the Clean Water 

Act in 1972 and amending the law in 1977, what geographic scope 

did Congress intend the Clean Water Act to encompass? Further, 

is the application of the Clean Water Act to the wetlands at issue 

in these cases a permissible exercise of Congressional authority 

under the Commerce clause of the Constitution? 

On June 19th, the Supreme Court held by a vote of 5-4 that the 

judgments of the Sixth Circuit in the joint cases of Rapanos and 

Carabell be vacated and remanded both cases to the lower court for 

further consideration. We are now here to analyze the Supreme 

Court’s ruling in these cases. The Rapanos case arose as a civil enforcement action filed by the United States in 2000, seeking penalties for the filling of Michigan wetlands without a Clean Water 

Section 404 permit. The Carabell petitioners were denied a Corps 

permit to fill in the wetlands on their property near Lake St. Clair 

in order to construct 130 condominium units. 

The Court presented us with a total of five opinions. In the 

Scalia plurality decision, four justices supported a more constrictive 

interpretation of the term ‘‘waters of the United States.’’ Through 

this interpretation, the plurality would place limits on waters flowing intermittently or ephemerally, exempt non-navigable interstate 

isolated waters associated with the SWANCC decision I referred to 

earlier from coverage under the Act, and require that wetlands covered by the Act be only those with a continuous surface connection 

to traditionally navigable waters. 

The Stevens and Breyer dissenting opinions stated that the 

corps’ existing approach regarding wetlands regulation is the correct interpretation of the Clean Water Act. It is Justice Kennedy’s 

opinion that one must look at most closely. While Kennedy agreed 

with the plurality to remand the cases, he rejects the plurality’s arguments regarding the need for continuous surface connection. Instead, Justice Kennedy sets up a ‘‘significant nexus’’ test, also 

raised in SWANCC, that requires regulators to determine on a case 

by case basis if wetlands have a significant nexus with navigable 

waters. 
3 

We have two panels of witnesses here today to assist the subcommittee and members of the full committee in interpreting the 

Rapanos/Carabell decision. Our two panels include witnesses representing the Federal Government as well as two legal experts and 

two witnesses representing the regulated and environmental community. 

As Congress continues to assess this ruling and determine 

whether legislative remedies are necessary to clarify the intent of 

the Clean Water Act, we look forward to your testimony and your 

interpretation of the joint cases. We also hope you will be able to 

shed some light on the situation. 

I am joined by the Chairman of the full committee, Senator 

Inhofe; Senator Murkowski; the Ranking Member of the subcommittee, Senator Clinton; Senator Jeffords, Ranking Member of 

the full committee; and Senator Lautenberg. I will now turn to the 

Ranking Member of the subcommittee, Senator Clinton. 

[The prepared statement of Senator Chafee follows:] 

STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE

STATE OF RHODE ISLAND

Good morning. Welcome to today’s subcommittee hearing on the recent U.S. Supreme Court decision in the joint cases of Rapanos v. United States and Carabell 

v. U.S. Army Corps of Engineers. 

As you know, the Constitution creates a Government of limited power Congress 

can only enact legislation in areas that are specifically set out under the Constitution. Congress is expressly prohibited from enacting legislation in other areas, leaving this authority to the States per the Tenth Amendment ‘‘The powers not delegated to the United States by the Constitution are reserved to the States respectively, or to the people’’. 

Every law enacted by Congress must be based on one of the powers enumerated 

in the Constitution. The Framers of the Constitution gave Congress broad power to 

regulate immigration, national security and economic activity between the States, 

and left most other power with the States. 

However, Section Eight of Article I states that ‘‘the Congress shall have the power 

to regulate Commerce among the several States’’. This is the Commerce Clause and 

it is the most powerful provision in the Constitution providing Congress the authority to enact legislation in a host of areas including environmental protection. A key 

Supreme Court case regarding the Commerce Clause was in 1942 when the Supreme Court upheld legislation that allowed USDA to set quotas on local wheat 

growing. The Court noted that while crops regulated may never actually enter into 

interstate commerce, such local activity, coupled with similar activity in other 

States as an aggregate has a direct impact on interstate commerce. Since then using 

the ‘‘aggregate effects test’’ or ‘‘substantial effects test,’’ Congress has passed broad 

ranging environmental legislation such as the Clean Water Act, which we are here 

to discuss today. 

The Clean Water Act is one of our most successful environmental statutes, aimed 

at restoring and maintaining the chemical, physical and biological integrity of the 

Nation’s waters. Originally enacted in 1948, the Act was amended numerous times 

until it was reorganized and expanded in 1972. 

Among the provisions included in the 1972 Act was Section 404, which in combination with Section 301(a) requires persons wishing to discharge dredged or fill 

material into ‘‘navigable waters’’ to obtain a permit from the U.S. Army Corps of 

Engineers. 

At the same time, Congress defined ‘‘navigable waters’’ under the broad term of 

‘‘the waters of the United States,’’ and indicated in the conference report to the 1972 

Act that this new phrase was intended to be given ‘‘the broadest possible constitutional interpretation’’. 

The new definition for ‘‘navigable waters’’ was retained during the 1977 Amendments to the Clean Water Act, after Congress debated and ultimately rejected 

amendments that would have narrowed the corps’ jurisdiction under the Section 404 

Program. 
4 

The last time the Supreme Court ruled on a major Clean Water Act case was in 

2001 with Solid Waste Agency of Northern Cook County v. Army Corps of Engineers 

(SWANCC). In this case, the Supreme Court limited the authority of Federal agencies to extend Clean Water Act protections to non-navigable, intrastate, ‘‘isolated’’ 

wetlands based solely on their use by migratory birds. 

The Rapanos and Carabell cases and the Supreme Court’s ruling have once again 

raised significant questions in relation to the comprehensive nature of the Clean 

Water Act In crafting the Clean Water Act in 1972, and amending the law in 1977, 

what geographic scope did Congress intend the Clean Water Act to encompass? Did 

the U.S. Army Corps of Engineers act reasonably in interpreting the term ‘‘waters 

of the United States’’ as it appears in the Act to encompass a broad range of wetland areas? Further, is the application of the Clean Water Act to the wetlands at 

issue in these cases a permissible exercise of Congressional authority under the 

Commerce Clause of the Constitution? 

Additionally, the Clean Water Act has broad authority over not only the wetlands 

permitting program, but also programs such as the Section 301 program governing 

discharges of pollutants; requirements to obtain permits prior to discharge under 

Section 402; water quality standards under Section 303; and oil spill liability, prevention, and control measures under Section 311, among others. All of these programs utilize the one definition of ‘‘navigable waters’’ that applies to the entire 

Clean Water Act. 

On June 19th, the Supreme Court held, by a vote of 5-4 that the judgments of 

the Sixth Circuit in the joint cases of Rapanos and Carabell be vacated, and remanded both cases to the lower court for further consideration. We are now here 

to analyze the Supreme Court’s ruling in these cases. 

The Rapanos case arose as a civil enforcement action filed by the United States 

in 2000, seeking penalties for the filling of Michigan wetlands without a Clean 

Water Act Section 404 permit. The question posed by this case is the Army Corps 

of Engineers’ jurisdiction over wetlands that are adjacent to non-navigable tributaries of traditionally ‘‘navigable’’ waters. 

The Carabell petitioners were denied a corps permit to fill in the wetlands on 

their property near Lake St. Clair in order to construct 130 condominium units. The 

question posed by this case is the Federal Government’s jurisdiction over wetlands 

that are not hydrologically connected to any ‘‘waters of the United States’’. 

The Court presented us with a total of five opinions—Justice Scalia issued a plurality opinion along with Chief Justice Roberts, Justice Thomas, and Justice Alito. 

Chief Justice Roberts wrote a separate opinion concurring with the plurality. Justice 

Kennedy wrote an opinion concurring in the judgment of the plurality. Justice Stevens, with whom Justices Souter, Ginsberg, and Breyer joined, wrote a dissenting 

opinion. Justice Breyer also issued his own separate dissenting opinion. 

In the Scalia plurality decision, four justices supported a more constrictive interpretation of the term ‘‘the waters of the United States’’. Through this interpretation, 

the plurality would place limits on waters flowing intermittently or ephemerally; exempt non-navigable, intrastate, ‘‘isolated’’ waters addressed in SWANCC from coverage under the Act; and require that wetlands covered by the Act be only those 

with a continuous surface connection to traditionally ‘‘navigable waters’’. 

The Stevens and Breyer dissenting opinions state that the corps’ existing approach regarding wetlands regulation is the correct interpretation of the Clean 

Water Act. It is Justice Kennedy’s opinion that one must look at most closely. While 

Kennedy agreed with the plurality to remand the cases, Kennedy rejects the plurality’s arguments regarding the need for a continuous surface connection. Instead, 

Justice Kennedy sets up a ‘‘significant nexus’’ test also raised in SWANCC that requires regulators to determine on a case-by-case basis if wetlands have a significant 

nexus with navigable waters. 

We have invited two panels of witnesses here today to assist the subcommittee 

and members of the full committee in interpreting the Rapanos/Carabell decision. 

Our two panels include witnesses representing the Federal Government, as well as 

two legal experts and two witnesses representing the regulated and environmental 

communities. As Congress continues to assess the Rapanos/ Carabell ruling and determine whether legislative remedies are necessary to clarify the intent of the Clean 

Water Act, we look forward to your testimony and your interpretation of the joint 

cases. We also hope you will be able to shed some light on the situation. 

Senator CHAFEE. Senator Clinton. 
5 

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, 

U.S. SENATOR FROM THE STATE OF NEW YORK 

Senator CLINTON. Thank you very much, Mr. Chairman. At the 

outset, I ask unanimous consent that a letter about the Rapanos/ 

Carabell decision, signed by the Crotan Watershed Clean Water 

Coalition, be made a part of the record. Senator Chafee. Without 

objection, so ordered. 

[The referenced letter can be found on page 123.] 

Senator CLINTON. This is an extremely important hearing, as it 

goes to the heart of the Clean Water Act, which I believe is one 

of our Nation’s greatest environmental success stories. We should 

just think back, before the Clean Water Act was enacted, rivers 

were so polluted they caught on fire. And wetlands were routinely 

filled with the blessing and even the assistance of the Federal Government. 

Thanks to those who crafted this invaluable statute back in 1972, 

and those who have implemented and enforced it ever since, we 

have come a very long way in cleaning up our Nation’s rivers, 

lakes, streams and coastlines, and in protecting valuable wetlands. 

But we still have work to do. The most recent water quality report 

for New York, for example, from 2002, indicates that 14 percent of 

our rivers and streams, 75 percent of our lakes, ponds and reservoirs, and 52 percent of our bays and estuaries are impaired, 

meaning they are not suitable for at least one designated use, such 

as recreation, drinking water, or fishing. So the implications of the 

Rapanos/Carabell decision are incredibly important. 

While the 4-1-4 decision of the Court largely left the protections 

of the Clean Water Act intact, it was a close call. Justice Scalia’s 

reasoning, supported by Justices Roberts, Alito and Thomas, would 

have eliminated protections for millions of acres of wetlands, tributaries and intermittent or ephemeral streams. That would have 

been a devastating result. 

The litigation centers, as the Chairman said, on the definition of 

the waters of the United States, a term that governs much more 

than just the wetlands fill program. In fact, that definition also applies to permits for discharge of pollutants, water quality standards, oil spill liability, prevention and control measures and enforcement. So the full range of Federal water quality protections is 

at issue. That is why so many stakeholders, including New York 

Attorney General Elliott Spitzer and 32 other attorneys general, 4 

former EPA administrators, the City of New York and many others 

filed amicus briefs supporting the Government’s position in this 

case. 

The Government’s position very briefly was, ‘‘the corps and EPA 

have acted reasonably in defining the Clean Water Act term the 

‘waters of the United States’ to include wetlands adjacent to tributaries of traditional navigable waters. The connection between traditional navigable waters and their tributaries is significant in 

practical terms, because pollution of the tributary has the potential 

to degrade the quality of the traditional navigable waters downstream. If tributaries of traditional navigable waters are covered by 

the Clean Water Act, then wetlands adjacent to those tributaries 

are covered as well.’’ 
6 

That is the Government’s position. I obviously agree with it. And 

I want to highlight one reason why this is so important to New 

York. Millions of New Yorkers rely on New York City’s drinking 

water, which has historically in many blind tasting tests been considered the best water, the best tap water in America. 

Now, New York City negotiated an agreement with the EPA 10 

years ago whereby the city did not have to filter water from its 

Catskills reservoirs. The water quality is highly dependent on the 

protection and treatment provided naturally within the nearly 

2,000 square miles of land that drain into the city’s 19 collecting 

reservoirs, including the extensive wetlands, approximately 25,800 

acres in the watershed area. That is why New York City filed an 

amicus brief, because they did an inventory of the wetlands in their 

watershed. Nearly 10,000 acres, or 40 percent, are not subject to 

regulation by New York or the city, because these are very small 

wetlands. But they are significant and provide very important 

water quality benefits. 

So the city thus relies on the Federal Government protection of 

its wetlands. So how we define the waters of the United States is 

not some abstract matter for New Yorkers. It has profound impact 

for the quality of our drinking water and on our water rates. And 

that is just one example of why this issue is so important. I think 

Congress needs to clarify this position and restore the strongest 

possible Federal protections for our Nation’s waters under the 

Clean Water Act. This is a success story, and we should not abandon the States and localities who have relied on this Act for more 

than 30 years. 

So Mr. Chairman, thank you for holding this important hearing, 

and I hope that we will be able to reach bipartisan agreement on 

legislative solutions. 

[The prepared statement of Senator Clinton follows:] 

STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR FROM THE

STATE OF NEW YORK

Thank you Mr. Chairman. 

At the outset, I ask unanimous consent that a letter about the Rapanos-Carabell 

decision signed by the Croton Watershed Clean Water Coalition be made a part of 

the record. 

This is an extremely important hearing, as it goes to the heart of the Clean Water 

Act, which is one of our greatest environmental success stories. Before its enactment, rivers were so polluted they caught on fire. And wetlands were routinely filled 

with the blessing or even assistance of the Federal Government. 

Thanks to those who crafted this invaluable statute back in 1972 more than 30 

years ago and those who have implemented and enforced it ever since, we have 

come a long way in cleaning up our Nation’s rivers, lakes, streams, and coastlines, 

and in protecting valuable wetlands. 

But we still have work to do. The most recent water quality report for New York, 

from 2002, indicates that 14 percent of rivers and streams, 75 percent of lakes, 

ponds and reservoirs, and 52 percent of bays and estuaries are ‘‘impaired,’’ meaning 

that they are not suitable for at least one designated use, such as recreation or 

drinking water. 

So the implications of the Rapanos-Carabell decision are very important. 

While the ‘‘4-1-4’’ decision of the Court largely left the protections of the Clean 

Water Act intact, it was a close call. Justice Scalia’s reasoning, supported by Justices Roberts, Alito and Thomas, would have eliminated protections for millions of 

acres of wetlands, tributaries, and intermittent or ephemeral streams. That would 

have been a devastating result. 

The litigation centers on the definition of ‘‘the waters of the United States,’’ a 

term that governs much more than just the wetlands fill program under directly at 
7 

issue in the case. In fact, that definition also applies to permits for discharge of pollutants, water quality standards, oil spill liability, prevention and control measures, 

and enforcement. 

So the full range of Federal water quality protections is at issue. 

And I think that is why so many stakeholders including the New York Attorney 

General and 32 other attorneys general, 4 former EPA Administrators, the city of 

New York, and many others filed amicus briefs supporting the Government’s position in this case. 

I want to briefly outline what the Government’s position in the case was. The 

Government argued that, quote: ‘‘the corps and EPA have acted reasonably in de 

fining the CWA term the waters of the United States’ to include wetlands adjacent 

to tributaries of traditional navigable waters. The connection between traditional 

navigable waters and their tributaries is significant in practical terms, because pollution of the tributary has the potential to degrade the quality of the traditional 

navigable waters downstream. If tributaries of traditional navigable waters are covered by the CWA, then wetlands adjacent to those tributaries are covered as well.’’ 

End quote. 

I agree with that assessment, and I want to highlight one reason why this is so 

important to my State, and in particular, to the millions of New Yorkers who rely 

on New York City’s drinking water. As I think my colleagues are aware, New York 

City negotiated an agreement with the EPA in 1997 whereby the city does not have 

to filter water from its Catskill reservoirs. But that water quality is highly dependent on the protection and treatment provided naturally within the nearly 2,000 

square miles of land that drain into the City’s nineteen collecting reservoirs, including the extensive wetlands approximately 25,800 acres in that watershed area. As 

I mentioned before, New York City filed and amicus brief in this case, and I want 

to read a portion of that brief. Quote: ‘‘Based on the City’s inventory of wetlands 

in the watershed of its water supply, nearly 10,000 acres, or 40 percent of these wetlands are not subject to regulation by New York State or the City because these 

smaller wetlands, which nonetheless provide significant water quality benefits, approximately 4,300 acres, or 43 percent, lack regular, obvious surface connections to 

surface waters The City thus relies on Federal protection of smaller wetlands within 

its watershed.’’ End quote. 

So how we define ‘‘the waters of the United States’’ is not an abstract matter for 

New Yorkers. It has profound impacts for the quality of their drinking water, and 

on their water rates, as building a filtration plant would cost billions of dollars. 

That’s just one example of why this issue is so important to my constituents. 

I think Congress needs to act to clarify this position, and to restore the strongest 

possible Federal protections for our Nation’s waters under the clean Water Act. We 

should not abandon States and localities, who have relied on the Act for more than 

30 years. 

Mr. Chairman, I thank you for holding this important hearing, and I hope that 

we can follow this with a hearing in the fall to look at possible legislative solutions. 

Senator CHAFEE. Thank you, Senator Clinton. 

Senator Inhofe. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. 

SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Chairman Chafee, for holding the 

subcommittee hearings. I would observe this is the first subcommittee hearing in this room since it has been rebuilt. So that 

steps it up a little bit. 

The Federal authority to regulate discharges into ‘‘waters of the 

United States’’ rests on the Constitution’s Commerce Clause. The 

discharge must in some way impact, we are talking about what the 

law is and what the courts have interpreted, impact interstate navigable waters. Many have sought to broaden this authority in the 

name of protecting the environment. However well-intentioned they 

may be, those who seek to expand Federal jurisdiction must do so 

within the bounds of the Constitution. 

We have wrestled unnecessarily with how to define the point at 

which the corps and the EPA exceed not just Congressional intent 
8 

but constitutional limitations since the passage of the Act in 1972. 

I agree with Senator Clinton on the significance of that successful 

Act in 1972. In its most recent decision on the matter, the Supreme 

Court has clearly sought to rein in the corps and narrow Federal 

jurisdiction. In the 2001 SWANCC decision, the Court struck down 

the corps’ jurisdiction over non-navigable, isolated, intrastate wetlands. However, the corps and EPA failed to issue new regulations 

reflecting the corps’ decision, instead pursuing a case by case analysis for these areas. 

In June of this year, the Court again visited the question of 

where the limits on Federal control over local land use decisions 

lie. While the Court didn’t go as far as I believe it should have in 

its Rapanos decision, the Court ruled that the corps had overstepped its authority by regulating areas as wetlands over which 

it had no jurisdiction. The plurality issued a strong defense of the 

Constitution. Justice Kennedy agreed that the corps had overreached and sent the case back to the Sixth Circuit for rehearing. 

In doing so, Justice Kennedy stated, ‘‘The dissent concludes that 

the ambiguity in the phrase navigable waters allows the corps to 

construe the statute as reaching into all non-isolated wetlands.’’ 

This, though, seems incorrect. 

The Clean Water Act, in addition to protecting the navigable 

waters, also protects the rights of the States to regulate and oversee waters within their borders. State and local Governments are 

fully able to step in and protect these water bodies as they see fit. 

Indeed, in most cases, this is the most appropriate means of protecting these areas. 

There are State and local environmental regulatory programs for 

isolated waters within 35 States. While many would argue that 

these are lacking resources, States have not stepped up to protect 

these areas because they have not needed to. They have yielded 

their authority to the Federal bureaucracy, all to eager to expand 

its power to regulate local land use. This trend must be reversed. 

Most of these intrastate, non-navigable areas are on private 

property. Behind me are some pictures of these intrastate, non-navigable areas. I say areas, because you will notice that most of them 

are dry. The Constitution protects the right of property owners to 

develop that property as he sees fit. The determination that a dry 

wash is a wetland immediately devalues that land and infringes on 

the right of an individual to use his land. 

Numerous State and local permits in regulations govern as appropriate the development of these properties. The decision on how 

to use these resources most appropriately belongs at the State and 

local levels of Government, where land use and community planning decisions belong. 

For those who might argue that this is just those property rights 

people being paranoid, we have heard that over and over again, 

here is a quote from a letter that EPA Region IX recently sent to 

the area Corps office, arguing that more Federal intrusion was 

needed to develop projects that have the support of the local communities in the State in which they are planned: ‘‘Through our permitting programs, the Federal Government is playing a central role 

[in this development].’’ It is not the right or the responsibility of 

the Federal Government to play a central role in any development. 
9 

How we define waters of the United States is critical to protect the 

rights of citizens, local Governments and States to regulate their 

lands. 

I hope the EPA and the corps will issue new definitions consistent with the Rapanos/Carabell decision that fully accounts for 

the constitutional limitations. 

And I would like to say, we will have a witness on the second 

panel from Oklahoma who is very familiar with some of the problems that we have out there. We have, I say to my fellow Senators, 

one county called Kingfisher County in Oklahoma, very arid county. It is very rare that there is any water. In fact, I don’t think any 

wetlands really exist there. I can remember during a town hall 

meeting there, one of the farmers who had 360 acres said that they 

had declared a problem with an acre and a half which destroyed 

the value of his entire property. 

And I have also felt, and I know that this view is not enjoyed 

by other members of this committee, or by many members of this 

committee, that having served on the local level of Government, 

having been a private property owner, having been on the State 

level, I have always felt that decisions made closer to the people 

are the best decisions. And that is consistent with my feelings 

about these court decisions and about the property rights involved 

in today’s hearing. 

I would ask unanimous consent, Mr. Chairman, I have an article 

from the Environmental Law Institute which gives an excellent 

history of the definition of navigable waters. I ask unanimous consent that it be inserted into the record at the conclusion of my remarks. Senator Chafee. Without objection, so ordered. 

[The referenced article can be found on page 124.] 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE

STATE OF OKLAHOMA

First, I want to thank Chairman Chafee for holding this subcommittee hearing 

on the effects of the recent Supreme Court decisions. Federal authority to regulate 

discharges into ‘‘waters of the U.S.’’ rests on the Constitution’s Commerce Clause. 

The discharge must in some way impact interstate navigable waters. Many have 

sought to broaden this authority in the name of protecting the environment. However well-intentioned they may be, those who seek to expand Federal jurisdiction 

must do so within the bounds of the Constitution. 

We have wrestled unnecessarily with how to define the point at which the corps 

and EPA exceed not just Congressional intent but Constitutional limitations since 

passage of the Act in 1972. In its most recent decisions on the matter, the Supreme 

Court has clearly sought to rein in the corps and narrow Federal jurisdiction. In 

the 2001 SWANCC (pronounced SWANK) decision, the Court struck down the corps’ 

jurisdiction over nonnavigable, isolated, intrastate wetlands. However, the corps and 

EPA failed to issue new regulations reflecting the corps decision instead pursuing 

case-by-case analyses for these areas. 

In June of this year, the Court again visited the question of where the limits on 

Federal control over local land use decisions lie. While the Court did not go as far 

as I believe it should have, in its Rapanos decision, the Court ruled that the corps 

had overstepped its authority by regulating areas as wetlands over which it has no 

jurisdiction. The plurality issued a strong defense of the Constitution. Justice Kennedy agreed that the Corps had overreached and sent the case back to the sixth 

circuit for rehearing. In doing so, Justice Kennedy stated, ‘‘[the dissent] concludes 

that the ambiguity in the phrase navigable waters’ allows the corps to construe the 

statute as reaching all non-isolated wetlands’. . . This, though, seems incorrect.’’ 

The Clean Water Act in addition to protecting navigable waters also protects the 

rights of the States to regulate and oversee waters within their borders. State and 
10 

local Governments are fully able to step in and protect these waterbodies as they 

see fit. Indeed, in most cases this is the most appropriate means of protecting these 

areas. There are State and local environmental regulatory programs for isolated 

waters in 35 States. While many would argue that these are lacking resources, 

States have not stepped up to protect these areas because they have not needed to. 

They have yielded their authority to a Federal bureaucracy all too eager to expand 

its power to regulate local land use. This trend must be reversed. 

Most of these intrastate, nonnavigable areas are on private property. Behind me 

are some pictures of these intrastate nonnavigable areas. I say areas because you 

will notice that most of them are dry. The Constitution protects the right of the 

property owner to develop that property as he sees fit. The determination that a 

dry wash is a wetland immediately devalues that the land and infringes on the right 

of the individual to use his land. Numerous State and local permits and regulations 

govern, as appropriate, the development of these properties. The decision on how to 

use these resources most appropriately belongs at the State and local levels of Government where land use and community planning decisions belong. 

For those who might argue, that this is just those property rights people being 

paranoid, here is a quote from a letter that EPA Region 9 recently sent to the area 

corps office arguing that more Federal intrusion was needed into development 

projects that have the support of the local communities and the State in which they 

are planned, ‘‘Through our permitting programs, the Federal Government is playing 

a central role [in this development].’’ It is not the right or responsibility of the Federal Government to play a central role in any development. How we define ‘‘waters 

of the U.S.’’ is critical to protecting the rights of citizens, Governments and States 

to regulate the use of their lands. I hope the EPA and the corps will issue a new 

definition consistent with the Raplocal Govanos/Carabel decision that fully accounts 

for the constitutional limitations on their authority. 

Senator CHAFEE. Senator Jeffords. 

OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. 

SENATOR FROM THE STATE OF VERMONT 

Senator JEFFORDS. Mr. Chairman, I am pleased to be here today 

at this oversight hearing evaluating the implications of the 

Rapanos/Carabell Supreme Court decision on the jurisdiction of the 

Clean Water Act. 

The Clean Water Act was passed in 1972 to restore and maintain 

the chemical, physical and biological integrity of the Nation’s 

waters. It was a landmark statute that completely overhauled the 

Nation’s clean water programs. We have made significant progress 

in cleaning up our waters, but we have more to do. 

Just a few months ago, the EPA issued its first assessment of the 

water quality in streams nationwide that are too shallow to support boat traffic, and found that 42 percent of them are in poor condition. In the northeast, 51 percent of these streams, many of 

which are fantastic fishing spots, are in poor condition. 

Upon hearing these numbers, my natural reaction is, let’s take 

action and help these waters recover. I am concerned that this 

Court decision, which I feel is completely contrary to the Congressional intent, would take us in the opposite direction, limiting clean 

water protections and leading to dirtier water. 

For example, in January the EPA stated in a letter that about 

59 percent of the length of shallow streams in this Country flow 

only part of the year. This is one of the categories of waters that 

could be excluded from the Clean Water Act protections under 

some interpretations of the Supreme Court decision. I ask that the 

EPA’s letter be entered into the record at this point. 

Senator CHAFEE. Without objection, so ordered. 

[The referenced letter can be found on page 48.] 
11 

Senator JEFFORDS. This test would ignore the fact that it is patently obvious to any observer that the water flows downstream 

from small bodies of water to larger ones. Sometimes it rains, 

sometimes it doesn’t. Just last week, it rained about 2 inches in the 

Phoenix, AZ area, causing widespread flooding. Some streams in 

that region recorded a one foot increase in flow over the course of 

2 hours. I am certain that any polluting sitting in those stream 

beds was washed downstream. This example shows that even if a 

shallow stream flows only part of the year, pollution will still make 

it downstream. 

With regard to the Administration planned response in this 

Court decision, I have a few concerns. The EPA depends heavily on 

the President’s goal of ‘‘overall gain’’ in wetlands to give reassurance that wetlands will remain protected. Today, I will be sending 

a letter to the President with several of my colleagues asking some 

detailed questions about the program. For instance, overall gain is 

a two-side question. You measure gains and you measure losses. 

Then you balance the equation and figure out how you are doing. 

I am concerned that wetland losses may not be included in your 

calculations, providing an overall optimistic view of the status of 

threatened waters nationwide. 

Second, I am concerned that the Administration will issue guidance in response to this case that is overly broad, just as they have 

done in response to previous Supreme Court decisions. Mr. Chairman, in 1977, my predecessor, Senator Bob Stafford of Vermont, 

stated, ‘‘The 1972 Federal Water Pollution Act exercises comprehensive jurisdiction over the Nation’s waters to control pollution.’’ It is a simple concept that Congress clearly needs to clarify 

with legislation in the wake of the Supreme Court decision. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Jeffords follows:] 

STATEMENT OF HON. SENATOR JIM JEFFORDS, U.S. SENATOR FROM THE

STATE OF VERMONT

Mr. Chairman, I am pleased to be here today at this oversight hearing evaluating 

the implications of the Rapanos Carabell Supreme Court Decision on the jurisdiction 

of the Clean Water Act. 

The Clean Water Act was passed in 1972 to restore and maintain the chemical, 

physical, and biological integrity of the Nation’s waters. It was a landmark statute 

that completely overhauled the nation’s clean water programs. 

We have made significant progress in cleaning up our waters, but we have more 

work to do. Just a few months ago, the EPA issued its first assessment of the water 

quality in streams nationwide that are too shallow to support boat traffic and found 

that 42 percent of them are in poor condition. In the northeast, 51 percent of these 

streams, many of which are fantastic fishing spots, are in poor condition. 

Upon hearing these numbers, my natural reaction is, let’s take action and help 

these waters recover. I am concerned that this Court decision, which I feel is completely contrary to Congressional intent, could take us in the opposite direction, limiting clean water protections and leading to dirtier water. 

For example, last January, the EPA stated in a letter that about 59 percent of 

the length of shallow streams in this country flow only part of the year. This is one 

of the categories of waters that could be excluded from Clean Water Act protections 

under some interpretations of the Supreme Court decision. I ask that the EPA’s letter be entered into the record. 

This test would ignore the fact that is patently obvious to any observer that water 

flows downstream from small bodies of water to larger ones. Sometimes it rains, 

sometimes it doesn’t. 

Just last week it rained about two inches in the Phoenix, AZ., area, causing widespread flooding. Some streams in that region recorded a one-foot increase in flow 
12 

over the course of only a few hours. I am certain that any pollution sitting in those 

streambeds was washed downstream. This example shows that even if a shallow 

stream flows only part of the year, pollution will still make its way downstream. 

With regard to the Administration’s planned response to this Court decision, I 

have a few concerns. The EPA depends heavily on the President’s goal of an ‘‘overall 

gain’’ in wetlands to give reassurance that wetlands will remain protected. 

Today I will be sending a letter to the President with several of my colleagues 

asking some detailed questions about the program. ‘‘Overall gain’’ is a two-sided 

question you measure gains and you measure losses, then you balance that equation 

and figure out how you’re doing. I am concerned that wetland losses may not be 

included in your calculations, providing an overly optimistic view of the status of 

these threatened waters nationwide. 

Second, I am concerned that the Administration will issue guidance in response 

to this case that is overly broad, just as they have done in response to previous Supreme Court decisions. 

Mr. Chairman, in 1977 my predecessor, Senator Bob Stafford of Vermont, stated, 

‘‘The 1972 Federal Water Pollution Control Act exercised comprehensive jurisdiction 

over the Nation’s waters to control pollution.’’ 

It is a simple concept that Congress clearly needs to clarify with legislation in the 

wake of this Supreme Court decision. 

Senator CHAFEE. Thank you, Senator Jeffords. 

Senator Murkowski. 

OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. 

SENATOR FROM THE STATE OF ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. Thank you for 

holding the hearing today. 

For about 30 years now, the courts have wrestled with how we 

define waters of the United States, and for about 30 years or more, 

they have produced different and certainly conflicting opinions. 

When the Supreme Court heard and decided the SWANCC case, 

the Solid Waste Agency of Northern Cook County, I think it raised 

hopes that the country would finally get some clear guidance. But 

that guidance has not been forthcoming, either from the Court or 

from the agencies or from Congress. 

The SWANCC decision did provide some rays of light. First, it 

indicated that not all wetlands can be considered navigable waters 

within the meaning of the Act. I guess I look at that and say, it 

is so self-evident that I find it amazing that there would be those 

that would argue otherwise. 

Secondly, it suggested that in order to be protected, a wetland 

must have a significant nexus with navigable waters. I think that 

too, seems self-evident. But the Court was reluctant to take that 

step of defining the term ‘‘significant nexus’’ and it was this test 

that is left for either the Agency or for Congress. 

As far as the Clean Water Act itself, I don’t think that there is 

anything at fault with the Act. The Act itself is clear. What is less 

clear, what is muddy is the implementation. This suggests to me 

that the Administration should take steps to clarify it. 

When we talk about the issue of how we define our waters of the 

United States and wetlands, this clearly affects all States, and we 

are hearing that from the committee members today. But it has 

significant impact to the State of Alaska. First, in the State of 

Alaska, we have some 174 million acres of wetlands. This is more 

than all of the other States combined. 

Secondly, much of those wetlands are vastly different in character than wetlands in the other States, many of our wetlands are 

frozen for nine or so months out of the year, and they are underlain 
13 

by a layer of permafrost. So their hydrologic functions are completely different than what you might see in other parts of the 

country. 

Now, I’m certainly not suggesting these wetlands are without 

value, but that their value may stem from different considerations 

than those perhaps envisioned by the Clean Water Act, and in that 

vein can’t be appropriately addressed by that Act. I want to make 

sure people understand, I am looking at this and suggesting that 

one size perhaps does not fit all. And rather than attempt to force 

all wetlands into a mold for which they are not well suited, it 

seems better to seek to clarify their status, which can best be done 

by administrative rulemaking. 

A majority of the Supreme Court justices appear to agree. Justice 

Breyer’s summary calls for regulations to be written speedily. Chief 

Justice Roberts pointed out that the failure to establish a rule in 

response to the SWANCC case helped ensure the result of the most 

recent cases. The Agency has had ample opportunity to act, and indeed the Corps and the EPA began the process after the SWANCC 

case, but unfortunately, by the beginning of 2004, that effort was 

abandoned, which leaves us now in a state of limbo. 

In April of 2003, the State of Alaska provided some very extensive comments for the previous rulemaking attempt. And these 

comments continue to be of value, as they clearly explain why not 

all wetlands are equal. In addition, in January of 2004, after that 

effort was abandoned, the State registered its dismay in a letter in 

which the Governor noted that asserting Clean Water Act jurisdiction over all wetlands without limitation would lead to a patchwork 

of conflicting court decisions and create uncertainty for all those involved, which is precisely our current situation. 

Mr. Chairman, I do have copies of both of these documents, the 

April 2003 comments from the State, as well as the January 2004, 

which I would like to have included as part of the record for this 

hearing. 

Senator CHAFEE. Without objection, so ordered. 

[The referenced documents can be found on page 111.] 

Senator MURKOWSKI. Mr. Chairman, I have one more paper prepared by the State which again argues that this matter demands 

a clear and consistent approach and that rulemaking is the appropriate measure to take. 

Senator CHAFEE. Without objection, that will be included also. 

[The referenced paper can be found on page 118.] 

Senator MURKOWSKI. So with that, Mr. Chairman, again I thank 

you for conducting the hearing this afternoon and look forward to 

the comments of the witnesses. 

[The prepared statement of Senator Murkowski follows:] 

STATEMENT OF HON. SENATOR LISA A. MURKOWSKI, U.S. SENATOR FROM THE

STATE OF ALASKA

Mr. Chairman, I want to thank you for holding this hearing. The country is deeply divided on the issue of appropriate wetlands protections, and the gap isn’t getting 

any narrower. For 30 years or more, the courts have wrestled with how to define 

‘‘waters of the United States.’’ For 40 years or more, they have produced different 

and conflicting opinions. 

When the Supreme Court heard and decided the Solid Waste Agency of Northern 

Cook County (SWANCC) case, it raised hopes that the country would finally get 
14 

some clear guidance. Unfortunately, such guidance has not been forthcoming, either 

from the court, or from the agencies, or from Congress. 

The SWANCC decision did provide some rays of light. First, it indicated that not 

all wetlands can be considered navigable waters within the meaning of the Act. 

That is so self-evident it is mind-boggling to think there are those who argue otherwise. 

Second, it suggested that in order to be protected, a wetland must have a ‘‘significant nexus’’ with navigable waters. That too, seems self evident. 

However, the court was reluctant to take the activist step of defining the term 

‘‘significant nexus.’’ That task is left either for the Agency or for Congress. 

Mr. Chairman, there are times when allowing another entity make the first move 

can be productive, and I believe this is one of those times. 

I don’t think there is anything at fault with the Clean Water Act itself. The Act 

is clear it is the implementation that is muddy. That suggests to me that the Administration should take steps to clarify it. 

This issue affects every State, but Alaska more than most, for two reasons: first, 

because Alaska has 174 million acres of wetlands, more than all the other States 

combined; and second, because much of those wetlands are vastly different in character than wetlands in other States frozen 9 months of the year and underlain by 

permafrost, so their hydrologic functions are completely different. 

Even the most casual observer if willing to look at the science of wetlands management rather than the politics of it, must accept the idea that not all wetlands 

serve the same function, nor are they equally important in cleaning and conditioning water resources, nor are they equally important in mitigating storm damage. 

Make no mistake I am not suggesting these wetlands are without value, but that 

their value may stem from different considerations than those envisioned by the 

Clean Water Act, and cannot therefore be appropriately addressed by that Act. One 

size does NOT fit all. 

Some people seem to believe that when it comes to wetland protection, the Clean 

Water Act is the only option. But that is not true. 

In fact, Alaska’s wetlands would be protected without Federal law, because Alaska’s Constitution mandates that its resources be managed under sustainable use 

principles, and the resulting pollution control statutes are among the nation’s strictest. In many ways that is purely self-interest; our Constitution was drafted in response to decades of Federal mismanagement, and we knew that keeping valuable 

resources such as fish and game populations at useful, productive levels meant conserving their habitats, as well. 

Rather than attempt to force all wetlands into a mold for which they are not wellsuited, it seems better to seek to clarify their status, which can best be done by administrative rulemaking. A majority of Supreme Court justices appear to agree. Justice Breyer’s summary calls for regulations to be written ‘‘speedily.’’ Chief Justice 

Roberts pointed out that the failure to establish a rule in response to the SWANCC 

case helped ensure the result of the most recent cases. 

The agency has had ample opportunity to act. Indeed, the Corps and the EPA 

began the process after the SWANCC case. Unfortunately, by the beginning of 2004, 

the effort was abandoned, leaving behind the limbo in which we now find ourselves. 

In April, 2003, the State of Alaska provided extensive comments for the previous 

rulemaking attempt. Those comments continue to be of value, as they clearly explain why not all wetlands are equal. In addition, in January of 2004, after the effort was abandoned, the State registered its dismay in a letter in which the Governor noted that asserting Clean Water Act jurisdiction over all wetlands without 

limitation would lead to a ‘‘patchwork’’ of conflicting court decisions and create uncertainties for all those involved precisely our current situation. 

Mr. Chairman, if there is no objection, I would like to have both those documents 

added to the record for this hearing. 

More recently, the State prepared yet another paper addressing this issue in the 

context of the most recent decision. Once again, it argues that this matter is demands a clear and consistent approach and that rulemaking is the way to achieve 

it. 

I must agree and would like to submit this paper for the record as well. 

Thank you, Mr. Chairman. I look forward to hearing from our witnesses, and hope 

very much they will support the completion of a sensible and comprehensive rulemaking effort. 

Senator CHAFEE. Thank you, Senator Murkowski. 

Senator Lautenberg. 
15 

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. 

SENATOR FROM THE STATE OF NEW JERSEY 

Senator LAUTENBERG. Thank you, Mr. Chairman. 

Mr. Chairman, I listened with interest and not a lot of surprise, 

but some disappointment when we hear that the value of properties looms as the largest consideration. I think there is something 

for the value of lives that has to be included in our review and our 

commentary. 

For more than three decades, the Clean Water Act has improved 

the lives of every American. It has protected our Nation’s rivers, 

lakes, wetlands, streams and other waters. But now in the wake 

of disturbing legal reasoning by Justice Scalia and three of his colleagues on the Supreme Court, the protections of the Clean Water 

Act are in serious danger. 

Since 1972, the Clean Water Act has prohibited the discharge of 

pollution from point sources into our Nation’s waters without a permit. But in the recent Rapanos decision, Justice Scalia, joined by 

Justices Thomas, Roberts and Alito, attempted to invent two new 

exceptions to the Clean Water Act that would endanger thousands 

of streams and wetlands. First, they asserted that only streams 

that run continuously, year-round, are protected under the Clean 

Water Act. Based upon EPA estimates, this would leave almost 60 

percent of our Nation’s streams with no protection under the Clean 

Water Act. 

Secondly, Justice Scalia’s opinion asserted that only those wetlands that have a continuous surface flow of water into the streams 

they adjoin are protected under the Act. This interpretation would 

similarly exclude tens of millions of acres of wetlands from Federal 

protection. If this interpretation of the Clean Water Act were actually to prevail, streams and wetlands across the country would suddenly lose their Federal protection. These waters could be left open 

to unpermitted dumping of industrial pollution, sewage waste and 

to dredging and filling. 

We hear about the fact that State supervision can take care of 

many of these things. But when they flow into streams, those 

streams cross touch many States on their way to their final destination. To ignore the fact that the contamination could be transmitted so quickly and so easily I think is dangerous. The results 

would be devastating: more pollution downstream, significant loss 

of wildlife habitat, increased flooding and great drought in the final 

analysis. 

This weakening of the Clean Water Act would affect the quality 

of the water we drink and the rivers, lakes and streams where our 

children fish and swim. The only good news about Justice Scalia’s 

opinion is that he was only able to get three of his colleagues to 

agree with it. Four Justices dissented, and Justice Kennedy took a 

middle-ground approach. But he sharply criticized Justice Scalia’s 

opinion, saying that it is ‘‘without support in the language and purposes of the Act’’ or in our case interpreting it. 

Now, I will be interested to hear from today’s witnesses how EPA 

and the Army Corps plan to continue protecting the Nation’s wetlands, streams and other waters in light of the recent Supreme 

Court decision. Even though a majority of Justices did not agree 

with Justice Scalia, the Rapanos case is an open invitation for pol-
16 

luting industries to keep using the courts to reduce the number of 

waters protected by the Clean Water Act. 

We have got to act, Congress has got to act to reaffirm the historic scope of the Clean Water Act. Senator Feingold’s Clean Water 

Authority Restoration Act, S. 912, of which I am an original cosponsor, would do just that. I hope we can have a hearing on the 

Feingold bill as soon as possible. 

Mr. Chairman, I look forward to hearing from today’s witnesses. 

[The prepared statement of Senator Lautenberg follows:] 

STATEMENT OF HON. SENATOR FRANK R. LAUTENBERG, U.S. SENATOR FROM THE

STATE OF NEW JERSEY

Mr. Chairman, for more than three decades, the Clean Water Act has improved 

the lives of every American. It has protected our Nation’s rivers, lakes, wetlands, 

streams and other waters. But now, in the wake of disturbing legal reasoning by 

Justice Scalia and three of his colleagues on the Supreme Court, the protections of 

the Clean Water Act are in danger. 

Since 1972 the Clean Water Act has prohibited the discharge of pollution from 

‘‘point sources’’ into our Nation’s waters without a permit. But in the recent 

Rapanos decision, Justice Scalia, joined by Justices Thomas, Roberts and Alito, attempted to invent two new exceptions to the Clean Water Act that would endanger 

thousands of streams and wetlands. 

First they asserted that only streams that run continuously year-round are protected under the Clean Water Act. Based upon EPA estimates, this would leave almost sixty percent of our Nation’s streams with no protections under the Clean 

Water Act. Second, Justice Scalia’s opinion asserted that only those wetlands that 

have a continuous surface flow of waters into the streams they join are protected 

under the Act. This interpretation would similarly exclude tens of millions of acres 

of wetlands from Federal protections. 

If this interpretation of the Clean Water Act were actually to prevail, streams and 

wetlands across the country would suddenly lose Federal protections. These waters 

could be left open to unpermitted dumping of industrial pollution, sewage, and 

waste, and to dredging and filling. The results would be devastating more pollution 

downstream, significant loss of wildlife habitat, increased flooding and greater 

drought. 

This weakening of the Clean Water Act would affect the quality of the water we 

drink, and the rivers, lakes and streams where our children fish and swim. The only 

good news about Justice Scalia’s opinion was that he was only able to get three of 

his colleagues to agree with it. Four justices dissented, and Justice Kennedy took 

a middle ground approach. But he sharply criticized Justice Scalia’s opinion saying 

that it is ‘‘without support in the language and purposes of the Act or in our cases 

interpreting it.’’ 

I will be interested to hear from today’s witnesses how EPA and the Army Corps 

plan to continue protecting the nation’s wetlands, streams and other waters in light 

of the recent Supreme Court decision. Even though a majority of Justices did not 

agree with Justice Scalia, the Rapanos case is an open invitation for polluting industries to keep using the courts to reduce the number of waters protected by the Clean 

Water Act. 

Congress should act to reaffirm the historic scope of the Clean Water Act. Senator 

Feingold’s Clean Water Authority Restoration Act (S. 912), of which I am an original 

co-sponsor, would do just that. I hope we can have a hearing on the Feingold bill 

as soon as possible. 

Mr. Chairman, I look forward to hearing from today’s witnesses. 

Senator CHAFEE. Thank you, Senator Lautenberg. 

I do have a statement by Senator Feingold which I would like to 

submit for the record. I do anticipate a hearing on any legislation 

that might be proposed at another date. 

[The prepared statement of Senator Feingold follows:] 
17 

STATEMENT OF HON. RUSS FEINGOLD, U.S. SENATOR FROM THE

STATE OF WISCONSIN

I appreciate the leadership of Senator Chafee and Senator Clinton in holding today’s subcommittee hearing on interpreting the effect of the U.S. Supreme Court’s 

recent decision in the joint cases of Rapanos v. United States and Carabell v. U.S. 

Army Corps of Engineers on the waters of the United States. I also appreciate the 

offer from Senator Chafee’s office to work to hold a subsequent hearing on legislative responses in the wake of the most recent Supreme Court decision. As the lead 

sponsor of S. 912, the Clean Water Authority Restoration Act, I look forward to testifying about the issues surrounding, and the need for, legislation that will ensure 

that the waters of our country are protected as originally intended by the Clean 

Water Act. I believe that this legislation is now needed more than ever and I appreciate the willingness of the subcommittee to press ahead on this most important 

issue. 

When the Clean Water Act was passed in 1972, its stated purpose was to ‘‘restore 

and maintain the chemical, physical and biological integrity of the Nation’s waters.’’ 

For most of the past 30 years, the Clean Water Act has been interpreted to provide 

protection for the myriad waters that enhance and contribute to human health and 

well-being, the economy, and the environment. Unfortunately, over the past few 

years, the fundamental purpose of the Clean Water Act has been questioned and 

jeopardized by Supreme Court decisions. 

In the 2001 case Solid Waste Agency of Northern Cook County v. Army Corps of 

Engineers (SWANCC), the U.S. Supreme Court limited the authority of Federal 

agencies to extend Clean Water Act protections to non-navigable, intrastate, ‘‘isolated’’ waters based solely on their use by migratory birds. Now, with the Rapanos/ 

Carabell decision, four Justices indicated that they believe that the Clean Water Act 

applies only to ‘‘permanent, standing or continuously flowing bodies of water.’’ Thus, 

the American public now knows that the Supreme Court is one vote away from a 

majority that would jeopardize roughly 60 percent of the Nation’s rivers and 

streams and all of the wetlands adjacent to them. And, to put these bodies of water 

into perspective, according to the Environmental Protection Agency 110 million 

Americans get their drinking water from sources that include the very intermittent 

and ephemeral bodies of water that the four justices said were not protected by the 

Clean Water Act. Fortunately, five Justices rejected this radical rewrite of the Act 

and that opinion does not have the force of law. Nonetheless, the waters protected 

by the Clean Water Act for the last three decades are still in jeopardy. 

While I hope today’s hearing delves in depth into the recent cases, it is clear to 

me that Congress must act and that time is most definitely of the essence. Every 

single day that goes by, streams and wetlands are lost. For example, following the 

SWANCC decision, the relevant agencies have been issuing approximately 400 no 

jurisdiction’ determinations a quarter 1,600 per year. While some of these may have 

merit, I worry that many of them do not and that they represent a loss for the water 

resources that all citizens of our country depend upon. I also am concerned about 

what will happen based on the most recent decision, and unfortunately, I need not 

look far for an indication of what will come. For example, a fifth circuit district court 

judge, in a case looking at an oil spill, essentially discarded Justice Kennedy’s opinion in Rapanos/Carabell, saying that, ‘‘This test [the significant nexus] test leaves 

no guidance on how to implement its vague, subjective centerpiece.’’ The fifth district judge went on, ‘‘Because Justice Kennedy failed to elaborate on the significant 

nexus’ required, this Court will look to the prior reasoning of this circuit.’’ The judge 

then relied heavily on Justice Scalia’s opinion in the Rapanos/Carabell decision to 

rule that the Federal Government had no ability under the Clean Water Act to take 

action against a major oil company for spilling oil into an intermittent stream. 

Enough is enough. Congress must provide the needed leadership to step in and 

clarify the intent of the Clean Water Act. Such action must ensure that all waters 

of the United States, waters that are valuable for drinking, fishing, swimming, and 

a host of other economically vital uses not just navigability are protected. I look forward to working with the members of the subcommittee to pass such vital legislation. 

Senator CHAFEE. And now we will proceed to our first panel. We 

have the Honorable Ben Grumbles, Assistant Administrator for the 

EPA Office of Water; the Honorable John Paul Woodley, Jr., Assistant Secretary for Civil Works for the U.S. Department of the Army; 

and Mr. John Cruden, Deputy Assistant Attorney General of the 
18 

Environment and Natural Resources Division of the U.S. Department of Justice. 

Welcome, and let’s start with Mr. Grumbles. 

STATEMENT OF THE HONORABLE BENJAMIN H. GRUMBLES, 

ASSISTANT ADMINISTRATOR FOR WATER, UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY; AND JOHN PAUL 

WOODLEY, JR., ASSISTANT SECRETARY OF THE ARMY FOR 

CIVIL WORKS, DEPARTMENT OF THE ARMY 

Mr. GRUMBLES. Thank you, Mr. Chairman. 

Mr. Chairman, this Administration is pro-wetlands. This Administration is pro-wetlands, because we recognize wetlands are at the 

core of this country’s rich cultural heritage and are central to its 

prosperity and future. The Administration is supportive of wetlands programs, restoring and protecting them, because we recognize their central importance. 

The President reaffirmed the no net loss goal and has also stated 

a bold new goal for this country of gaining wetlands, moving beyond just the no net loss goal. The no net loss goal of the Administration was reaffirmed in 2002, when it also established a multiagency, 17 step mitigation action plan to make progress on compensatory mitigation and restoring wetlands that were unavoidably 

lost due to development activities. 

Even more importantly, on Earth Day 2004, the President established this new goal of gaining wetlands, of increasing the quality 

and quantity of wetlands throughout the country and tasks the 

Federal agencies specifically with the goal of using the tools of cooperative conservation to restore, create, improve and protect 3 

million acres by 2009. 

Since Earth Day 2004, the Administration has been taking a variety of positive, pro-wetland steps to make progress on those ambitious goals. One of the things I would like to mention is that in the 

President’s budget request, fiscal year 2007 request, the Administration is requesting $403 million for the USDA’s Wetlands Reserve program. That is over $150 million above and beyond the previous request. It will lead to a total of 250,000 acres in the Wetlands Reserve program. 

There are other activities beyond the budget, but particularly in 

the 2007 budget, Assistant Secretary Woodley will describe the regulatory program for the Corps of Engineers, implementing Section 

404 and the importance of those resources in that program to help 

protect and restore wetlands. U.S. EPA has a variety of programs 

as well to advance the goals of the President on wetlands as well 

as the goal of the Clean Water Act, which Senator Clinton and others on the panel have stated. It is critically important, and that 

goal is to restore and maintain the chemical, physical and biological integrity of the Nation’s waters. Because we recognize that wetlands are a central part of that effort, we are using the tools we 

have under cooperative conservation, as well as under the Clean 

Water Act. 

EPA is working closely with the Army Corps of Engineers, because our two agencies share the Clean Water Act Section 404 program on several important initiatives and efforts. One of them I 

want to mention is the proposed wetlands mitigation rule, which 
19 

was proposed earlier this year. This is a science-based, results-oriented rule that will help us use market-based approaches to continue to make progress toward the goal of no net loss of wetlands 

throughout the country. 

We are also working closely in multiple Agency efforts to heed 

the advice of the National Academy of Sciences. When they issued 

a report several years ago, they said more work needs to be done 

on the science of wetlands restoration and protection, to ensure 

that we do continue to make progress towards that no net loss goal. 

We are fulfilling that objective, working on that as well as with the 

mitigation rule. 

These are all important activities, they are important steps recognizing cooperative conservation plus the regulatory tools and 

non-regulatory tools under the Clean Water Act are all important 

to help us meet the President’s objectives and goals for wetlands 

protection. 

The purpose of this hearing, this extremely important hearing, is 

to focus on the decision, the Rapanos/Carabell decision. Immediately after the decision, the EPA and the Army Corps sent field 

guidance to our staffs, telling them, continue to carry out your programs, carry out authorities and programs under the Clean Water 

Act. Defer for a while on making any new interpretations of this 

new decision, and on changing jurisdictional delineation procedures, so that we could work on interim guidance. We are now 

working on interim guidance, developing it. We hope to get it 

issued as soon as possible. It will be an important tool to help us 

to continue to use the Clean Water Act as a valuable tool. The 

focus of that guidance will be to add clarity and consistency so that 

we can continue to use tools available under the Clean Water Act. 

In closing, Mr. Chairman, I would just like to say that all wetlands have value. The question is what tools, what authorities, 

what programs and at what level of Government are available to 

help continue to advance in an effective, efficient and equitable 

manner these wetlands protection and restoration goals. It will 

take all of us working together, all of us working together, to 

achieve that. We look forward to working with you. 

At this point, I would like to turn it over to Assistant Secretary 

Woodley. Mr. Chairman, thank you. 

Senator CHAFEE. Thank you, Mr. Grumbles. Mr. Woodley, welcome. 

Mr. Woodley. Thank you, Senator. It is wonderful to see you 

again, and also the members of the committee and subcommittee. 

I certainly associate myself with my very distinguished colleague’s remarks. Congress enacted the Clean Water Act, as has 

been indicated, to restore and maintain the physical, chemical and 

biological integrity of the Nation’s waters, including wetlands, 

through programs such as Section 404, administered by my Agency. That section regulates discharges of dredged or fill material, 

helping to protect wetlands and aquatic environments, of which 

they are an integral part, and maintain the environmental and economic benefits provided by these valuable natural resources. 

The Bush administration has shown its support for the continuing protection of wetlands by proposing to increase funding for 

the Corps of Engineers’ regulatory budget from $138 million in fis-
20 

cal year 2003 to $173 million proposed in fiscal year 2007, which 

amounts to about a 25 percent increase. I encourage members, particularly those of you who may know appropriators, to examine 

that request that we have pending in fiscal year 2007. The corps 

is responsible for the day to day administration, including reviewing permit applications and deciding whether to issue or deny permits. In that context, we make more than 100,000 jurisdictional determinations and provide over 80,000 written authorizations in a 

given year. The data do indicate that we are achieving our goal of 

a no net loss of wetlands in the 404 regulatory program. 

Mr. Grumbles has described some of the actions we have taken 

to improve the program in recent years, in conjunction with our 

colleagues at EPA. But certainly should not be neglected the efforts 

that the corps has underway pursuant to its aquatic ecosystem restoration mission, which includes many projects that have restored 

and are restoring hundreds of acres of wetlands and streams every 

year. Indeed, Mr. Chairman, I hope to see you in Rhode Island 

later this year at the Lonsdale Marsh project, which is restoring 

some very valuable wetlands in the State of Rhode Island. These 

actions, as well as others, will enable us to better protect and improve these resources and tell us where and how to restore, enhance and protect these important resources. 

We are now working together with our colleagues at the EPA to 

understand and implement the June 2006 Supreme Court decision 

that has been described here today. The judgment of the Court was 

to vacate and remand these two cases for further proceedings. 

Those proceedings will be undertaken. In addition, the Court introduced different tests for evaluating and determining jurisdiction for 

tributaries to traditional navigable waters and their adjacent wetlands. These tests will have important implications for the administration of the Clean Water Act. 

As my colleague indicated, we have issued interim guidance that 

seeks to advise our subordinates in the field of their responsibilities 

under this ruling. Since that has been issued, we have been working very closely with our colleagues at the Department of Justice 

to interpret the decision, to arrive at an understanding of its legal 

implications and its impacts on the scope of the definition of waters 

of the United States protected under the Clean Water Act. We are 

now working on joint EPA/Corps of Engineers interim guidance to 

clarify our jurisdiction in light of these decisions, with the focus, of 

course, on the critical issue of defining the term ‘‘significant nexus’’ 

as used by Justice Kennedy in applying that rule to the field. We 

certainly hope that this guidance will move us beyond our disagreements over how widely we assert jurisdiction and having an approach that is not about a larger or smaller jurisdiction, but about 

better results using the tools that we have to provide clarity for the 

public and ensure consistency and predictability in our jurisdictional determinations nationwide. 

Thank you very much for the opportunity to address you today. 

Senator CHAFEE. Thank you very much, Mr. Woodley. Mr. 

Cruden, welcome. 
21 

STATEMENT OF JOHN C. CRUDEN, DEPUTY ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES 

DIVISION, UNITED STATES DEPARTMENT OF JUSTICE 

Mr. CRUDEN. Chairman Chafee and other members of the Committee and Subcommittee, thank you for inviting me here to talk 

about an extremely important case right now. I am a Deputy in the 

Environment and Natural Resources Division, and as most of you 

know, that is one of the litigating divisions of the Department of 

Justice. We have responsibility for over 70 statutes in the environment and natural resources arena, and we appear in court representing virtually every Federal agency. 

One of the statutes that we have responsibility for is the subject 

of this hearing today, which is the Clean Water Act. And one part 

of that statute is what we are narrowly addressing today, and that 

is what I refer to as the 404 program, which is our wetlands protection area. 

As has already been said, Federal wetlands took on significance 

with the Clean Water Act amendments of 1972 and 1977, and the 

corps and EPA implemented those in regulations in 1974, 1977 and 

1986. There have been numerous decisions involving certainly the 

Clean Water Act, and more specifically wetlands law. But clearly 

the most important are the three most recent ones by the Supreme 

Court, which Senator Chafee has already mentioned: the unanimous Riverside Bayview decision in 1985; the divided SWANCC decision in 2001; and now the splintered Rapanos decision that was 

just decided. 

When we are appearing in court, we go back to the statute to try 

to tell the court the significance of that statute. And we very often 

start with the goal of the Clean Water Act, which has already been 

stated as restoring and maintaining the chemical, physical and biological integrity of the Nation’s waters. Specifically in wetland 

areas, the statute prohibits the discharge of a pollutant by any person without a permit. Discharge of a pollutant is further defined 

as the addition of a pollutant to navigable waters. And then navigable waters is defined as ‘‘waters of the United States.’’ So that 

is how we get to ‘‘waters of the United States,’’ through a series 

of definitions. 

The corps and EPA have promulgated regulations and they have 

substantially the same definition of ‘‘waters of the United States,’’ 

and that is what we have been applying in court. In Riverside 

Bayview, the Supreme Court held that the corps had acted reasonably in interpreting the Act to require permits for discharges of fill 

material into wetlands adjacent to waters of the United States. In 

SWANCC, however, the Supreme Court held that isolated, nonnavigable intrastate waters did not become waters of the United 

States based on migratory bird usage. 

Now let’s turn to Rapanos. Rapanos is actually two cases. The 

Supreme Court was once again reviewing the phrase, ‘‘waters of 

the United States.’’ In the first case, Rapanos, that was a developer 

who without a permit filled about 54 acres of wetlands that were 

adjacent to tributaries of navigable-in-fact water bodies. 

But there was another case. The second case, Carabell, involved 

a permit applicant who was denied authorization to fill wetlands 

that were physically proximate to, but they were divided by about 
22 

a four-foot berm from, a navigable-in-fact water body, Lake St. 

Clair. 

The judgment of the Supreme Court was to vacate the decisions 

of the Sixth Circuit and remand both cases for further proceedings. 

There is no majority opinion. Instead, we have a plurality opinion 

of four Justices, a concurring opinion by Justice Kennedy and a dissent by four Justices. Chief Justice Roberts also wrote a separate 

concurring opinion to the plurality. Justice Breyer wrote a separate 

concurring opinion to the dissent. 

The plurality opinion authored by Justice Scalia concluded that 

the lower court should determine whether the ditches or drains 

near each wetland are waters in the ordinary sense, containing a 

relatively permanent flow, and if they are, whether the wetlands 

in question are adjacent to those waters in the sense of having a 

continuous surface connection. 

Justice Kennedy concurred in the judgment of the Court, but he 

has a separate and different test, concluding that the cases should 

be vacated and the test should be whether the specific wetlands at 

issue possess a significant nexus with navigable waters. 

It is a challenge to discern clarity in this particular case. I think 

Chief Justice Roberts in his concurring opinion said it best: ‘‘It is 

unfortunate that no opinion commands a majority of the Court on 

precisely how to read Congress’s limits on the reach of the Clean 

Water Act. Lower courts and regulated entities will now have to 

feel their way on a case-by-case basis.’’ Senators, that is what we 

have been doing since the time of this opinion. It would not surprise you to know that in many cases we sought more time from 

courts, so that we could coordinate with a lot of other people and 

work with the Environmental Protection Agency and the Corps of 

Engineers. 

In some cases we have had to take positions. We have already 

settled two cases. We have already filed a new case. And today, we 

are advising the Sixth Circuit in Rapanos and Carabell what we 

think the next step should be. We advised in both cases that we 

think that the test should be when you are applying the Rapanos 

and Carabell decision, that in order to determine ‘‘waters of the 

United States,’’ we ought to be able to meet either test, either the 

test of the plurality or the concurring test by Justice Kennedy. 

I look forward to your questions about in this very important decision, and I am pleased you are having this hearing. Thank you. 

Senator CHAFEE. Thank you very much, panelists, for your testimony. We will have a 5 minute round of questioning. Seeing how 

you ended up, Mr. Cruden, on some of the questions I wanted to 

ask, maybe I could just get some details. You are saying that you 

will apply both the plurality test, either the plurality test or the 

Kennedy test? 

Mr. CRUDEN. That is correct. 

Senator CHAFEE. But not both? Maybe you could give me a further description of how that will work. 

Mr. CRUDEN. We believe that the rule of law that comes out of 

this will in fact allow us to apply either test in a particular factual 

situation. I say that for three reasons. First of all, I believe that 

Chief Justice Roberts, in his concurring opinion, pretty much 

pushed us in that direction when he said lower courts and regu-
23 

lated entities will now have to feel their way on a case-by-case 

basis. He went on to say, this situation is certainly not unprecedented. And he cites two decisions, a Marks decision, which was an 

old obscenity decision, and a decision of Grutter v. Bollinger, which 

is an affirmative action case. 

In both of those decisions, they were also fragmented decisions. 

In the one case, the obscenity case, the Court applied the plurality 

opinion. In the other case, the affirmative action case, which goes 

back to the well-known Bakke decision, they applied the single 

opinion by Justice Powell. So I think that Justice Roberts pushes 

us in the direction of applying either one of the two tests. 

In the dissent, Justice Stevens says that ‘‘I actually think the 

more appropriate test in the future would be either test as well.’’ 

So we have that out of the opinion. And then frankly, I think there 

is just an element of common sense. If in fact we meet Justice 

Scalia’s test, that probably means eight Justices would agree. If we 

meet Justice Kennedy’s test, we probably would satisfy five Justices. Therefore I think going forward we will have to see what 

courts say in reaction to our proposal. But I do believe that we will 

have, we should have the ability to meet either one of the tests in 

order to establish waters of the United States. 

Senator CHAFEE. Thank you very much. I don’t want to put you 

on the spot, but you mentioned some decisions that the Justice Department has pursued since the Supreme Court decision. Can you 

tell us in any detail about those? You have settled some, you said, 

and brought new action on others. Can you give us any details on 

what has happened in your department since the Supreme Court 

decision? 

Mr. CRUDEN. In two cases that we settled, one in Michigan and 

one in Georgia, frankly we had been negotiating those before the 

Rapanos decision came out. Both of them involved wetlands. And 

after the decision came out, we went back to the parties and said, 

would you still like to continue negotiating? They did, and we were 

able to finish then. So notwithstanding the decision, there are parties who still wanted to settle. 

Recently, last week, we filed a case in Virginia. The case involved 

a housing project for senior citizens and individuals who, without 

a permit, essentially filled in what we think are the headwaters of 

a stream. We believe that act would probably meet either of the 

tests. So we have filed that as a new complaint. 

Third, we were recently challenged in a criminal case. An individual was indicted in Florida because in a labor camp, he bypassed the septic tank that was holding human excrement and let 

it run directly into a river. He attempted to use Rapanos to say 

that ‘‘I should not be charged with this crime, because that was not 

a continuous flowing river.’’ We disagreed with him, and we do not 

believe Rapanos stands for that position. 

[Laughter.] 

Senator CHAFEE. Thank you, Mr. Cruden. 

Mr. Woodley, under the Kennedy significant nexus test, requiring 

agencies to determine on a case by case basis what constitutes a 

significant nexus between a wetland and navigable in fact waterway, who has the burden of illustrating the nexus? Will it be the 

property owners applying for permits or the agencies themselves? 
24 

Mr. Woodley. Senator, I believe it is the responsibility of the 

agency to advise property owners as to our views on jurisdictional 

determinations. And we do that under the current law. We will 

provide a landowner with a jurisdictional determination upon request. 

Senator CHAFEE. Very good. The five minute round moves quickly, so I will turn to Senator Clinton. 

Senator CLINTON.Thank you, Mr. Chairman. 

Mr. Cruden, I believe that the first district court to apply 

Rapanos is U.S. v. Chevron Pipeline Company. That is an oil spill 

case in Texas that seemed to dismiss Justice Kennedy’s significant 

nexus test and focused instead on Justice Scalia’s plurality opinion. 

In this case, the Court ruled that EPA lacks authority under the 

Clean Water Act to enforce the law against an oil company that 

spilled 126,000 gallons of oil into a tributary stream that was dry 

part of the year, wet part of the year and several miles from the 

nearest navigable water. 

What is your opinion of this case, and what implications does it 

have for other Clean Water Act programs? 

Mr. CRUDEN. Senator, you are correct that that is a decision that 

has come out. I think it is the only one. And we are still in the 

appeal period. I want to say at the outset that the time has not 

run for us to make an appeal decision on that case. So I don’t want 

anything I say to indicate what we are going to do yet, because we 

simply have not made up our mind. 

But this is a case, as you indicate, brought under the Oil Pollution Act, which still has the magical phrase ‘‘waters of the United 

States’’ but is a little bit different law. That statute also covers discharges to adjoining shorelines, which if you think about it makes 

sense, because if you have a discharge in a pipeline spill case, it 

very often goes down the shoreline into the water of the United 

States. 

We allege that the rough equivalent of four or five swimming 

pools worth of oil was discharged in an oil break and went into a 

tributary. And I have seen pictures of that tributary flowing with 

water, but not all of the year. Not all of the year, and perhaps not 

at the time that the discharge occurred. 

So based on that, we brought the case. But we asked the court— 

because we brought it before Rapanos—we asked the court, don’t 

do anything, stay it until Rapanos is decided. But the court did not 

agree with us. So the court went forward anyway and both parties 

filed pleadings. Almost immediately after the Rapanos decision, before we filed anything with the court about what Rapanos meant, 

the judge gave the decision that you were just talking about. 

Although the court mentions both the Kennedy test and what I 

call the plurality test, it seems that the court was more focusing 

on the plurality. 

Senator CLINTON. Mr. Cruden, I am going to have to interrupt 

you. I am sorry, because our time is so short. If you characterize 

the Kennedy test as significant nexus, what is the characterization 

of the Scalia test? The human excrement test? I mean, what is it? 

Mr. CRUDEN. No, the Scalia test is in fact tied to—it, he has a 

long explanation of the statutory phrase and places great emphasis 

on the fact of ‘‘waters,’’ in ‘‘waters of the United States.’’ So for the 
25 

plurality test, in order for there to be a water of the United States, 

he has defined that as relatively permanent flow. That is what—— 

Senator CLINTON. But again, but then we come to the problem 

in the Chevron case, where in many parts of the country, we heard 

from Chairman Inhofe, sometimes it is dry and sometimes it is wet. 

And when it is wet, it flows. And it flows somewhere, or it goes into 

the ground and maybe into an aquifer. So the water is present at 

certain times of the year. 

So, you know, I find it very difficult because of the complexity 

and the confusion in the plurality opinion, as to exactly what it 

means. And let me just drive forward a little bit further here. As 

you noted in your brief before the Supreme Court, effective regulation of the traditional navigable waters would hardly be possible if 

pollution of tributaries fell outside the jurisdiction of those responsible for maintaining water quality downstream. And I agree with 

this, I think it is a common sense principle. 

Now, do you anticipate then that there will be increasing numbers of challenges based on this confusing plurality opinion from 

people who disregard the principle that waters are in many instances are interconnected? 

Mr. CRUDEN. Of all the things that I am confident about this 

opinion, it is that we are going to litigate it and its application a 

lot. But I will say with regard to your point—about the fact that 

pollution actually does go downstream in those classic pollution 

cases. By the way, human excrement is in fact a pollutant. In responding to that case, we referred to Justice Scalia. Because Justice Scalia, in the case of what we would call classic polluters, said 

no court has held that that a pollutant has to go directly into the 

waters of the United States. It can actually wash downstream—— 

Senator CLINTON. Well, exactly. 

Mr. CRUDEN [continuing]. in those instances, which I think is 

common sense—— 

Senator CLINTON. But the court in Chevron concluded that 

dumping 126,000 gallons of oil that could get into the tributaries 

was not. So I think that is what argues so strongly for us trying 

to sort this out. So thank you. 

Senator CHAFEE. Thank you, Senator Clinton. 

Senator INHOFE. Mr. Cruden, let me just ask you first of all, 

there is always an assumption that if you are in the Senate you 

are a lawyer. That isn’t always the case. There are several of us 

up here who are not. 

So I would like to have you explain a couple of things to the nonlawyers. In Rapanos/Carabell, five Justices voted to vacate the 

Sixth Circuit decisions. The last time I read the Constitution, there 

were nine Justices. So I think that is a majority. And in your statement, you said ‘‘Based on all these decisions, the Department of 

Justice has advised courts that it believes the applicable standard 

to determine if a wetland is governed by the Clean Water Act is 

whether either the Rapanos plurality is or Justice Kennedy’s test 

is met in a particular fact situation.’’ 

I would just like to have you explain, because there are a lot of 

them who are still saying that the Court’s minority would set national policy. And I would like to have you explain to us that any-
26 

one could possibly argue that the opinion of a minority of the Supreme Court would rule. 

Mr. CRUDEN. In this case, of course, we don’t have an overall majority opinion. And the plurality decision consciously disagrees with 

the concurring decision by Justice Kennedy and vice versa. They 

are two different tests. They are apples and oranges in approach. 

This is not the first time in our history that we have had to interpret when the Supreme Court simply does not have a majority 

opinion. So when Chief Justice Roberts referred us to the Marks 

decision, we know that as an old obscenity law case. In the obscenity law case somebody got convicted of obscenity. And the question 

on appeal was, what law applied. And it was another case like this 

one, where there were just a lot of different views. 

And what the Supreme Court said in Marks is, well, the narrowest position or maybe the one that has the greatest commonality is the one that would control. So I think Justice Roberts 

was doing his best to point us in a direction to help us decide what 

the standard would be. 

Senator INHOFE. Okay, that is fine. But five is still majority. 

Mr. CRUDEN. Five is still a majority. 

Senator INHOFE. Mr. Grumbles, first of all, let me thank you for 

coming out and talking about the commitment that this Administration and this President has to wetlands. I appreciate it, and we 

know his initiatives are very far reaching. But there are a lot of 

people who are going to be criticizing him no matter what he does. 

It is kind of like his Clear Skies initiative, which is the most farreaching reduction, mandated reduction in pollutants SOX, NOX

and mercury, of any program, of any President, of any administration in history. And yet people are still criticizing him. 

I have some pictures up here, Mr. Grumbles, and first of all, as 

my colleagues would know, Mr. Grumbles and I worked together in 

the House committee many, many years ago. These are a few pictures of areas designated as waters of the United States. However, 

you will note that there is not any water in the pictures. Doesn’t 

water of the United States need water, would be my first question. 

And where in the Congressional history of the statutes does it say 

Congress intended to regulate land through the Clean Water Act? 

Mr. GRUMBLES. Mr. Chairman, thank you for that question. Because it is an important opportunity for us to explain that waters 

of the United States, the term that is used throughout the statute, 

where it is in the definitions, is not simply traditional navigable 

waters. It can be adjacent waters and it can get into the tributary 

system. 

A key question is, Justice Scalia in the plurality opinion acknowledges that you don’t always need the hydrology to be there every 

point in time, that there can be seasonal rivers. And of course, an 

important part of the discussion of the whole case is in the committee opinion and also in the dissenting opinion about the importance of flow and duration and volume. 

So the point is that over the years, as the agencies have interpreted the statute and implemented the regulations, we have recognized that it is not just the hydrology, it is hydrophytic vegetation, 

etc., it is soil, you look at a variety of factors. 
27 

Senator INHOFE. Let me ask you, because time is going fast here, 

it was confusing to me when you used the term significant nexus. 

I would like to have each one of you define nexus for me. 

Let’s start with you, Mr. Cruden. Your definition. 

Mr. CRUDEN. Well, Justice Kennedy says in order for the water 

to be a water of the United States, there must be a significant 

nexus between that tributary or that wetland and a navigable 

water. 

Senator INHOFE. Secretary Woodley. 

Mr. Woodley. I think that the court is trying to describe, or the 

Justice is trying to describe some kind of hydrological connection. 

Senator INHOFE. A connection or a relationship? 

Mr. Woodley. Yes, sir. 

Senator INHOFE. You think? 

Mr. Woodley. That’s what I think. 

Senator INHOFE. What do you think, Mr. Grumbles? 

Mr. GRUMBLES. I don’t think that you have an agreement among 

the Justices in the Court. But the key, Justice Kennedy—— 

Senator INHOFE. No, I am just talking about defining nexus. 

Mr. GRUMBLES. He basically says that the nexus is when you 

have wetlands either alone or in combination with similarly situated lands in the region, that significantly affect the chemical, 

physical and biological integrity of what are commonly known as 

traditional navigable waters. Senator Inhofe. Wouldn’t it be a good 

idea at some point to have a definition drawn out so you don’t have 

to think and we can know? Thank you, Mr. Chairman. 

Senator CHAFEE. Thank you, Senator Inhofe. 

Senator Jeffords. 

Senator JEFFORDS. Mr. Grumbles, in 2003, I exchanged correspondence with the Agency regarding the jurisdictional status of 

Lake Champlain. I ask unanimous consent that copies of these letters be included in the record. 

Senator CHAFEE. Without objection, so ordered. 

[The referenced letters can be found on page 48.] 

Senator JEFFORDS. At the time, EPA stated ‘‘Lake Champlain 

and its tributaries are currently jurisdictional under the Clean 

Water Act.’’ Has the situation changed with Lake Champlain as a 

result of the Supreme Court decision? 

Mr. GRUMBLES. Senator, I don’t know. I think we need to look 

at the specific facts of the situation on Lake Champlain. I can’t 

give you a definitive answer on that. I would like to, because I 

want to be accurate, get back to you on that specifically. One of the 

issues for us as we work together to issue joint interim guidance 

to the field as soon as we can is to interpret the decision, Rapanos/ 

Carabell decision, as it relates to tributaries and adjacency. So I 

would like to be able to get back to you on that specific Lake 

Champlain question. 

Senator JEFFORDS. How will the Army Corps, Mr. Woodley, document on the ground decisions regarding the Clean Water Act jurisdiction in the wake of this decision, and make that information 

available to Congress and the public? 

Mr. Woodley. Senator, we have substantially increased and improved our documentation and our efforts to make things available 

in response to our work that we have been trying to do to under-
28 

stand the implications of the SWANCC decision. So my current impression is that those procedures are pretty robust and afford a 

substantial opportunity for the public to examine our decision-making in a transparent way. I am delighted to revisit it if I should 

hear that in fact that is not taking place in the field. 

Senator JEFFORDS. Thank you. 

Mr. Grumbles, I have a three part question for you. Are wetlands 

important to water quality and flood control? Do pollutants flow 

downstream from small tributaries to larger bodies of water? And 

when it rains in a normally dry area, as it did in Phoenix, Arizona 

last week, are the contents of dry stream beds carried downstream 

with the water? 

Mr. GRUMBLES. Senator, I think a clear answer to the first question is yes, and a clear answer to the second question is yes. On 

the third question, I think it really does depend on the specific, the 

hydrologic, the conditions of a particular tributary or water body. 

I can also tell you, one of the areas that we are working together 

and interpreting and reviewing the decision is how it relates to 

desert washes and dry arroyos and other water bodies or tributaries that may not be season rivers, but may also significantly affect chemical, physical and biological integrity of downstream navigable waters. 

Senator JEFFORDS. Mr. Cruden, does the Justice Department anticipate that the Rapanos decision will lead to increased challenges 

to the Administration’s authority to protect tributaries and adjacent wetlands? And do you anticipate that any changes will be limited within the wetlands program? 

Mr. CRUDEN. Senator, any time we have a case of this nature, 

almost always we can anticipate increased litigation that comes out 

of it. I once figured out the number of reported cases we had between the SWANCC decision in 2001 and now. I think we had 

about 17 or 18 court of appeals decisions and about the same number of district court decisions. And that was SWANCC—a more 

narrow case. 

So Senator, I am confident that we will litigate this for the foreseeable future. 

Senator JEFFORDS. I expect you will. 

Mr. Grumbles, the Clean Water Authority Restoration Act would 

take the EPA’s and the Corps’ definition of waters and add it to 

the statute. Wouldn’t this bill have essentially the same effects as 

the position taken by the Administration and court? 

Mr. GRUMBLES. Senator, I appreciate the question and feel confident in saying that on an issue of this importance, and when 

there is legislation or a legislative proposal that the best way to get 

an Administration position is to seek one. I don’t believe we have 

an Administration position, I don’t believe we have been asked to 

take a position on the legislation. 

But I can also say, I know all of us, appreciate the opportunity 

to begin this dialogue, to work with Congress, Senators, members 

in the House on authority questions, budgetary questions about the 

ambitious wetlands goals of the Administration, and also to try to 

provide technical assistance if you have questions about legislative 

as opposed to regulatory as opposed to budgetary responses to the 

decision. 
29 

Senator JEFFORDS. Thank you very much. 

Senator CHAFEE. Senator Murkowski. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Mr. Grumbles and Mr. Woodley, both of you have referred to 

working on an interim guidance to add some clarity on this issue. 

You have used the term guidance, joint interim guidance, interim 

guidance. This suggests to me that perhaps we are not moving forward on proposed rulemaking. I am not entirely certain what it is 

that we mean when we say this interim guidance. Can you clarify 

for me? 

Mr. GRUMBLES. I can start and say that we simply have not 

made a decision as to whether or not to do a rulemaking. A priority 

for us has been to issue guidance to the field as soon as we can. 

So where we are in the process right now is putting our maximum 

effort at working, coordinating with the Department of Justice on 

interpreting and providing useful guidance that will advance and 

help improve the clarity and consistency of the jurisdictional decisions and determinations. 

Senator MURKOWSKI. But if that is what you are trying to do, 

why don’t you give that clarity through the rulemaking? 

Mr. GRUMBLES. We will certainly, and I can assure you we are 

going to give it every consideration and look at whether or not rulemaking is the best approach. For me, one of the first decisions and 

factors to ask in choosing whether to not a rulemaking or legislative or some other process is appropriate is: is this approach going 

to advance the ambitious wetlands goals of the President. 

We are focused on the results, and focusing on the results, we 

then want to ask about timing and complexities of a rulemaking. 

And all of those factors we are going to be taking into account. But 

we just simply have not made the decision yet about a rulemaking. 

We hear and we understand that many interests and several Justices have signaled that that might be the right way to go. 

Senator MURKOWSKI. Let me ask you, Mr. Cruden, because you 

have indicated that if there is one thing that is certain, it is litigation. Wouldn’t it help you, rather than having some interim guidance and some suggestions coming out of the field, to have something more concrete through a rulemaking process? 

Mr. CRUDEN. Certainly changes in legislation or changes in regulation, all of those, can provide more certainty. I do not want to 

minimize the importance of Agency guidance, largely because you 

can do it faster and it can actually help people provide some understanding right away. As we have seen right now in this hearing, 

there are a lot of different views about what this opinion means 

and its application. 

So to the extent that a guidance can come out and deal with 

some of those areas, it just comes out a lot faster, and I think it 

is helpful to the public to have that. 

Senator MURKOWSKI. I mentioned in my opening statement, that 

many wetlands in Alaska are just different. We have more of them, 

and they have different hydrological functions. Would you not 

agree that when we are dealing with frozen wetlands most of the 

year, when you are dealing with an underlying permafrost area, 

that it may be a different animal than what we see down here? Am 

I correct in that? I throw that out to any of you. 
30 

Mr. Woodley. Yes, Senator. You are correct. 

Mr. GRUMBLES. You are. 

Senator MURKOWSKI. Then given that, and recognizing that the 

application, the Federal application of the Clean Water Act, is intended to control that pollution, the contribution of pollution to 

navigable waters, why should activities in a permafrost wetland, 

where you really can’t have that kind of a contribution, why should 

it be then under the same Federal control? I am trying to understand. I know it is different up there. We have kind of a cookie cutter application, which is what we deal with when we deal with Federal laws. 

So how can we best move forward in a State like Alaska, where 

we are trying to do the right thing with our wetlands, with a one 

size fits all approach? Mr. Woodley? 

Mr. Woodley. Senator, a large part of the difficulty with the administration of this program is the fact that we are essentially 

seeking to apply universal principles to an infinitely varied landscape. All land is unique. So we are grappling with the issue that 

you raise for Alaska in every part of the country, and we have improvements that we are seeking to make. I hope that you are 

aware of them. I would like the opportunity to discuss them with 

you in greater detail when I have more time. We are seeking ways 

to apply these universal principles to the unique situation that you 

do find in Alaska. 

I have, by the way, been to the permafrost. I don’t know if you 

have visited our permafrost tunnel. 

Senator MURKOWSKI. Yes. 

Mr. Woodley. It is a unique engineering research facility that we 

manage outside of Fairbanks. I am not in doubt about the matters 

that you raise, or the special situation that Alaska presents in our 

arena of wetlands regulation. 

Senator MURKOWSKI. I will look forward to talking with you 

when both of us have a little more time. Thank you, Mr. Chairman. 

Senator CHAFEE. Thank you, Senator Murkowski. I would like to 

thank the panel also for their testimony and answers to the questions—I am sorry. You came in behind me, Senator Lautenberg. 

You were gone for a while and you came back. My apologies. Senator Lautenberg. 

Senator LAUTENBERG. Thanks, Mr. Chairman. I know that you 

never intend to be unfair, and I respect and appreciate it greatly. 

Mr. Grumbles, how does EPA track the volume of wetlands in existence at all? Is that a process? 

Mr. GRUMBLES. Senator, we work with our Federal partners, 

U.S. Fish and Wildlife Service specifically, carries out with other 

Federal agencies support the National Wetlands Inventory. We also 

work closely with the Army Corps of Engineers as they carry out 

their regulatory program on tracking wetlands loss, permitting. 

Senator LAUTENBERG. That being the case, do you have anything 

quickly at hand that tells us where the volume or the area to that 

wetlands covered, before let’s say, going back 5, 6 years? Some indication of whether or not there was a net loss or net growth in wetlands? Mr. Grumbles. I think maybe one of the most useful, not the 

only but one of the most useful documents is the National Wet-
31 

lands Inventory that was recently issued by the Fish and Wildlife 

Service, tracking wetlands losses. 

Senator LAUTENBERG. Do you recollect whether or not there was 

a reduction in the last 6, 8, 10 years? 

Mr. GRUMBLES. I do, and we feel it is very important, there is 

a positive trend in reducing the loss of wetlands. When you look 

at 460,000 acres a year being lost back in the 1950s and 1960s to 

in the 1990s then much less—— 

Senator LAUTENBERG. Due to the Clean Water Act? 

Mr. GRUMBLES. Yes. And the most recent Fish and Wildlife Service National Wetlands Inventory has indicated that there is a net 

increase in wetlands with an important asterisk, and that is that 

some of those wetlands, using the Coarden methodology, include 

wetlands that may not have as much ecological value as other wetlands. That is an important asterisk that the Administration provided when we released that report. 

Senator LAUTENBERG. Would that period of time include a broader interpretation of CWA or do you think that what we see in the 

plurality—Mr. Cruden, I am still trying to figure out how four out 

of eight votes gets to be a plurality. But the fact is that with this 

so-called plurality opinion, is that a, wouldn’t that be a narrowing 

of the area covered, protected under the wetlands statutes? 

Mr. GRUMBLES. I think the methodology that has been used for 

that National Wetlands Inventory over the last several decades, it 

doesn’t align exactly with the Clean Water Act definition. It certainly doesn’t take into account Supreme Court decisions over the 

last few years. It can be a much broader category of wetlands than 

the legal defined term in the Clean Water Act, the defined term of 

navigable waters. 

Senator LAUTENBERG. Because if we narrow it to the navigable 

or nexus thereunto, I think there would be, how much of a percentage of streams and wetlands do you think might change positively 

or negatively if left without Clean Water Act protection? 

Mr. GRUMBLES. Senator, I appreciate the question. I would say 

it is extremely hard to quantify. We have the National Hydrography Data Base that is an approach to try to measure the number 

of perennial and non-perennial streams. It is very hard, it is somewhat like apples and oranges. 

Senator LAUTENBERG. Forgive me, Mr. Grumbles. 

Mr. Chairman, what I would say is, this is a fairly available bit 

of data. Can I ask if you would get back to me with some of these 

comparisons? 

Mr. GRUMBLES. I would be happy to do that, Senator. 

Senator LAUTENBERG. Do you think before the clock goes out on 

me, what would be the implications for the protection of drinking 

water if we narrow the definition of what the Clean Water Act 

ought to administer? 

Mr. GRUMBLES. We view the available tools under the Clean 

Water Act are critically important for source water protection, 

thinking upstream, acting upstream to protect those who live 

downstream and drink from the water. So one of the reasons why 

the wetlands program is a central part of our cooperative conservation efforts and efforts under the Clean Water Act is because pro-
32 

tecting the watershed upstream also can protect source waters that 

are used for drinking water downstream. 

Senator LAUTENBERG. If you are talking about small, some of the 

tributaries, the small streams that run into navigable waters, we 

have all seen unfortunately in the changes in the environmental 

condition that flooding is not unusual, torrential rains and then a 

drought. But during that torrential rain period, I mean, these wetlands become, these little streams become an important part of the 

flow. I think that before we remove that protection from some of 

those streams that we have to look at it very carefully. I hope that 

regulatorily or legislatively, Mr. Chairman, that we are going to be 

on the lookout for that. 

I thank you all for your testimony. 

Senator CHAFEE. Thank you once again, panelists, for your answers to the questions and your testimony. We will try and have 

our laws adhere to the Constitution. And any further questions will 

be submitted for the record. Hopefully the panelists will respond. 

We will now proceed to our second panel. We have Dr. Jonathan 

Adler, Associate Professor of Law with the Case Western Reserve 

University School of Law; Dr. William Buzbee, Professor of Law 

and Director of the Environmental and Natural Resources Law 

Program with Emory Law School; Mr. Chuck Clayton, Immediate 

Past President with the Izaac Walton League of America; and Mr. 

Keith Kisling, with the National Wheat Growers and National 

Cattlemen’s Beef Association. 

I would like to welcome you all here today. As mentioned for the 

previous panel, I hope that your entire statement can be submitted 

for the record and your testimony can be limited to 5 minutes. 

Dr. Adler, whenever you are ready. 

STATEMENT OF JONATHAN H. ADLER, PROFESSOR OF LAW, 

CO-DIRECTOR, CENTER FOR BUSINESS LAW AND REGULATION, CASE WESTERN RESERVE UNIVERSITY SCHOOL OF 

LAW 

Mr. ADLER. Thank you, Mr. Chairman, and members of the subcommittee, for the invitation to testify today on the Rapanos decision and its implications for wetlands protection.This issue is of 

particular interest to me, both given that a large share of my academic research has focused on wetlands conservation and the proper role of the Federal and State Governments in that conservation, 

and also because I am a fairly active outdoor recreationist and recognize the ecological services that much of my recreational activity 

depends upon and provided by wetlands. 

It has already become clear in this hearing that Rapanos is a 

very important case. Unfortunately, given the breakdown of the 

votes, it leaves many things ambiguous. But I think it is important 

not to understate what the opinion also makes very clear. Despite 

the lack of a single majority opinion, the Court did provide a discernible holding that the Clean Water Act only extends to those 

waters and wetlands that have a significant nexus to navigable 

waters of the United States. This indicates, among other things, 

that Clean Water Act jurisdiction over private lands is significantly 

more limited than Federal regulators have been willing to acknowledge in recent years. 
33 

I think it also indicates the need for revisions to the current regulations defining waters of the United States under the Clean 

Water Act, because the existing regulations are no longer consistent with applicable Supreme Court precedent. Indeed, I would 

argue, they have not been consistent with Supreme Court precedent for at least the past 5 years. 

In terms of the specifics of the Rapanos holding, as has already 

been noted, the Supreme Court in Marks v. United States held that 

when a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding 

of the Court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds. The 

judgments here were to vacate and remand the lower court opinions of the Sixth Circuit Court of Appeals; so therefore, the concurring opinion of Justice Kennedy and the grounds of the agreement 

between Justice Kennedy and the plurality authored by Justice 

Scalia form the holding of the Court. 

I don’t think that one can cut and paste from the Scalia opinion 

and Stevens opinion to put together a holding of the Court, because 

the Stevens opinion was not part of the holding. Also because the 

Scalia opinion is written in terms where it establishes what is necessary for Federal jurisdiction, but makes clear it is not setting 

forth what would be adequate for jurisdiction. So for example, the 

Scalia opinion says that continuous flow is necessary but not adequate for establishing jurisdiction. 

In determining that a significant nexus between a given water 

or wetland and navigable waters is necessary, the Rapanos Court 

largely followed the reasoning adopted by the Supreme Court in 

SWANCC, Solid Waste Agency of Northern Cook County Army 

Corps of Engineers. Indeed, I would note the Court here is unanimous on the fact that the SWANCC opinion held that isolated 

waters that have no hydrological connection to navigable waters of 

the United States are beyond the scope of the Clean Water Act. 

That is something the Federal Government had not acknowledged, 

that is something that many policy makers have not acknowledged. 

But it is interesting that all nine Justices in Rapanos acknowledge 

that that is in fact what SWANCC held. 

I think it is also important to note here in Rapanos that Justice 

Kennedy and the plurality both explicitly agree that however important given environmental considerations may be, that does not 

justify ignoring, stretching or distorting the text of the statutes 

passed by Congress. That is not the Court’s job. In Justice Kennedy’s words, he said that environmental concerns provide no reason to disregard limits in the statutory text. I would further add 

that environmental concerns also provide no reason to disregard 

limits in the Constitution. 

Insofar as current Federal regulations purport to define waters 

of the United States to include intrastate waters that are isolated 

or that do not maintain a significant nexus to navigable waters, 

they exceed the holdings of both Rapanos and SWANCC. Similarly, 

as both the plurality and Justice Kennedy noted, the Corps of Engineers’ current regulatory definition of what constitutes a tributary 

exceeds the scope of what the Clean Water Act will allow. Both 

opinions rejected the corps’ current formulations. 
34 

Until the Corps and EPA promulgate regulations that are consistent with Rapanos and SWANCC, they will have to engage in a 

case-by-case determination of what falls within Federal jurisdiction. This is not in the interest of the regulated community. It is 

not in the interest of the Federal Government, in terms of ensuring 

that Federal resources are effectively and efficiently focused and 

targeted on meeting Federal goals, and it is not in the interest of 

environmental conservation, because it means the Corps of Engineers will have an extremely difficult time fulfilling its conservation purpose. 

I would also suggest that in developing new regulations, the 

Corps should not make the mistake that it has made in the past 

of seeking to assert the broadest possible interpretation of waters 

of the United States. Rather, it should take the opportunity to 

adopt a definition of significant nexus that is in accord with the 

purposes, all of the purposes, of the Clean Water Act, and focus on 

those waters where the Federal interest is greatest, so the Federal 

Government is concentrating on those matters of greatest concern 

to the Federal Government, and allowing State and local Governments and non-governmental entities to play the important role 

they have historically played in helping us to meet the conservation 

challenges that we face with regard to water quality and wetlands. 

Thank you very much, Mr. Chairman. 

Senator CHAFEE. Thank you, Dr. Adler. 

Dr. Buzbee, welcome. 

STATEMENT OF WILLIAM W. BUZBEE, PROFESSOR OF LAW, DIRECTOR OF ENVIRONMENTAL AND NATURAL RESOURCES 

LAW PROGRAM, EMORY LAW SCHOOL 

Mr. BUZBEE. Thank you, Senators. I thank the Senators and 

their staff for this opportunity to discuss the Rapanos decision. I 

should say that in addition to being a professor at Emory Law 

School, I had the privilege in the Rapanos case of co-authoring a 

brief for a bipartisan group of four former EPA administrators. 

They expressed strong, united support of the Bush administration’s 

position seeking to sustain these long-existing protections of America’s waters. 

As is quite clear after all the witnesses, the Supreme Court’s decision is not the height of clarity. But I do think looking at this 

case and the other cases that have come before it, we can glean 

some fairly clear legal precepts that should guide all of us in the 

future. 

I will organize my comments into three sections. The first, briefly, is why were the stakes in Rapanos so high. Second is what did 

the Court actually do to the law in Rapanos, and here, the witnesses disagree with each other, including me. And then third, 

what is the appropriate political response to Rapanos. 

First, as several of the Senators indicated in their statements, 

the stakes in Rapanos were huge. The question of what count as 

waters of the United States is the linchpin of the statute. It applies 

not just to the wetlands protection, but it also applies to the Section 402 industrial discharge portions of the Clean Water Act. Any 

waters that are not Federal are not Federal for both programs. And 

Americans care a great deal about pollution into America’s rivers. 
35 

Despite the stakes in this case, in the end, a majority of the U.S. 

Supreme Court declined the opportunity to weaken the law’s protections. But then the question is, where is the law left? There is 

no single majority opinion in this case speaking for five or more 

justices. So what we must then do is look at votes and opinion content to understand the decision and where the law is left. 

Most confusingly, what you have is a situation where five Justices agreed that the Army Corps of Engineers had to do better in 

establishing its jurisdiction, but five Justices overwhelming agreed 

with a broad protective rationale for jurisdiction under the Clean 

Water Act. It is this tension between concurrence in the judgment 

and the concurrence in the rationale that creates analytical difficulties. 

It is important to understand that five Justices, Justice Kennedy 

in concurrence and Justice Stevens with Souter, Ginsburg and 

Breyer in dissent, strongly and explicitly in their language disagreed with virtually all aspects of the plurality opinion by Justice 

Scalia. In addition, Justice Scalia at some length attacked Justice 

Kennedy’s opinion. The suggestion by some witnesses today that 

the Scalia and the Kennedy opinions express agreement and should 

be read together I find puzzling. There are five Justices in agreement, but it is hard to put Scalia and Kennedy together in any 

way. 

The question is then what do we do in interpreting these splintered sets of opinions? As stated by the previous panel, the key 

swing opinion is that of Justice Kennedy. Both by itself and also 

looked at with the dissenting opinion with which Justice Kennedy 

agrees and vice versa, most of the statute’s protections do remain 

intact. 

I want to state very clearly that I do not believe that Justice 

Scalia’s opinion for a plurality of Justices represents the law. Justice Scalia and his fellow plurality Justices basically limit Federal 

protections to relatively permanent standing or continuous flowing 

waters. This view, had it been the Court’s, would have discarded 

about three decades of established regulatory approaches and established Court precedent. The other Justices do agree that at least 

this many waters are protected. But five Justices believe Justice 

Scalia’s opinion is way too narrow. 

Justice Kennedy explicitly and repeatedly rejects the Scalia opinion as captured in his line that the Scalia opinion is ‘‘inconsistent 

with the Act’s text, structure and purpose.’’ It is hard to be more 

clear than that. To make Supreme Court law, you need five Justices in agreement, five Justices agreeing, assenting to the Court’s 

rationale. Justice Scalia came up one vote short. Justice Kennedy’s 

opinion is the key. His significant nexus test creates an overwhelming overlap both with existing regulatory approaches as well 

as with the approaches articulated in the dissents. There are five 

Justices saying the Clean Water Act’s integrity goals remain standing. Five Justices agree that non-navigable tributaries must be covered if they and similar or comparable waters are needed to protect 

navigable waters downstream. Five Justices aligned make a Supreme Court precedent, and Kennedy plus the dissenters had overwhelming agreement. 
36 

Again, the dissenters would have gone even further, but five Justices agree overwhelmingly on the rationale. So in the end, I agree 

that after Rapanos, waters protected would include both, and I emphasize both, waters that were protected under the Scalia opinion, 

a small set, plus the waters that would be protected under the 

Kennedy opinion, a much larger set. 

Then the question is, what are political responses, something I 

am sure you are all weighing. Justice Kennedy’s approach does 

leave most protections in place, but as Mr. Cruden stated earlier, 

I think there is no doubt that this case will spawn a great deal of 

litigation, litigation over applications of it and litigation over any 

regulations, if new regulations are forthcoming. The risk here is of 

course that with new industry and real estate developer language 

to play with, the Army Corps of Engineers may begin to essentially 

fold its cards, fear litigation and too quickly decline jurisdiction. 

Somewhat surprising was an interim statement they gave to the 

field where they said, for the interim, let’s shrink jurisdiction down 

to Section 10 of the Rivers and Harbors Act. That is where the law 

stood in 1899. I hope that this is not an indication of where the 

law is going to go. At this point, under any fair reading of Rapanos, 

SWANCC and Riverside Bayview Homes, a great deal of the law 

still stands. 

Now, can the Federal agencies cut back on the waters protected? 

I don’t think they have much latitude to do so. The statute is still 

in place. It has been in place. Any regulations must conform to the 

statutory language, Riverside Bayview Homes, SWANCC language, 

as well as the Rapanos decision and Justice Kennedy’s opinion. 

Senator CHAFEE. Dr. Buzbee, the time has run up, unfortunately. 

Mr. BUZBEE. Thank you. 

Senator CHAFEE. Would you like to add a sentence or two to 

wrap up? 

Mr. BUZBEE. Sure. I guess my main response is that my sense 

today is there is much discussion over whether there should be a 

regulatory or legislative fix. I think a legislative fix enacting into 

law regulatory protections in place for three decades would do a 

great deal to promote stability in the law and allow people to continue using wisdom they have built up over three decades, whether 

they be Republicans or Democrats. Thank you. 

Senator CHAFEE. Thank you, sir. 

Mr. Clayton, welcome. 

STATEMENT OF CHUCK CLAYTON, THE IZAAK WALTON 

LEAGUE OF AMERICA 

Mr. CLAYTON. Thank you, Mr. Chairman and members of the 

Committee. I really appreciate the time today to give you our 

points on this litigation. 

I am the immediate past president of the Izaak Walton League. 

We have been around since 1922. We are a science-based conservation organization. We have about 40,000 members. We all avid 

sportsmen and women. We have 20 State divisions with 300 local 

chapters across the United States. 

We are joined in these comments today with a lot of organizations. My comments also represent the views of Americans who belong to many organizations: the Izaak Walton League, American 
37 

Fisheries Society, American Fly Fishing Trade Association, American Sportfishing Association, Bass/ESPN Outdoors, Berkley Conservation Institute, National Wildlife Federation, Trout Unlimited 

and the Wildlife Society. So that is quite a number of sportsmen. 

As a land-owning resident of South Dakota and an avid hunter 

and angler, I appreciate the opportunity to share my views with 

the Committee and to illustrate just how the recent U.S. Supreme 

Court decision in the joint cases Rapanos and Carabell is affecting 

wetlands and stream protection where it matters most: out on the 

ground. Frankly, the benefits of extending comprehensive protections to the waters such as non-navigable headwater streams and 

seasonally dry potholes are numerous and undeniable. Among their 

functions, these various forms of water improve the water quality 

by retaining and recycling nutrients such as nitrogen and phosphorous, which left unchecked lead to oxygen exhausting algae 

blooms and dead zones, such as red tides. Wetlands trap tremendous amounts of sediment, leading directly to clear, healthier 

downstream waters that otherwise would be choked by sunlight depleting sedimentation. When left intact, wetlands lessen the devastation caused by floods and storms, like that which we so painfully 

witnessed during the Gulf Coast storms of 2005. 

In addition to the important water quality functions that all wetlands perform and headwater streams play, they also provide critical habitat for many species of fish and wildlife, including numerous species that are listed as threatened and endangered. Salmon 

and trout use cold water headwaters for spawning. These streams 

often are intermittent and ephemeral. And as such, their protection 

under the Clean Water Act was left open for debate by the Supreme Court’s decision in Rapanos. 

These ephemeral and intermittent streams make up nearly 60 

percent of the streams of the United States. Losing them would be 

yet another barrier to restoring native trout runs and salmon and 

shad runs. Other non-game fish, such as large mouth bass and 

northern pike use varied types of wetlands and headwaters for the 

same purposes. Each specific type of wetland provides a certain set 

of conditions, including the proper food and cover necessary for the 

survival of that specific species of fish. And by temporarily storing 

water, even isolated wetlands ensure that downstream flows remain both cool and relatively constant, critical elements for healthy 

fish populations, but also important elements to fight and stave off 

the negative effects of drought. 

The thousands of small wetlands that make up the prairie pothole region of the Dakotas, often referred to as North America’s 

duck factory, annually support four million pairs of waterfowl that 

depend on high quality wetlands for nesting and the rearing of 

their young. The Supreme Court’s decision in Rapanos leaves the 

status of virtually all prairie potholes in limbo. Losing these wetlands to development would put the future of these ducks in grave 

peril, and many other species also wetland-dependent. For example, deer, pheasants, quail and many songbirds, as well as reptiles 

and amphibians, such as turtles and frogs, depend on healthy wetlands and are a key component of their habitat during the year. 

The benefits of wetlands are important for people, too. Thirtyfour million anglers and 13 million hunters rely on clean water and 
38 

healthy fish and wildlife populations that isolated wetlands support. These sportsmen and women contributed directly to the sustained economic growth and viability of communities across the 

United States, to the tune of about $70 billion, with a B, annually. 

The economic benefit stems not just from hunters and anglers 

but also birdwatching, one of the most popular and fastest-growing 

pastimes in the Nation, which pumps millions more into local 

economies. Outside of recreation, wetlands are also vital to threefourths of America’s commercial fish production, which is worth 

about $111 billion. If wetlands were left unprotected from agricultural, residential and commercial development, the economic loss 

would be staggering. 

Despite the benefits, the protection of wetlands and many other 

waters has been bogged down by the bureaucratic misrepresentations, allowing important Clean Water Act determinations to be 

made on an ad hoc basis. While the Administration did a good job 

of defending the protection of wetlands and streams in the Rapanos 

case, they have not sufficiently led the way for consistent, vigorous 

use of the Clean Water Act to protect these vital resources. For instance, over a six month span in 2005, the Omaha region of the 

U.S. Army Corps of Engineers, which includes parts of six States, 

including my home State of South Dakota, the corps deemed that 

at least 2,676 acres of wetlands, lakes, streams and other waters 

fell outside the scope of the Clean Water Act. This approach to protecting our most important watershed resources is just not working. 

The Supreme Court decision in Rapanos further muddied the 

waters by providing little clarification to the agency officials in how 

they should proceed to protect the waters and providing no meaningful direction in how the Clean Water Act is to be applied. If this 

decision fails to provide what Government land managers and environmental regulators so desperately need, a clear formula for protecting our valuable water resources, protection should be the rule, 

not the exception. The conservation of our most important water 

resources now depends on the leadership in Congress to make the 

Clean Water Act explicitly inclusive to all wetlands and lakes and 

streams. The Environmental and Public Works Committee is currently considering legislation that would plainly codify the protection of these resources, the Clean Water Restoration Act. 

Senator CHAFEE. Mr. Clayton, you have gone over the time. A 

few seconds to wrap up. 

Mr. CLAYTON. I would be happy to answer any questions at the 

end. 

Senator CHAFEE. Thank you. Well done. 

Mr. CLAYTON. Talk about a little fish in a big pond—no pun intended. 

Senator CHAFEE. Well, you could make an auctioneer. 

[Laughter.] 

Senator CHAFEE. Mr. Kisling, welcome. 
39 

STATEMENT OF KEITH KISLING, NATIONAL ASSOCIATION OF 

WHEAT GROWERS, NATIONAL CATTLEMEN’S BEEF ASSOCIATION 

Mr. KISLING. Chairman Chafee and the committee, I appreciate 

the opportunity today to come before you and testify. It is quite an 

honor, I must say. 

My name is Keith Kisling. I am from Burlington, OK. I am here 

today testifying on behalf of the National Association of Wheat 

Growers and the National Cattlemen’s Beef Association. I raise 

1,500 head of stocker cattle on wheat pasture and 900 to 1,000 cattle on a backgrounding lot. Additionally, I grow wheat on more 

than 3,000 acres. 

Currently, I am chairman of the Oklahoma Wheat Commission 

and am past chairman of the U.S. Wheat Associates. That is the 

marketing arm for wheat growers in our country. My family has 

been farming and ranching for more than 35 years. 

Where I farm and ranch in northwest Oklahoma, we are constantly challenged by the timing and lack of rainfall for crops and 

pasture. We are accustomed to dealing with uncertainty in weather 

and climate conditions. However, as landowners regulated under 

the Clean Water Act, we desperately need regulatory certainty. 

Members of NAWG and NCBA are on the land every day raising 

and growing food for our Nation and the world. We produce the 

cheapest and most plentiful supply of food in the world. Our producers respect and love the land in a way occasional visitors to the 

land may have difficulty comprehending. We know that food production must be sustainable for it to be economically viable in the 

long run. 

Approximately 70 percent of the land in the lower 48 States is 

owned privately. A substantial portion of this land is used for the 

production of food, which is arguably the most important use for 

the land. The production of food in our country cannot be taken for 

granted. Farmers and ranchers in other countries are increasingly 

able to produce comparable food at less cost to the American market. American producers face an ever-tightening web of regulations. 

While many, if not all, of the environmental and work-safety regulations are well intended and address demands of society for use 

of the land, it must also be recognized that limiting and ultimately 

choking the ability of farm and ranch operations to earn a living 

will come at a considerable cost. 

Private property rights are perhaps the most important principle 

in our Nation’s laws and customers, against abusive Government 

conduct. People want to be left alone to use their property as they 

see fit. While we understand that Government can and should regulate private conduct in certain carefully prescribed instances, we 

expect in this country that regulation will be pursuant to law. 

With regard to the recent Supreme Court decision in Rapanos, 

we see some common ground between Justice Scalia’s opinion and 

Justice Kennedy’s concurrence as a starting point to mold a rational policy on wetlands. According to the Supreme Court, the EPA 

and the Army Corps of Engineers must adopt a new regulation 

clarifying the judicial reach of the Clean Water Act. We concur 

wholeheartedly. We are pleased the Court sustained and reaffirmed 
40 

our long-held view that Federal agencies operating under the Act 

do not have unlimited authority to regulate private activities. 

Two fundamental things would benefit landowners. First, agencies should in a timely manner issue a final Agency action when 

asked to make a wetlands jurisdictional decision. Currently, the 

only means for a landowner to challenge a jurisdictional decision 

is to violate the law or seek a costly permit. Second, the 1987 Wetlands Delineation Manual is nothing more than Agency guidance 

subject to change at Agency whim. The manual lacks the due process afforded to landowners under the Administrative Procedures 

Act. 

Much agricultural protection land has some kind of water on it, 

either permanently or intermittently. Without clear notice of the 

extend of the Government’s regulatory reach provided by rule, producers will always be uncertain about the extent they can use their 

land without running afoul of the proscriptions in the Act. 

Much has been made of Justice Kennedy’s proposed significant 

nexus test for determining whether a wetland is within the reach 

of Government regulation under the Act. It may be that jurisdictional determinations for wetlands will have to be done on a case 

by case basis to some extent. However, the Supreme Court has offered some bright lines in the SWANCC decision and the common 

elements in Rapanos for excluding certain waters from the reach 

of the Act. There is just too much room for the different interpretations by agencies and courts about which lands are regulated as 

navigable waters and which activities are exempt. The current situation leaves farmers and ranchers with too much uncertainty and 

a significant risk of endangering activities that will engage in huge 

fines, jail time and the forfeiture of the use of their private property. 

Thank you. 

Senator CHAFEE. Thank you very much, Mr. Kisling. 

The Chairman of the full Committee would like to ask the first 

round of questions, which will be limited to five minutes, as was 

the past round. 

Senator INHOFE. Thank you, Mr. Chairman. 

First of all, let me thank you for allowing me to go first, and my 

colleagues for allowing me to. I have a Senate Armed Services required attendance that I am already late for. But I wanted you to 

know, Mr. Kisling, how refreshing it is to have someone come up 

from Oklahoma and say things that are so logical. I am reminiscent a little bit about what happened 40 years ago this year. I 

came before this committee as a young State legislator, complaining about the property rights that were affected by Lady 

Bird’s Highway Beautification Act of 1965. Now here we are 40 

years later, still worrying about property rights. 

So I appreciate the common sense you bring, and it runs in your 

whole family, I might add. 

I want to show you a few pictures here. These are areas that the 

corps is permitted, as navigable waters, under the Clean Water 

Act. If this were your farm, Mr. Kisling, would you know that these 

are navigable waters subject to Federal jurisdiction? 

Mr. KISLING. No, sir, I wouldn’t. I have some instances in my 

neighborhood that would be close to some of these that are called 
41 

wetlands. For a little information, I read the Rapanos ruling on my 

way here. It gave me a real insight on what is happening in wetlands that I didn’t really know. 

And I think I understand now why EPA and the Corps of Engineers have expanded in the last 10 years their regulations and the 

way they penalize us on some of the things that are happening. I 

think it could be, we wonder if maybe it is the money that they get 

or if it is the power that they want. But I understand now that we spend $1.7 billion a year just for 

private permits, which was really not understandable to me. We 

also in that $1.7 billion, it takes $760 billion just to fulfill that permit. So we spend a lot of money doing those things. 

I just think that we need a bright line, we need something to 

show us some direction on the farm as to whether to go, whether 

we are within the regulation or whether we are not within the regulation. 

Senator INHOFE. Do you mean you are so naive as to suggest that 

we define a wetland? 

Mr. KISLING. Yes, Senator. I would like to see us have some direction, so that we don’t cross over that line and it cost us 63 days 

in jail. 

Senator INHOFE. You heard the example in my opening statement I made about Kingfisher County. You and I are familiar with 

Kingfisher County. Sometimes there is an advantage to not being 

a lawyer, because you read the Constitution and really know what 

it says. And taking property without due process is something that 

has become very commonplace. 

So I think you used the word certainty. And that is really what 

you are talking about, isn’t it? You want certainty, you want a definition, you want the farmers in Oklahoma and throughout America 

to know in advance what they can and can’t do, and to know what 

a definition of a wetland is? Is that the certainty you are looking 

for? 

Mr. KISLING. Yes, sir. 

Senator INHOFE. I think it is very reasonable. 

Mr. KISLING. Senator Inhofe, we have gone from the illustration 

that Ms. Clinton gave a while ago of the pipes, dumping sediment, 

dumping pollution into the streams to our potholes, our buffalo 

wallows in the middle of a wheat field today. That correlation has 

come a long way. Now they say that this little pothole in the middle of a wheat field and a duck flies away and gets in a tributary, 

or a molecule floats away or gets into a tributary is the connection. 

This is the distance that we have come since 1972 and the Clean 

Water Act. 

Senator INHOFE. I appreciate your remarks. 

And Dr. Adler, I appreciate your being back. You testified in our 

Gas Price Act, which is one that I still have hopes for. Let me just 

get something on the record with you. Following the League of 

Latin American Citizens v. Perry, some of the EPA have indicated 

that they believe future courts would uphold a regulation that complies only with the dissent, where it overlaps with Kennedy, using 

the League decision as justification. Do you agree with that? 

Mr. ADLER. I am not sure what the League decision adds to that. 

The binding standard is Marks, which I quoted in my testimony. 
42 

I think the LULAC decision, if one looks at it—and it is certainly 

a case that is a mess and hard to get through—it complies with 

Marks. The holdings of that case are all those instances where five 

Justices agree on a judgment, and concur in this judgment. Whether you are looking at that case or whether you are looking at 

Bakke or you are looking at Grutter, you don’t see things characterized as holdings that rely upon language in opinions that don’t 

concur in the judgment. The reason for that is that such language 

is dicta, it has no legally binding force. 

In this case, that problem is compounded because there are 

places in Scalia’s opinion where he makes clear that he is merely 

noting what an outer bound of Clean Water Act jurisdiction would 

be in his view. He is not saying what the precise test should be. 

In fact, in one of the footnotes he says explicitly that what is often 

cited as the test of the plurality is merely what is necessary but 

not necessarily adequate for the establishment of jurisdiction. That 

would be something very thin to rest jurisdiction on, trying to put 

that together with the dissent that didn’t join the judgment. 

So I think the focus should be on Kennedy’s opinion, just as in 

the Bakke decision the focus was on Justice Powell’s opinion. 

Senator CHAFEE. Thank you, Dr. Adler. Thank you, Mr. Chairman, for taking me out of order. 

Thank you, Senator Inhofe. 

Senator Jeffords. 

Senator JEFFORDS. Dr. Buzbee, in his separate concurring opinion, Chief Justice Roberts says that because there is no opinion 

commanding a majority, then ‘‘lower courts and regulated entities 

will now have to feel their way case by case.’’ This seems to indicate that there is no binding precedent set by this decision. What 

do you interpret the case by case statement to mean? 

Mr. BUZBEE. It is a slightly puzzling statement. I guess I have 

a couple of things to say about it. One is his statement there clearly does not constitute a majority view of the Supreme Court. That 

is his view about how people should work with this case. 

I think looking at this case, there are five Justices in overwhelming agreement about the protective rationale under the 

Clean Water Act. I think that is what lower courts and agencies 

and all people trying to comply with the Act need to look to from 

now on. I think there will be some case by case application, because it is a new case and people are going to have to figure out 

what it means. In that sense, I think he is stating a clearly correct 

point. But I don’t think it is case by case in the sense of no law. 

Senator JEFFORDS. Mr. Clayton, in 2003, in comments to the 

EPA, Vermont, my State, stated ‘‘If the Corps of Engineers loses 

jurisdiction over waters, what are merely tributaries to navigable 

waters, then many activities will go unregulated, and there is a 

great potential for the degradation of streams.’’ Knowing that outdoor recreation accounts for 22 percent of all visitors to Vermont, 

how do you think a lack of protection for small streams in Vermont 

would affect our local communities? 

Mr. CLAYTON. Senator, thank you for the question, but I am not 

very familiar with Vermont. I live out in the heartland, in the 

northern plains of South Dakota. I can tell you that in the State 

of South Dakota, we have an $86 million fishing industry, and that 
43 

is tourists coming to fish in South Dakota, because we have quite 

a few unspoiled waters. 

Sixty-five percent of our wetlands have not been drained, as opposed to States like Iowa, where 95 percent have been drained. 

That would be a huge hit for our State economy, because our State 

economy, the second biggest industry is tourism, between the hunting and the fishing. So I can just tell you from my own experience 

in my own State, it would be a huge hit to our economy. 

Senator JEFFORDS. Well, I appreciate hearing that. I think my 

people feel the same way. 

Mr. Clayton, what do you think of the proposition that it can be 

left largely to the States to determine which streams and wetlands 

should be protected from pollution? And based on your own experience, would this be a workable approach? 

Mr. CLAYTON. Senator, I have been a wetlands advocate forever. 

I can identify with Mr. Kisling here about the idea that he should 

have one place he can go and get delineation of wetlands, etc. 

But so far, you have noticed here this afternoon nothing has 

worked. I don’t believe States should, would or could take care of 

wetland delineations and wetland problems. We have a navigable 

river in South Dakota that runs from almost the North Dakota border down to the southern border of South Dakota, dumps into the 

Missouri River and continues down to the Gulf. There is no way 

one single State should have that kind of jurisdiction over wetlands, etc. Right now, that river is not flowing, because we are in 

an extended drought. 

So what we would we do about that? That just kind of introduces 

you to some of the problem. But what is happening right now cannot be taken care of by State jurisdiction, we don’t believe. 

Senator JEFFORDS. Thank you. 

Dr. Buzbee, do you believe that the agencies are required to rewrite their regulatory definitions of waters of the U.S. in response 

to the Supreme Court’s decision? Or can the agencies continue to 

implement the law under their existing regulations? 

Mr. BUZBEE. My view is if you look at the Justice’s votes, there 

is no majority striking down the regulations. This case concerned 

a particular application of the regulations in two different circumstances. Several Justices basically expressed the desire that 

the agency go back and look at the regulations again. 

But there is a world of difference between the Supreme Court 

striking down a regulation, something that it does occasionally, and 

does so usually with great clarity, and Justices expressing a desire 

that the Army Corps and the EPA clarify the law. I think several 

Justices would like to see clarification in the law, but they are not 

mandating it. As the EPA witness earlier stated, the agencies have 

to weigh many factors in deciding whether it is worth issuing new 

regulations. 

Senator JEFFORDS. Dr. Buzbee, can you explain whether you believe this decision will affect parts of the Clean Water Act, other 

than the wetlands program, and if so, why? 

Mr. BUZBEE. Yes, absolutely. As several people have stated, and 

I mentioned about the definition of waters, this is not just a case 

about wetlands. This case is about what count as waters, and most 

critically, that includes the pollution control provisions of so-called 
44 

NPDES permits, the pollution discharge permits from factories and 

various waste facilities are protected or subject to Section 402. 

Only if waters are Federal are people prohibited from discharging, 

except in compliance with Section 402. So this is a case that concerns wetlands, as well as pollution discharges. 

Senator JEFFORDS. Thank you. 

Senator CHAFEE. Thank you, Senator Jeffords. 

Dr. Buzbee, you suggest at the end of your testimony that we are 

obviously looking for a legislative fix. And how are we going to accomplish that, without exceeding the constitutional restrictions in 

the Commerce Clause as defined by the Supreme Court? What advice can you give us? 

Mr. BUZBEE. I guess I would say I don’t think there would be any 

constitutional issue, that the Restoration Act, at least the versions 

I have seen earlier, really are trying to take three decades of regulatory approaches and turn them into statute. They have not been 

struck down on constitutional grounds. Only one case found a constitutional problem, and that was the SWANCC case involving migratory birds in isolated wetlands. There the court said it would interpret the statute to avoid a constitutional question. 

If you look at Rapanos, five Justices do not see a constitutional 

problem with protecting tributaries and wetlands, such as are at 

issue in this case. 

Senator CHAFEE. And Dr. Adler, can you comment on Dr. 

Buzbee’s legislative fix? 

Mr. ADLER. Yes. I am not sure that Professor Buzbee and I 

would agree on that. Justice Kennedy, for example, in his concurring opinion in Rapanos, says that the reason why there aren’t any 

federalism concerns with the Clean Water Act is because there is 

a significant nexus requirement. And that requirement essentially 

protects the application of the Act from federalism-type concerns. 

And he does not disavow the opinion he joined in SWANCC, which 

suggested that a broader application of Federal authority would 

raise significant federalism concerns. 

I would also note that if one looks at text of the regulations 

themselves, the regulations the corps has not revisited significantly 

or meaningfully in some time, there is language in those regulations which on its face appears to be at odds with some of the Supreme Court’s federalism cases, even despite the medical marijuana case of last year, in part because the Supreme Court test is 

that regulations must control activities that have a substantial effect on interstate commerce. 

The test of the regulations purports to assert Federal jurisdiction 

over things that could affect interstate commerce. There are two 

potential problems there. One is the fact that it is a conditional effect, rather than an actual effect. And two, that it is a sample effect 

as opposed to a significant effect. So in two respects, the regulations could potentially be broader than the Court’s doctrine. 

This isn’t just my view. For example, Professor Richard Lazarus 

at Georgetown wrote a column back in 1995, just after the Lopez 

decision, saying that the Corps of Engineers, as written at the 

time, were ‘‘clearly out of bounds’’ given the Lopez decision. He argued at the time that the Corps of Engineers could rewrite its regulations to achieve most of the same environmental goals without 
45 

those constitutional problems. But the Corps of Engineers has not 

sought to do so, and that has led to some of the cases like 

SWANCC and like this. 

Senator CHAFEE. Do you recommend Congress have some action 

as a result of the Supreme Court decision? 

Mr. ADLER. I think that the administrative process can actually 

handle this. I think the level of detail and specificity that would 

be required to develop a set of regulations that are tailored to the 

ecological considerations involved in wetland protection, and the 

fact that they are different from place to place, that is accomplished more easily in the administrative process than in the legislative process. 

And I don’t think it is simply a question of adopting a one paragraph definition of what constitutes a water of the United States. 

I think it requires a more detailed process of what it is that creates 

a significant nexus between a given wetland or water and navigable waters. I think the administrative process whatever its 

faults, would do that more effectively. 

Senator CHAFEE. Do you agree with that, Dr. Buzbee? 

Mr. BUZBEE. I don’t, primarily for one reason, and that is, any 

new regulatory definition, if promulgated in a final sort of way, 

would itself undoubtedly, to litigation challenge, whether the regulations sought to strengthen the regulations, just hold them constant or weaken them. Legislation, in contrast, would stand a real 

chance of keeping a law stable and as it has been now for about 

three decades. I think avoiding litigation and uncertainty would address many people’s concerns, be they environmentalists or be they 

cattle ranchers, around the country. 

Senator CHAFEE. And Mr. Kisling, in your experience and your 

members’ experience, has the State done a good job of regulating 

wetlands in Oklahoma? Are there strong State laws that require 

you to obtain permits in order to fill wetlands? 

Mr. KISLING. Yes, Senator, I think they have. I have several wetlands on my farms. And we are kind of regulated on how we can 

farm, what types of practices that we can do on these farms that 

have wetlands on them. 

Senator CHAFEE. Can you describe the wetlands? Are they yearround? 

Mr. KISLING. Yes. The wetland I am talking about in particular 

are buffalo wallows, that happened a long time ago when the buffalo roamed in our area. They pressed down this land really hard 

and made a hard bottom to it. We farmed over those some, but we 

haven’t been able to fill them in, and they will still hold a little bit 

of water. 

Senator CHAFEE. Year-round? 

Mr. KISLING. Well, I haven’t dumped an inch of rain out of my 

rain gauge since October. So this year, no, but a lot of years, yes. 

We are not able to go in with a deep ripper and open those up. So 

a lot of times, yes, they do have a little bit of water in them, and 

you can’t fill those like you do everything else, or you are illegal. 

You can’t fill them or you are illegal. There have been a lot of 

neighbors turned in from trying to fill those with dirt, so that they 

don’t hold water. 
46 

Senator CHAFEE. Do you think you should be able to farm those 

wallows? 

Mr. KISLING. The way their interpretation is now of the connection, if an animal, a goose or a duck, and there is water in those, 

flies to a creek or a drainage ditch, and deposits that little bit of 

water in that drainage ditch from that wetland—— 

Senator CHAFEE. I don’t think we should stretch it too far. I am 

not disagreeing with that. But in your experience, these seem to be 

almost year-round in most years wetlands. Is it worth it? Do you 

think we should set the precedent nationwide, fill in these yearround wetlands? I am sure you could make a little extra money 

growing your crops there. 

Mr. KISLING. He said it shouldn’t affect, the price of the property 

shouldn’t be what we emphasize here, it ought to be people. But 

I don’t think, and I agree that it should be people, but we live right 

here in that area where it is. We are not going to drink that water 

ourselves if it is polluted. So I don’t think that that area should be 

considered a wetlands with that strict distinction. So that is why 

I think there needs to be a yellow line, some kind of a bright line 

there, so we know whether we have crossed that line or not. 

Senator CHAFEE. I think that is what we are going to try and do, 

as Senator Inhofe said, give some certainty here. The Supreme 

Court has made that task, presented that task to us. Dr. Adler is 

saying it can be done administratively, Dr. Buzbee is saying it can 

be done legislatively. That is why we are having this hearing. 

I am grateful for your testimony and your experience and bringing what you see on the ground in your farms in Oklahoma here 

to us in Washington. Mr. Clayton, likewise. 

Senator Lautenberg. 

Senator LAUTENBERG. Thank you. I appreciate how courteous 

were to permit our Chairman to ask his questions. So I kind of 

didn’t want to be forgotten a second time. But you are very kind. 

[Laughter.] 

Senator LAUTENBERG. It is interesting to me to learn some of the 

definitions that we will occasionally get from the witness table. I 

did not know arithmetically that plurality is when both sides are 

equal. So thanks for clearing up that definition, Dr. Buzbee. 

I will tell you what surprises me, and I am so disappointed that 

Senator Inhofe is not here, because I don’t get a chance to punch 

back when he is saying things, and I wait for the opportunity when 

he is finished, but then he disappeared. But we differ on a lot of 

things. He often talks about the pizza parlor which has been fined 

and penalized for throwing trash in the wrong place. 

I look at my State, the most crowded State, the most densely 

populated State in the country. We have more people per square 

mile. But Mr. Kisling, we also oddly enough have more horses per 

square mile than any other State in the country. That is always 

a surprise. Because it is not that we have that many horses, but 

we have very few acres. So it works out. In any event, the question 

that comes up, is the country better off for Government regulation 

or Government contribution in any way? When I hear some folks 

talk that say they want to get Government out of their lives, and 

let us be alone and so forth. But the problem is, our actions often 

affect our neighbors and other people’s lives. So I think some regu-
47 

lation is in order. I believe in the free spirit of America, I have devoted my life to it, pretty much. In my business, 30 years in business, fairness and equity, as well as my 20 years in the United 

States Senate. Mr. Kisling, do your cattle graze at all? 

Mr. KISLING. Yes, sir. 

Senator LAUTENBERG. Do they graze on any Federal lands? 

Mr. KISLING. No, sir. 

Senator LAUTENBERG. Do you get the benefit of any support programs in wheat? 

Mr. KISLING. Yes, sir. 

Senator LAUTENBERG. You do. Because I know that you mentioned the fact, is it considered a drought in Oklahoma? Forgive me 

for not knowing. 

Mr. KISLING. Yes, sir, we are very dry. We had half a wheat crop 

this year. 

Senator LAUTENBERG. Wow. It is terrible, because we could give 

you some water from New Jersey, but we don’t have a way of 

transmitting it. 

But so, there is a Government program, I take it. Has business 

been pretty good in your farming and ranching overall? 

Mr. KISLING. The cattle industry has been very good the last few 

years. 

Senator LAUTENBERG. Very good. Even with the fat scare and all 

that stuff? People went back to eating good steaks when they see 

them. So is it fair to say that there is some benefit from some Government intervention in this case? I mean, if they help you endure 

drought in your farming area, it is a worthwhile program, I would 

say, to keep people in business. Do Oklahomans buy bottled water 

at all, do you know? 

Mr. KISLING. Yes, sir, we do. 

Senator LAUTENBERG. They do. Why don’t they just trust us to 

be good neighbors? And you and I, we all know why. But Dr. 

Buzbee, you recommend a legislative solution and your colleague at 

the table, Dr. Adler, recommends an administrative solution. But 

to me, it depends on whose administration it is that tells you where 

we ought to go. So I think legislative we ought to try to iron it out, 

just to be sure. I am hoping that the Supreme Court doesn’t complicate things further, as we have seen by the inability to get a majority opinion there. Wouldn’t you say that the Supreme Court decision in the Rapanos case is likely to lead to more litigation by industries seeking to undo the protections of the Clean Water Act? 

Mr. BUZBEE. Yes, I do think so. I think that despite the fact that 

the case didn’t really unsettle the law, there is new language, and 

Justice Kennedy’s test gives lawyers the opportunity to fashion 

new challenges and tests and probe at the law. So I think we are 

virtually certain to see a great deal of new litigation. 

Senator LAUTENBERG. What weight should be given based on the 

numerical relationship in the Court to Justice Scalia’s opinion? 

Where do we go with that? 

Mr.BUZBEE. Is the question directed to me, Senator? 

Senator LAUTENBERG. Yes. 

Mr. BUZBEE. Thank you. My sense is that the Justice Scalia opinion, the plurality, which states a limitation on the Clean Water 

Act, does not command the necessary five votes. To the extent con-
48 

tinuously flowing or permanent waters might protect some waters 

that otherwise wouldn’t be, I think you have a unanimous court 

saying that certainly should be at least enough. I think in the end, 

Justice Kennedy’s opinion is really the key under any number of 

rationales, Justice Kennedy’s opinion is the key, stating the significant nexus test. That leaves most of America’s waters protected. 

Senator LAUTENBERG. I close, Mr. Chairman, but I have to say 

to Mr. Kisling, I enjoyed hearing his testimony. Don’t be fooled by 

Senator Inhofe. Now, he is a friend of mine. We don’t agree on anything. 

[Laughter.] 

Senator LAUTENBERG. But I consider that we are good friends. So 

don’t believe what he says that Oklahoma is the only place where 

common sense exists, please. 

[Laughter.] 

Senator LAUTENBERG. Thanks very much, Mr. Chairman. 

Senator CHAFEE. Thank you, Senator Lautenberg. Thank you, 

Senator Jeffords. 

If there are no further questions, there may be questions that we 

will submit for the record. Hopefully you will be able to respond as 

soon as you can. Once again, thank you for testifying. 

Yes, Senator Jeffords. 

Senator JEFFORDS. I only wanted to do that, because I want everybody to sit down, because I want to praise you for holding this 

hearing. It was done beautifully, well prepared. I may not see you 

again for a while. 

Senator CHAFEE. Thank you, Senator Jeffords. We are on August 

recess in a week. 

Senator JEFFORDS. That is right. 

Senator CHAFEE. We will reconvene in September. Thank you 

again, gentlemen. 

[Whereupon, at 4:53 p.m., the subcommittee was adjourned.] 

[Additional statements submitted for the record follow.] 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, DC 20460 

JANUARY 9, 2005 

Ms. Jeanne Christie 

Executive Director 

Association of State Wetland Managers 

2 Basin Road 

Wjndham, Maine 04062 

Dear Ms. Christie: 

Thank you for your letter of December 19, 2005, indicating that the Association 

of State Wetland Managers (ASWM) is developing an amicus brief in support of the 

Federal Government in the two cases currently before the U.S. Supreme Court, 

Rapanes v. United States and Carabell v. U.S, Army Corps of Engineers. I appreciate ASWM’s interest in these important cases. 

Your letter requests information on a nationwide scale regarding the extent of 

nun-navigable tributaries and adjacent wetlands, as well as on the number of drinking water intakes and Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits on such waters. The Environmental Protection 

Agency (EPA) has received information from the public and conducted its own data 

search on these and related issues. Much of the data, for example, are extracted 

from national data sets and compared to information provided to EPA in public responses to the 2003 Advance Notice of Proposed Rulemaking (ANPRM) for the 

Clean Water Act Regulatory Definition of ‘‘Waters of the United States.’’ Most of the 
49 

data used to conduct these analyses is publicly available. While these data represent 

a factual summary of information obtained from the public and from Government 

data sets, we have included any appropriate caveats where assumptions have been 

necessary in order to respond to your specific questions. 

Some of the analyses and data are identified below as preliminary because they 

are still being peer reviewed. Data and analyses reviewed and approved through an 

outside peer review process include the NHD methodology and analysis using start 

reaches and intermittent/ephemeral waters as a conservative approximation for 

‘‘non-navigable’’ waters, and the location of NPDES dischargers into such waters. 

The extent of non-navigable tributaries is difficult to estimate nationwide because 

navigability is not a parameter included in national databases. For example, the 

publicly available National Hydrology Dataset (NHD) maintained by the U.S. Geological Survey docs not distinguish between navigable and non-navigable waters. Instead, the NHD characterizes stream reaches based on flow characteristics such as 

perennial and intermittent/ephemeral. We are providing data on the linear extent 

of intermittent/ephemeral streams and ‘‘start reaches,’’ stream segments in the 

NHD that lie at the head of the tributary system and have no other streams flowing 

into them, because streams with these characteristics arc likely to be non-navigable 

waters. We believe that the length of streams in these two categories provides a conservative range of the extent of non-navigable waters in the United States. 

Based on available 1:100,000 scale data from the NHD, we estimate that 53 percent of stream kilometers (2,915,824 km) in the U.S. outside Alaska are start 

reaches. Similarly, queries to the NHD indicate that 59 percent (3, 214,641 km) of 

the total kilometers of streams in the U.S., excluding Alaska, are intermittent/ 

ephemeral, This information suggests that the linear extent of non-navigable waters 

ranges from between 53-59 percent of the total length of streams in the U.S., excluding Alaska. These estimates appear consistent with those submitted by States commenting in response to the ANPRM. EPA has conducted a preliminary analysis to 

estimate the number of wastewater sources authorized under the Clean Water Act’s 

Section 402 permits program to discharge into either start reaches or intermittent/ 

ephemeral streams nationwide based on data from the NHD and EPA’s national 

database for the NPDES program, the Permit Compliance System (PCS), excluding 

Alaska. An analysis of PCS data from June 2004 shows that approximately 85 percent of the individual permits (approximately 37,000 out or 43,000 permits in PCS 

at that time) have data necessary for determining the location of discharges with 

respect to intermittent/ephemeral streams and start reaches. As noted above, these 

water features from NHD have characteristics of non-navigable waters. EPA estimates that over 40 percent of the 37,000 permits with locational data discharge into 

either start reaches or intermittent/ephemeral streams, excluding Alaska. Approximately 28 percent of these discharges are from municipal sewage treatment systems, systems that treat domestic sewage as well as wastewater from commercial 

and industrial users. The other 72 percent include an array of discharges from over 

500 industrial categories, ranging from elementary and secondary schools to petroleum refining to industrial organic chemical facilities. The discharges covered by 

this estimate represent most of the individual discharges but do not include the 

much larger number of discharges covered by storm water and non-storm water general permits (permits that cover multiple, typically smaller, discharges, for which 

EPA lacks sufficient locational data). These data also are consistent with data submitted by States commenting in response to the ANPRM. 

We have also developed a preliminary estimate of public drinking water system 

intakes receiving water from start reaches or ephemeral/intermittent streams, based 

on NHD data and information regarding source water protection areas (SWPAs). 

Preliminary estimates indicate that over 85 percent of identified SWPAs (for surface 

water intakes used us a drinking water source) included start reaches, and approximately 60 percent contain intermittent/ephemeral streams. In total, over 90 percent 

of surface water protection areas contain start reaches or intermittent/ephemeral 

streams. Public drinking water systems which use these intakes (as well as other 

sources) are estimated to provide drinking water to over 110 million people. Of the 

over 14,000 public water supply systems using surface waters, RPA has located (on 

the NHD) and mapped SWPAs for over 7,400 intakes (excluding Alaska but including Puerto Rico) serving 5, 646 public water supply systems. For the purposes of 

this analysis, SWPAs encompass the drainage area of up to 15 miles upstream from 

a drinking water intake, and any SWPA that contains at least one start. reach or 

intermittent/ephemeral stream is included in the count. Please note that this analysis is preliminary, but nonetheless illustrates the important relationship between 

public health and the water quality of headwater, intermittent, and ephemeral 

streams. 
50 

EPA remains committed to the protection of aquatic resources under the CWA. 

AS you know , President Bush announced an aggressive new national goal to move 

beyond no net loss of wetlands in America to achieve an overall increase of the Nation’s wetlands. The President’s challenge is to restore, improve and protect at least 

three million additional acres of wetlands over the next 5 years. For the President’s 

Initiative, EPA committed to restore 6,000 acres of wetlands by 2009 and to improve 

6,000 acres of wetlands by 2009. We are currently putting together a tracking and 

reporting system to measure progress towards these goals. Thank you again for your 

interest in these cases. If you have further questions, please feel free to contact me 

or call Dave Evans, Director of the Wetlands Division, at (202) 566-0535. 

Benjamin H. Grumbles Assistant Administrator 

STATEMENT OF BENJAMIN H. GRUMBLES, ASSISTANT ADMINISTRATOR FOR WATER U.S. 

ENVIRONMENTAL PROTECTION AGENCY AND JOHN PAUL WOODLEY, JR., ASSISTANT

SECRETARY OF THE ARMY FOR CIVIL WORKS, DEPARTMENT OF THE ARMY

Good afternoon, Mr. Chairman and members of the committee. We welcome the 

opportunity to present joint testimony to you today on issues concerning Clean 

Water Act (CWA) jurisdiction over waters of the United States. Our testimony will 

address the status of Federal jurisdiction in light of the Supreme Court ruling in 

Rapanos v. United States and Carabell v. United States. In particular, our testimony will provide background information on our agencies’ roles and responsibilities 

under the CWA, summarize the Rapanos and Carabell decision, and discuss the 

steps our two agencies are undertaking to ensure all CWA programs, including section 404, are implemented in a manner consistent with the CWA. 

OVERVIEW OF ADMINISTRATION WETLANDS POLICY

From ‘‘No-Net-Loss’’ to Net Gain of Wetlands 

President Bush established, on Earth Day 2004, a national goal to move beyond 

‘‘no net loss’’ of wetlands and to attain an overall increase in the quantity and quality of wetlands in America. Specifically, the President established a goal to increase, 

improve, and protect three million acres of wetlands by 2009. Since the President 

announced this objective, EPA, the corps, the U.S. Department of Agriculture 

(USDA), and the Department of Interior (DOI) have restored, created, protected or 

improved 1,797,000 acres of wetlands. We now have 588,000 acres of wetlands that 

did not exist in 2004, we have improved the quality of 563,000 wetland acres that 

already existed, and we have protected the high quality of 646,000 acres of existing 

wetlands. 

These accomplishments were achieved by assuring no net loss of wetlands through 

the regulatory requirements of the 404 program, and also through Federal agency 

conservation programs, including those administered by EPA, the corps, USDA, 

DOI, and the Department of Commerce. 

To sustain this commitment to wetlands conservation, the President’s 2007 budget 

proposes $403 million, an increase of $153 million over the 2006 level, to enroll 

250,000 acres into the USDA’s Wetlands Reserve Program (WRP). This program is 

crucial to the President’s national wetlands initiative and, if enacted, the budget request would enable an annual enrollment of 250,000 acres, an increase of 100,000 

acres over fiscal year 2006, and would bring total cumulative enrollment to more 

than 2.2 million acres. In addition, restored wetlands enrolled in the USDA’s Conservation Reserve Program reached 2 million acres as of June, 2006. These restored 

wetlands are the result of several initiatives, including the 500,000 acre Bottomland 

Hardwood Timber Initiative and the new 250,000 acres Non– Floodplain Wetland 

Restoration Initiative. 

Congress is an essential partner in the President’s conservation agenda, and we 

look forward to continuing our collaboration with you towards reaching our wetlands 

goals. 

Equally necessary to our continued commitment to wetlands conservation is the 

404 regulatory program. Congress enacted the CWA ‘‘to restore and maintain the 

chemical, physical, and biological integrity of the nation’s waters’’, including wetlands, through programs such as section 404. Wetlands are among the Nation’s most 

valuable and productive natural resources, providing a wide variety of functions. 

They help protect water quality, reduce downstream flooding by storing flood 

waters, maintain flows and water levels in traditional navigable waters during dry 

periods, support commercially valuable fisheries, and provide primary habitat for 

wildlife, fish, and waterfowl. Wetlands are at the core of this country’s rich natural 

heritage and are central to its healthy, prosperous future. 
51 

Since 1990, it has been the goal of the Environmental Protection Agency (EPA) 

and the U.S. Army Corps of Engineers (Corps) to achieve no net loss of wetlands 

in the section 404 program. Under section 404, any person planning to discharge 

dredged or fill material to waters of the U.S. must first obtain authorization from 

the corps (or a Tribe or State approved to administer the section 404 program), 

through issuance of an individual permit, or must be authorized to undertake that 

activity under a general permit. In practice, the vast majority of projects (95 percent 

in 2003) are authorized under general permits, which require less paperwork by the 

project proponent than an individual permit application. In terms of the section 404 

program, the no net-loss goal is being accomplished through avoidance, minimization, and compensation for unavoidable impacts to aquatic resources. Corps’ data 

show that we continue to achieve no net loss of wetlands in the 404 regulatory program. However, it is only one of the tools in the Administration’s efforts to achieve 

an overall increase in wetlands nationwide. 

In the 34 years since its enactment, the CWA section 404 program—together with 

Swampbuster, ongoing public and private wetlands restoration programs, and active 

State, Tribal, local, and private protection efforts—has helped to prevent the destruction of hundreds of thousands of acres of wetlands and the degradation of thousands of miles of rivers and streams. The annual rate of wetland loss, from development as well as subsidence and other natural causes, is estimated to have been reduced from 460,000 acres per year in the 1950’s to 60,000 acres annually between 

1986 and 1997, and recent data indicates that we are achieving an annual net gain 

in certain types of wetland acreage and continuing to reduce the net loss of other 

types. 

EPA and Corps Responsibilities Under Section 404 

The EPA and the corps coordinate to implement the section 404 program under 

the CWA, which regulates discharges of dredged or fill material, helping to protect 

wetlands and the aquatic environments of which they are an integral part, and 

maintain the environmental and economic benefits provided by these valuable natural resources. 

The corps is responsible for the day-to-day administration of the section 404 program, including reviewing permit applications and deciding whether to issue or 

deny permits. Annually, the corps staff makes approximately 100,000 jurisdictional 

determinations, and reviews more than 80,000 individual permits and general permit authorizations. EPA comments on these permits as part of the public interest 

review process. EPA’s role under CWA section 404 includes coordinating with States 

or Tribes that choose to administer the section 404 program, interpreting statutory 

exemptions from the permitting requirement, and sharing enforcement responsibilities with the corps. EPA also develops and implements, in consultation with the 

corps, the section 404(b)(1) guidelines, which are the environmental criteria that the 

corps applies when deciding whether to issue section 404 permits. 

In addition to its activities under section 404, EPA coordinates implementation of 

numerous other CWA provisions that involve ‘‘waters of the United States.’’ For example, EPA and approved States and Tribes issue permits under section 402 for discharges of pollutants other than dredged and fill material, and EPA reviews and approves water quality standards developed by approved States and Tribes under 

CWA Section 303. 

Cooperative Implementation of Section 404 and Wetlands Protection 

EPA and the corps have a long history of working together closely and cooperatively in order to fulfill our important statutory duties on behalf of the public. In 

this regard, the corps and EPA have concluded a number of written agreements to 

further these cooperative efforts in a manner that promotes predictability, consistency, and effective environmental protection. For example, on March 28, 2006, the 

U.S. Army Corps of Engineers and EPA published a proposed set of new standards 

to promote ‘‘no net loss’’ of wetlands and streams. This proposed ‘‘mitigation rule’’ 

represents a collaborative effort between the corps and EPA to develop a consistent 

set of science-based standards to compensate for unavoidable impacts to wetlands, 

streams, and other aquatic resources. The rule establishes a single set of standards 

that all forms of compensation must satisfy, and that is based on better science, increased public participation, and innovative market-based tools. 

Implementation of the comprehensive, multi-agency Mitigation Action Plan (MAP) 

[December, 2004] and the Mitigation Regulations will improve the ecological performance and results of compensatory mitigation, and we are committed to ensuring 

that these two complementary efforts work together. To that end, we are making 

adjustments to some of the timelines for release of remaining MAP guidance documents to ensure that they are in harmony with the mitigation rule. The public com-
52 

ment period closed on the proposed mitigation rule on June 30, 2006, and the agencies are in the process of reviewing comments. 

Intergovernmental cooperation extends well beyond EPA and the corps. An important component of successful implementation of the CWA section 404 program is a 

close working relationship with States and Tribes. States and Tribes may assume 

operation of the section 404 program, and to date two have done so (Michigan and 

New Jersey). Many States and Tribes have chosen to protect wetlands under State/ 

Tribal law, while working cooperatively with the Federal agencies without formally 

assuming the 404 program. 

The Administration remains committed to a strong Federal-State partnership to 

protect the Nation’s waters. Annually, EPA has awarded an average of $15 million 

to help enhance existing or develop new wetlands protection programs at the State, 

Tribal, and local levels. The Bush administration has asked Congress to appropriate 

an additional $1 million for these important programs as part of its fiscal year 2007 

budget request. 

In addition to the grants mentioned above, EPA provides funding assistance for 

a variety of CWA programs involving wetlands and other waters. For example, EPA 

awards grants to States and Tribes to implement projects and programs to reduce 

‘‘nonpoint’’ sources of pollution, to support approaches of controlling stormwater and 

other ‘‘wet weather flows,’’ and to reduce and prevent pollution of specific waters 

such as the Great Lakes and the Chesapeake Bay. The Agency also advances the 

President’s Cooperative Conservation agenda through collaborative efforts such as 

the 5 Star Grants Program and the National Estuaries Program. 

SUPREME COURT DECISION IN RAPANOS AND CARABELL

The judgment of the Supreme Court was to vacate and remand both cases for further proceedings. In summary, four Justices, in a plurality opinion authored by Justice Scalia, concluded that ‘‘the lower courts should determine . . . whether the 

ditches or drains near each wetland are ‘waters’ in the ordinary sense of containing 

a relatively permanent flow; and (if they are) whether the wetlands in question are 

‘adjacent’ to these ‘waters’ in the sense of possessing a continuous surface connection 

that creates the boundary-drawing problem we addressed in Riverside Bayview.’’ 

126 S. Ct. at 2235. Justice Kennedy, who concurred in the judgment of the Court, 

established a different test, concluding that the cases should be vacated and remanded to determine ‘‘whether the specific wetlands at issue possess a significant 

nexus with navigable waters.’’ Id. at 2252. Chief Justice Roberts joined in the plurality opinion and also wrote a concurring opinion. Justice Stevens, in a dissenting 

opinion in which Justices Souter, Ginsburg, and Breyer joined, would have affirmed 

the decisions by the lower courts. Justice Breyer also wrote a separate dissenting 

opinion. 

The plurality opinion, authored by Justice Scalia, first concluded that the petitioner’s argument that the terms ‘‘navigable waters’’ and ‘‘waters of the United 

States’’ are limited to waters that are navigable in fact ‘‘cannot be applied wholesale 

to the CWA.’’ Id. at 2220. Citing CWA Section 502(7) and 404(g)(1), Justice Scalia 

opined that ‘‘the Act’s term ‘navigable waters’ includes something more than traditional navigable waters.’’ Id. Then, after reviewing the statutory language, the plurality concluded that ‘‘waters of the United States,’’ includes ‘‘relatively permanent, 

standing or flowing bodies of water. The definition refers to water as found in 

‘streams,’ ‘oceans,’ ‘rivers,’ ‘lakes,’ and ‘bodies’ of water ‘forming geographical features.’’’ Id. at 2221 (citation omitted). The phrase does not include ‘‘ordinarily dry 

channels through which water occasionally or intermittently flows.’’ Id. The corps’ 

interpretation of the term ‘‘the waters of the United States,’’ the plurality concluded, 

was not based on a permissible construction of the statute. 

Justice Scalia elaborated on this test in footnotes. He stated: 

By describing ‘‘waters’’ as ‘‘relatively permanent,’’ we do not necessarily exclude 

streams, rivers, or lakes that might dry up in extraordinary circumstances, such as 

drought. We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months-such as 

the 290-day, continuously flowing stream postulated by Justice Stevens’ dissent. . . . 

It suffices for present purposes that channels containing permanent flow are 

plainly within the definition, and that the dissent’s ‘‘intermittent’’ and ‘‘ephemeral’’ 

streams . . . that is, streams whose flow is ‘‘[c]oming and going at intervals. . .

[b]roken, fitful,’’ . . . or ‘‘existing only, or no longer than, a day; diurnal . . . short 

lived’’ . . . are not. Id. at 2221 n.5 (citations omitted). 

The plurality then examined the factor of the adjacency of the wetlands under review to ‘‘waters of United States.’’ Justice Scalia concluded that ‘‘only those wet-
53 

lands with a continuous surface connection to bodies that are ‘waters of the United 

States’ in their own right, so that there is no clear demarcation between ‘waters’ 

and wetlands, are ‘adjacent to’ such waters and covered by the Act. Wetlands with 

only an intermittent, physically remote hydrologic connection to ‘waters of the 

United States’ do not implicate the boundary-drawing problem of Riverside Bayview, 

and thus lack the necessary connection to covered waters that we described as a 

‘significant nexus’ in SWANCC.’’ Id. at 2226 (citation omitted and emphasis in original). 

In response to arguments that this opinion would ‘‘frustrate enforcement against 

traditional water polluters [under CWA sections 301 and 402] . . . ’’ the plurality 

concluded: ‘‘That is not so.’’ Id. at 2227. The plurality went on to say that ‘‘from the 

time of the CWA’s enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates 

[section 301], even if the pollutants discharged from a point source do not emit ‘directly into’ covered waters, but pass ‘through conveyances’ in between.’’ Id. (citation 

omitted). 

Justice Kennedy did not join the plurality’s opinion, but instead authored an opinion concurring in the judgment. He agreed with the plurality that the statutory 

term ‘‘waters of the United States’’ extended beyond water bodies that are navigable-in-fact. Justice Kennedy, however, concluded that wetlands are ‘‘waters of the 

United States’’ where ‘‘the wetlands, either alone or in combination with similarly 

situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’’’ Id. at 

2248. The concurrence by Justice Kennedy stated, in relevant part, that ‘‘[a]s applied to wetlands adjacent to navigable-in-fact waters, the corps’ conclusive standard 

for jurisdiction rests upon a reasonable inference of ecologic interconnection, and the 

assertion of jurisdiction for those wetlands is sustainable under the Act by showing 

adjacency alone.’’ Id. With respect to wetlands adjacent to nonnavigable tributaries, 

Justice Kennedy explained that: ‘‘[a]bsent more specific regulations, . . . the corps 

must establish a significant nexus on a case-by-case basis[.]’’ Id. at 2249. 

Justice Kennedy did not agree with the plurality’s interpretation of ‘‘waters of the 

United States’’ and agreed with the dissent ‘‘that an intermittent flow can constitute 

a stream. . . . It follows that the corps can reasonably interpret the Act to cover 

the paths of such impermanent streams.’’ Id. at 2243 (citation omitted). 

In his concurring opinion, Chief Justice Roberts wrote that ‘‘[i]t is unfortunate 

that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U.S. 306, 325. . . (2003) 

(discussing Marks v United States, 430 U.S. 188. . . . (1977)).’’ 126 S. Ct. at 2236. 

The four dissenting Justices would have affirmed the lower courts’ opinions and 

upheld the corps’ exercise of jurisdiction in these cases as reasonable. Justice Stevens also concluded: ‘‘In these cases, however, while both the plurality and Justice 

Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the corps’ jurisdiction in both of 

these cases-and in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied-on remand each of the judgments should be reinstated if either of those tests is met.’’ Id. at 2265. 

The Department of Justice testimony will elaborate further on the effect of the 

Supreme Court Decision. 

STEPS TO CLARIFY CWA JURISDICTION AFTER THE RAPANOS AND CARABELL DECISION

The Rapanos and Carabell decision has important implications for administration 

of the CWA. 

The United States will fully implement the CWA consistent with the Rapanos and 

Carabell decision. The Agencies are working closely with the U.S. Department of 

Justice to interpret the decision and its impacts on the scope of ‘‘waters of the 

United States’’ protected under the CWA. In particular, we are working on joint 

EPA/corps guidance clarifying CWA jurisdiction in light of the Rapanos and 

Carabell decision. It is our hope that the guidance moves us beyond disagreement 

over how widely we assert jurisdiction, and toward an agreement on how effective 

we are in protecting wetlands that provide ecological and social benefits. The development of guidance should not be about bigger or smaller jurisdiction but about better results. 

In the meantime, our field staff continues to administer CWA programs. To ensure consistent interpretation of the scope of ‘‘waters of the U.S.’’ in light of Rapanos 
54 

and Carabell, EPA and the corps issued immediate guidance to field staff shortly 

after the decision, indicating that: the field staff should continue to process permit 

authorizations; to the extent circumstances permit, the field staff should temporarily 

delay making jurisdictional calls beyond the limits of the traditional section 10 navigable waters; and where delays are not possible and permit actions require taking 

a position on CWA jurisdictional scope, such determinations should be deferred, 

where possible, until further guidance is provided by Headquarters of both agencies. 

In summary, EPA and the corps are working quickly to develop interim guidance 

regarding the tests defined by the Supreme Court in the Rapanos/Carabell decision, 

in order to provide clarity for the public and to ensure consistency among CWA jurisdictional determinations nationwide. 

CONCLUSION

The agencies remain fully committed to protecting all CWA jurisdictional waters 

as was intended by Congress. Safeguarding these waters is a critical Federal function because it ensures that the chemical, physical, and biological integrity of these 

waters is maintained and preserved for future generations. Our goal in moving forward is to clarify what waters are properly subject to CWA jurisdiction in light of 

the Rapanos/Carabell decision and afford them full protection through an appropriate focus of Federal and State resources in a manner consistent with the Act. 

Working collaboratively and in cooperation with the Department of Justice, EPA 

and the corps will continue to assess CWA jurisdiction in light of Rapanos/Carabell 

issuing additional guidance and refinements as appropriate. We also wish to emphasize that although the Rapanos/Carabell decision and our testimony today focus on 

Federal jurisdiction pursuant to the CWA, other Federal or State laws and programs continue to protect waters and wetlands that may no longer be jurisdictional 

under the CWA following these decisions. 

Thank you for providing us with this opportunity to present this testimony to you. 

We appreciate your interest in these important national issues that are of mutual 

concern. 

RESPONSES BY BENJAMIN GRUMBLES TO ADDITIONAL QUESTIONS FROM

SENATOR CHAFEE

Question 1. While I understand informal guidance has been issued by the corps 

and EPA on the Rapanos/Carabell cases, how quickly does the Administration expect to release formal guidance addressing the Supreme Court’s ruling? Would you 

provide this subcommittee with some indication of what will be in this guidance? 

Response. EPA and the corps are coordinating now to prepare guidance for our 

field offices to address the Supreme Court decision in Rapanos. The guidance will 

provide additional clarity to agency staff, regulated parties, states, and the public 

to ensure that jurisdictional determinations are consistent with the Rapanos decision. We will provide the Subcommittee on Fisheries Wildlife and Water with a copy 

of the guidance when it is completed. 

Question 2. In 2003, EPA and the corps issued guidance to their field staffs on 

how to implement the §404 program in accordance with SWANCC and lower court 

decisions interpreting SWANCC. Some groups believe that the corps and EPA took 

an unduly narrow approach in the 2003 guidance, narrower than was required by 

SWANCC. How will the new guidance that EPA and the corps are developing in 

response to the Rapanos ruling affect the 2003 guidance? 

Response. We anticipate that the new guidance will focus only on issues raised 

by the Rapanos decision. The regulations at issue in Rapanos and Carabell were 33 

CFR 328.3(a)(1), (a)(5), and (a)(7), not (a)(3) (the provision at issue in SWANCC). 

Question 3. Is there any specific type or category of tributaries or wetlands that 

you believe the agencies cannot continue to protect because of the Rapanos decision? 

Response. The agencies respectfully request to defer our answer to this question 

until we have completed our joint guidance addressing the Court’s decision in 

Rapanos. We will provide a copy of that guidance to the Subcommittee when it is 

completed. 

Question 4. Earlier this year, you stated that EPA is putting together a tracking 

and reporting system to measure progress toward the President’s commitment to restore 6,000 aces of wetlands and improve another 6,000 acres of wetlands by 2009. 

What is the status of that tracking and reporting effort? 

Response. The President’s Earth Day 2004 Wetlands Initiative announced a performance-based goal to restore, enhance, and protect at least three million wetland 

acres over the next 5 years. In support of this goal, EPA and other Federal agencies 
55 

have been coordinating closely with other Federal, State, Tribal, local, and private 

entities to track and report our progress in meeting this goal. 

Among the several Federal Agencies working to meet the President’s wetlands 

goal, EPA’s commitment is to achieve an increase of at least 6,000 acres of restored 

wetlands and 6,000 acres of enhanced wetlands over the 5-year period. EPA is currently tracking progress against this commitment as part of the Office of Water’s 

National Water Program Performance Reports. Under this measure EPA currently 

counts wetland acres restored or enhanced under Wetland Five Star Restoration 

Grants, the National Estuary Program, and CWA §319 nonpoint Source grants. The 

measure does not count acres restored or enhanced through enforcement or CWA 

§404 mitigation. 

At mid-year of fiscal year 2006, the cumulative total of acres restored or enhanced 

under EPA’s programs since April 2004 was 97,940 acres. These acres are included 

in The Council on Environmental Quality’s April 2006 report, ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress Implementing the President’s Goal,’’ published in April 2006. The CEQ report indicates a total of 1.797 million acres of wetlands have been restored, improved, or protected in the United States since April 

2004. 

Question 5. Many groups-especially States-worry about the implications of 

Rapanos and SWANCC for the geographic scope of sections of the Clean Water Act 

other than the Section 404 Program, that utilize the same jurisdictional phrase 

‘‘navigable waters’’. The Oil Pollution Act uses the phrase as well. Justice Scalia’s 

plurality opinion addresses this concern, saying that his opinion does not considerably reduce the scope of the 402 program (NPDES permit program) that is central 

to the Act. Do you agree that the plurality opinion does not affect the jurisdictional 

reach of §402, or other Clean Water Act provisions (such as Sections 301, 202, 309, 

311, and 401), or are there still reasons for concern on this point? 

Response. The agencies respectfully request to defer our answer to this question 

until we have completed our joint guidance addressing the Court’s decision in 

Rapanos. We will provide a copy of that guidance to the Subcommittee when it is 

completed. 

RESPONSES BY BENJAMIN GRUMBLES TO ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question 1. Both the plurality and concurrence indicated that the application of 

the ordinary high water mark definition to determine upstream limits of jurisdiction 

has led the agencies to exceed the jurisdictional limits of the Clean Water Act. To 

determine the upstream limits, will you be revising the definition of ordinary high 

water mark, or will you be using a different test altogether? 

Response. The agencies respectfully request to defer our answer to this question 

until we have completed our joint guidance addressing the Court’s decision in 

Rapanos. We will provide a copy of that guidance to the subcommittee when it is 

completed. 

Question 2. While a majority in the Rapanos case has rejected the use of the ordinary high water mark, I would like to ask a question about it because I think it 

shows just how far astray the corps has gone with its regulatory program. In its 

2004 report, the GAO found that ‘‘districts in the arid West developed a method for 

identifying the jurisdictional boundaries of dry channels that flood occasionally, expanding several times their normal size.’’ How is this consistent with the ordinary 

high water mark, which according to numerous administrative documents and court 

cases does not include annual flood elevation or annual spring floods? 

Response. The agencies respectfully request to defer our answer to this question 

until we have completed our joint guidance addressing the Court’s decision in 

Rapanos. We will provide a copy of that guidance to the subcommittee when it is 

completed. 

Question 3. Many desert drainages are just a few feet wide, carry water for only 

a few hours a year, and rarely, if ever, carry water to traditional navigable waters. 

Gage data maintained by Maricopa County, AZ from 1993 to 2000 shows that South 

Mountain Fan, a desert drainage in Phoenix, carried water for only 7 hours during 

the 7-year period. It is more than 100 miles from the Colorado River. Do you think 

such a feature should be regulated as ‘‘water of the United States?’’ Under what authority? 

Response. The agencies respectfully request to defer our answer to this question 

until we have completed our joint guidance addressing the Court’s decision in 
56 

Rapanos. We will provide a copy of that guidance to the subcommittee when it is 

completed. 

Question 4. Obtaining a Section 404 permit in Arizona has been made more difficult because EPA Region IX has been routinely objecting to the corps’ permitting 

of large-scale, master-planned communities in Arizona. Region IX asserts that if any 

part of a project requires a Section 404 permit, then the entire project is federalized 

and requires the most time-consuming and costly of all environmental documentation under the National Environmental Policy Act, an environmental impact statement. The corps regulations say that the corps NEPA analysis should be limited to 

the part of the project that is subject to Federal control and responsibility. Do you 

believe that Federal agencies should be regulating the entire project? 

Response. The National Environmental Policy Act (NEPA) requires Federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. The NEPA process generally includes an evaluation of the 

environmental effects, direct, indirect and cumulative, of Federal actions. The public 

has an important role in this process. There are three levels of analysis depending 

on whether or not a Federal action could significantly affect the environment. These 

three levels include: categorical exclusion determination; preparation of an environmental assessment/finding of no significant impact (EA/FONSI); and preparation of 

an environmental impact statement/ record of decision (EIS/ ROD). If an Agency determines that the environmental effects of a proposed major Federal action will be 

significant, an EIS is prepared. As defined in the Council on Environmental 

Quality’s regulations implementing NEPA at 40 C.F.R. §1508.18, the term ‘‘‘major 

Federal action’ includes actions with effects that may be major [i.e. significant] and 

which are potentially subject to Federal control and responsibility.’’ Thus, it is appropriate for the corps to prepare an EIS when its action, specifically issuance of 

a Federal permit under the §404 program, would have significant environmental impacts, direct, indirect or cumulative. This is a case-by-case inquiry. 

Question 5. Beside 33 C.F.R. §328.3(a)(1), is there any other category of ‘‘water’’ 

in the current definition of ‘‘waters of the United States’’ whose regulation will always be consistent with the governing rationale of Rapanos? 

Response. The agencies respectfully request to defer our answer to this question 

until we have completed our joint guidance addressing the Court’s decision in 

Rapanos. We will provide a copy of that guidance to the subcommittee when it is 

completed. 

Question 6. EPA Region IX claims that ephemeral washes-shallow dirt paths in 

the desert-are ‘‘Aquatic Resources of National Importance’’ and are attempting to 

federalize all private development in the Arizona and Nevada deserts by blocking 

and delaying 404 permits. There is no EPA definition of an ephemeral wash yet, 

the EPA declares them all ‘‘wetlands’’ necessary to preserve. With thousands of 

these washes in the desert does the EPA suggest that all private development 

should be managed by the Federal Government? 

Response. In light of the Supreme Court’s decision in Rapanos, EPA and the corps 

will need to make case-by-case determinations whether a particular water body is 

a ‘‘water of the United States’’ under the Clean Water Act. For waters that are subject to Clean Water Act jurisdiction, the CWA §404 permitting process provides a 

mechanism for private development to go forward while ensuring that important 

aquatic resources, including wetlands, are protected. 

Question 7. Which regulations, if any, survive Rapanos? How does Rapanos affect 

these sections of the 33 CFR 328.3 regulation? (a)(5)—tributaries (of other waters 

included in the definition) (a)(7)—wetlands adjacent (to other waters included in the 

definition) (c)—the definition of ‘‘adjacent’’ (e)—the definition of ‘‘ordinary high 

water mark’’ 

Response. The agencies respectfully request to defer our answer to this question 

until we have completed our joint guidance addressing the Court’s decision in 

Rapanos. We will provide a copy of that guidance to the Subcommittee when it is 

completed. 

RESPONSES BY BENJAMIN GRUMBLES TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. During the hearing, I asked the following questions: 

Are wetlands important to water quality and flood control? Do pollutants flow 

downstream from small tributaries to larger bodies of water? When it rains in a nor-
57 

mally dry area, as it did in Phoenix, AZ last week, are the contents of dry 

streambeds carried downstream with the rainwater? 

Your responses were yes, yes, and it depends. Can you please elaborate on each 

response, and for my last question can you provide a complete description of a situation in which a pollutant located in a dry streambed would not be carried downstream with rainwater? 

Response 1a. Yes, adjacent wetlands provide a variety of different functions ‘‘in 

place,’’ the benefits of which are realized in the immediately surrounding landscape, 

but which also have repercussions for the integrity of waters downstream. Among 

the most prominent of these are flood control and augmentation of water quality. 

The immediate effects of floodwater detention within a given hydrologic regime are 

felt most clearly immediately downstream of the detention, so wetlands that detain 

floodwaters protect areas immediately downstream; as these effects are aggregated 

across a large landscape they gain greater importance for mitigation of flood flows 

in navigable-in-fact waters. The same may be said of wetlands’ ability to augment 

water quality. For an individual wetland, this is most pronounced, for example, 

where it lies immediately upstream of a drinking water intake. But in the aggregate, such wetlands can have increasingly important effects on the quality of downstream waters. 

The functions of individual wetlands are due in part to their interaction with adjacent lands and other wetlands; flood control and water quality functions are determined by number, extent, and position of wetlands within the watershed. Wetlands 

improve water quality by accumulating nutrients, trapping sediments, and transforming a variety of substances. In many watersheds, wetlands receive dissolved 

and suspended compounds and materials from larger areas; therefore they may 

have a disproportionate effect on water quality. 

Riverine wetlands retain runoff waters that contribute to flood peaks, mostly because of their location adjacent to a stream. These wetlands retain surface, subsurface, and/or groundwater that originates from upland areas, gradually releasing 

it to streams, which can be important for maintaining baseflow. Headwater wetlands are important for regulating water flow to downstream rivers. Peak flows in 

a stream are directly related to the total amount of wetland within the watershed, 

or the amount of wetlands in headwaters of that watershed. In other words, fluctuations are moderated by presence of wetlands which provide flood storage capacity, 

and headwater wetlands are in the best position to control flooding. A watershed 

that has fewer wetlands may be subject to more intense peak flows because of less 

wetland flood storage capacity. 

Wetlands located next to surface waters improve water quality by trapping sediments, removing nitrogen, removing other nutrients, and trapping sediments laden 

with phosphorous because they receive water before it reaches the stream channel. 

Such wetlands provide important functions for natural improvement of water quality because of their ability to filter water and transform chemical compounds in 

water. 

Response 1b. In general, pollutants are able to flow downstream from small tributaries to larger bodies of water. For example, downstream water quality is influenced by headwater—first and second order—streams because headwaters are 

among the sources that feed large streams, rivers, and lakes. This close connection 

means that degraded water quality is transported downstream as water from impacted headwaters flows into larger streams, rivers, and lakes within the watershed, affecting the water quality of these downstream water bodies. While it may 

be true that an individual headwater stream may not significantly impact downstream water quality, the cumulative effects of many degraded headwater streams 

within a single watershed are often ecologically important. 

As discussed below, there may be certain instances where pollutants do not flow 

downstream, depending on volume of flow and the qualities of the pollutant. 

Response 1c. Based upon the information above, in most cases pollutants deposited in a dry stream bed will move downstream during flow events. However, the 

ability of rainwater to carry contents (i.e., pollutants) of a dry stream downstream 

depends upon the volume of flow and the qualities of the pollutant in the stream 

bed. For example, if the pollutant is a large dense material that would not be able 

to be carried by the volume of flow, it will remain in the stream bed unless influenced by other conditions (such as a change in bed slope, etc.). In addition, if the 

precipitation event is not enough to generate surface flow in an ephemeral stream, 

such an event will not result in movement of pollutants in a streambed. 

Question 2. When the EPA issued your Advanced Notice of Proposed Rulemaking 

in 2003, in addition to asking whether the regulations should define ‘‘isolated 

waters’’, the EPA also invited views ‘‘as to whether any other revisions are needed 

to the existing regulations on which waters are jurisdictional under the CWA.’’ At 
58 

the time, I was assured that this was standard language that EPA included in almost every ANPRM, that the scope of the rulemaking was narrow. I was quite surprised, therefore, when I read in Justice Roberts’ concurring opinion, the following 

footnote, attempting to refute Justice Stevens’ assertion that the EPA ANPRM was 

narrow, limited to questions about jurisdiction over isolated, intrastate, non-navigable waters. Justice Roberts’ states, ‘‘The scope of the proposed rulemaking was not 

as narrow as Justice Stevens suggests, post, at 10, n. 4 (dissenting opinion). See 68 

Fed. Reg. 1994 (2003) (‘‘Additionally, we invite your views as to whether any other 

revisions are needed to the existing regulations on which waters are jurisdictional 

under the CWA’’)’’. This interpretation of this phrase directly contradicts the EPA’s 

description of the intent of this rulemaking. Justice Stevens’ description of the facts 

is completely consistent with the explanation I received from EPA at the time. Was 

the ANPRM issued by the Administration in response to SWANCC of narrow intent, 

as explained to me at the time, or was the ANPRM issued by the Administration 

of broad intent, as misinterpreted by Justice Roberts? Given the misinterpretation 

of the Agency’s use of this phrase in the ANPRM in this case by Justice Roberts, 

will the EPA eliminate the use of this language from its standard parlance in 

ANPRM documents in the future? 

Response 2a. EPA published an Advance Notice of Proposed Rulemaking in the 

Federal Register on January 15, 2003, (68 FR 1991) ‘‘in order to obtain early comment on issues associated with the scope of waters that are subject to the Clean 

Water Act (CWA), in light of the U.S. Supreme Court decision’’ in SWANCC. The 

ANPRM posed two specific questions on which it solicited comments: whether links 

to interstate commerce provide a basis for determining CWA jurisdiction over isolated, intrastate, non-navigable waters, and whether and the agencies should define 

‘‘isolated waters’’ in regulation. While the ANPRM focused on the implications of 

SWANCC, to ensure that all potential jurisdictional issues raised by the SWANCC 

decision were subject to public input, EPA invited comment more broadly on its regulations defining ‘‘waters of the United States.’’ EPA’s statements to you were accurate that the intent of the ANPRM was narrow, and focused on the questions about 

jurisdiction over isolated, intrastate, non-navigable waters, notwithstanding the opportunity provided the public to comment on issues beyond those specifically posed 

in the ANPRM. 

Response 2b. When EPA chooses to seek early public input through an ANPRM, 

we try to ensure that the public is able to comment on all potential issues it believes 

may be relevant to the matter on which the Agency seeks input. The purpose of an 

ANPRM is not to propose for comment an Agency position, but rather to specify 

issues on which the agency wants and needs the views of and data from interested 

stakeholders and the general public. Therefore, in some cases, it is appropriate to 

use language like that used in the SWANCC ANPRM to ensure that commenters 

will consider and provide input on the issues raised by the ANPRM questions as 

well as additional issues they think are relevant. In contrast, in a notice proposing 

actual regulatory revisions (i.e., a Notice of Proposed Rulemaking), the issues on 

which comment is sought are narrowed to those specific regulations the Agency proposes to revise. 

Question 3. You spoke about the President’s goal to, ‘‘. . . move beyond ‘no net 

loss’ of wetlands and to attain an overall increase in the quantity and quality of 

wetlands in America.’’ The term ‘‘overall increase’’ means that more wetlands are 

created per year than are destroyed. Missing from the Administration’s 2006 wetlands report is the number of acres of wetlands that were destroyed or compromised 

during the period measured in the report. How many acres of wetlands were destroyed or compromised between 2004 and 2006? 

Response. The Corps of Engineers is charged with the day-to-day administration 

of the CWA section 404 permit program. According to corps’ estimates, during fiscal 

year 2005 applicants requested authorization to impact more than 30,000 acres of 

wetlands. For this same period, final Department of the Army permits authorized 

applicants to impact approximately 20,000 acres of jurisdictional waters, resulting 

in avoidance of more than 10,000 acres of wetlands due to efforts of the corps permit 

managers to work with applicants to avoid and minimize impacts. In addition, the 

corps required applicants to provide more than 56,000 acres of wetlands to compensate for the unavoidable, permitted impacts. The corps requires greater than 1:1 

mitigation ratios to insure mitigation success to meet the no net loss goal. 

Question 4. Mr. Grumbles, what does the EPA plan to do to ensure continued protections for the nation’s waters in the wake of the Rapanos/Carabell decision? 

Response. EPA and the corps have a long history of working together closely and 

cooperatively in order to fulfill our important statutory duties on behalf of the pub-
59 

lic, and we expect this cooperative approach to continue as we implement the Clean 

Water Act as interpreted by the Rapanos decision. 

In this regard, the corps and EPA have concluded a number of written agreements to further these cooperative efforts in a manner that promotes predictability, 

consistency, and effective environmental protection. For example, on March 28, 

2006, the U.S. Army Corps of Engineers and EPA published a proposed set of new 

standards to promote ‘‘no net loss’’ of wetlands and streams. This proposed ‘‘mitigation rule’’ represents a collaborative effort between the corps and EPA to develop 

a consistent set of science-based standards to compensate for unavoidable impacts 

to wetlands, streams, and other aquatic resources. The rule establishes a single set 

of standards that all forms of compensation must satisfy, and that is based on better 

science, increased public participation, and innovative market-based tools. 

Intergovernmental cooperation extends well beyond EPA and the corps. An important component of successful implementation of the CWA section 404 program is a 

close working relationship with States and Tribes. States and Tribes may assume 

operation of the section 404 program, and to date two have done so (Michigan and 

New Jersey). Many States and Tribes have chosen to protect wetlands under State/ 

Tribal law, while working cooperatively with the Federal agencies without formally 

assuming the 404 program. 

The Administration remains committed to a strong Federal–State partnership to protect the Nation’s waters. Annually, EPA has awarded an average of $15 million 

to help enhance existing or develop new wetlands protection programs at the State, 

Tribal, and local levels. The Bush administration has asked Congress to appropriate 

an additional $1 million for these important programs as part of its fiscal year 2007 

budget request. In addition to the grants mentioned above, EPA provides funding 

assistance for a variety of CWA programs involving wetlands and other waters. For 

example, EPA awards grants to States and Tribes to implement projects and programs to reduce ‘‘nonpoint’’ sources of pollution, to support approaches of controlling 

stormwater and other ‘‘wet weather flows,’’ and to reduce and prevent pollution of 

specific waters such as the Great Lakes and the Chesapeake Bay. The Agency also 

advances the President’s Cooperative Conservation agenda through collaborative efforts such as the 5 Star Grants Program and the National Estuaries Program. 

Question 5. Mr. Grumbles, the Clean Water Authority Restoration Act would take 

the EPA’s and corps’ definition of ‘‘waters’’ and add it to the statute. Wouldn’t this 

bill have essentially the same effect as the position taken by the administration in 

Court? 

Response. The Administration has not stated a position regarding the Clean 

Water Authority Restoration Act. Similarly, EPA has not assessed how the Clean 

Water Authority Restoration Act relates to the legal arguments made in court. The 

Agencies appreciate the interest that the bill’s cosponsors have in strong protection 

of the Nation’s aquatic resources. 

Question 6. Mr. Grumbles, it seems inevitable that the Rapanos-Carabell decision 

will affect Clean Water Act programs other than wetlands. I understand there is 

already one case in court challenging the scope of the Agency’s oil spill prevention 

and liability program under section 311 based on the Supreme Court’s decisions. 

What are the implications of the Rapanos-Carabell decision for all of the other 

Clean Water Act programs administered by your Agency? 

Response. The agencies respectfully request to defer our answer to this question 

until we have completed our joint guidance addressing the Court’s decision in 

Rapanos. We will provide a copy of that guidance to the subcommittee when it is 

completed. 

Question 7. During the hearing, I inquired as to the jurisdictional status of Lake 

Champlain and its tributaries post-Rapanos-Carabell. You indicated that you did 

not know if the jurisdictional status of the Lake and its tributaries had changed, 

and that you would provide an answer for the record. Please indicate if the jurisdictional status of Lake Champlain and its tributaries has changed post-RapanosCarabell. 

Response. Clean Water Act jurisdiction over Lake Champlain, as an interstate 

water that is ‘‘traditionally navigable,’’ as courts have interpreted this term, is unaffected by the Supreme Court decision in Rapanos. Regarding jurisdiction over tributaries to Lake Champlain, it would be necessary to gather additional facts about 

each tributary in order to make a determination regarding potential effects in light 

of Rapanos. 

Question 8. In April, the EPA issued its first Wadeable Streams assessment, focusing specifically on streams that could be measured without a boat. You found 

that 42 percent of such streams nationwide are impaired. In January of 2005, the 

EPA wrote a letter suggesting that about 53 percent of all streams nationwide are 
60 

non-navigable. Given this information, of the 42 percent of streams that are impaired, about how many would lose protections if the jurisdictional test in the Scalia 

opinion were to become the standard? 

Response. The Scalia test indicates that waters that are traditionally navigable 

or wetlands immediately adjacent are jurisdictional, as well as tributaries that are 

‘‘relatively permanent’’ and wetlands that have a continuous surface connection to 

such waters. As discussed above, the joint EPA/corps guidance is still pending. 

As discussed in the January 9, 2006 letter, the extent of non-navigable tributaries 

on a national scale is difficult to estimate because ‘‘navigability’’ and ‘‘relatively permanent’’ are not parameters included in national databases. For example, the NHD 

does not distinguish between navigable and non-navigable waters. 

Question 9. On June 1, the New England Regional Administrator of the EPA 

wrote an opinion piece entitled, ‘‘Wetlands Can Help Reduce Flooding.’’ It stated, 

‘‘. . . one of the driest spring seasons in decades transformed into two weeks of 

heavy rainfall, causing major flooding—Can our natural environment keep pace 

with such extremes? The answer may be ‘‘yes,’’ so long as we keep wetlands around 

to help mitigate the effects of extreme weather.’’ In a world where we are beginning 

to see the effects of global climate change, we are likely to be looking for mitigating 

actions in the near future. Mr. Grumbles, can you describe how wetlands can help 

mitigate the impacts of flooding? 

Response. Wetlands provide a variety of different functions ‘‘in place,’’ the benefits 

of which are realized in the immediately surrounding landscape, but which also 

have repercussions for the integrity of waters downstream. Among the most prominent of these is flood control. The immediate effects of floodwater detention within 

a given hydrologic regime are felt most clearly immediately downstream of the detention, so wetlands that detain floodwaters most clearly protect areas immediately 

downstream; it is as these effects are aggregated across a large landscape that they 

gain importance for mitigation of flood flows in navigable-in-fact waters. 

The ability of wetlands to reduce the impacts of floodwaters can also mitigate for 

excessive flows during times of flooding, allowing navigable-in-fact waters to constantly maintain their navigability. An analysis of the 1993 floods of the Mississippi 

River concluded that the excessive flow, caused in part by wetlands loss, contributed 

to severe disruptions in navigation along the Mississippi mainstem. Barge traffic 

was closed on the majority of mainstem rivers from July 11–August 15, 1993, with 

severe limitations continuing until November of that year. The navigation industry 

lost an estimated $300 million per month, with Illinois alone losing more than $165 

million, according to the Interagency Floodplain Management Review Committee report, ‘‘Sharing the Challenge: Floodplain Management into the 21st Century’’ 

(Washington, DC: Government Printing Office, 1994, p. 19). 

Question 10. Did the EPA approve the Army Corps guidance that restricts Clean 

Water Act jurisdiction to Section 10 of the Rivers and Harbors Act? 

Response. We are assuming that you are discussing the guidance to their respective field staffs that EPA and the corps issued shortly after the Rapanos decision. 

EPA and the corps coordinated the agencies’ respective initial guidance to the field, 

and agreed that it would be best to delay new jurisdictional determinations outside 

the scope of traditionally navigable waters pending release of the Rapanos interim 

guidance. However, the corps’ initial guidance called for continued issuance of new 

general and individual permits in order to minimize impacts to ongoing activities 

subject to regulation under Section 404, and noted that modifications could be made 

to such permits if appropriate following issuance of the interim guidance. The corps 

initial guidance did not indicate that CWA jurisdiction after Rapanos was limited 

to Section 10 waters. 

Question 11. What actions has the EPA taken to work with the Army Corps to 

implement the findings of the 2005 GAO report recommending that the corps require detailed rationales for non-jurisdictional decisions and finalize with EPA the 

additional guidance to help the districts make certain jurisdictional decisions? 

Response. Together, the EPA and the corps have been taking several steps to enhance data collection and other elements of program implementation. For example: 

• The corps worked with EPA to create a reporting form to guide jurisdictional 

analysis and record the basis for determination. • All CWA §404 jurisdictional determinations are required to be posted on the 

District web sites for public access. 

Based on 2 years of posted JD data and the Rapanos decision, the Agencies are 

updating the questions and developing a single form to document all jurisdictional 

decisions. 

Future guidance will continue to focus on improvements to documentation in response to these inconsistencies. 
61 

RESPONSES BY BENJAMIN GRUMBLES TO ADDITIONAL QUESTIONS FROM

SENATOR BOND

Question 1. Provide and describe, if available, the statutory, regulatory or case 

law authority for Federal regulation of runoff. 

Response. The principal source of authority for EPA’s regulation of storm water 

is section 402(p) of the Clean Water Act. 33 U.S.C. §1342(p). Amendments to the 

CWA in 1987 added section 402(p), which directs EPA to implement, in two phases, 

a program for addressing storm water discharges. Section 402(p)(4) requires that 

EPA establish regulations setting forth permit application requirements for storm 

water discharges associated with industrial activity and municipal separate storm 

sewer systems serving populations of 100,000 or more. Section 402(p)(5) requires 

EPA to study additional classes of storm water discharges. Section 402(p)(6) directs 

EPA to issue regulations (based on the results of the studies under section 402(p)(5)) 

to designate additional classes of storm water discharges to be regulated to protect 

water quality and to establish a comprehensive program to regulate such designated 

sources. EPA’s regulations governing storm water discharges are found at 40 C.F.R. 

§§122.26, 122.30–122.37. 

EPA’s ‘‘Phase II’’ storm water regulations were largely upheld by the United 

States Court of Appeals for the Ninth Circuit in Environmental Defense Center v. 

EPA, 344 F.3d 832 (9th Cir. 2003). 

EPA’s storm water regulations were amended most recently on June 12, 2006 in 

response to an amendment to the CWA passed in the Energy Policy Act of 2005. 

See, 71 Fed. Reg. 33628–33640. 

Under the CWA, EPA also regulates discharges from concentrated animal feeding 

operations (CAFOs) and land application areas under the control of CAFOs, which 

consist, in part, of storm water runoff. See. 33 U.S.C. §§1362(14), 1342. EPA’s regulations governing discharges from CAFOs are primarily found at 40 C.F.R. §122.23 

and 122.42(e). ‘‘Agricultural storm water discharges’’ are not subject to permitting 

requirements under the CWA. See 33 U.S.C. §§1362(14) 

Question 2. How, if available, is the Federal Government authorized to limit actions creating runoff where no runoff existed before? Example scenario: construction 

of a parking lot which has the effect of creating runoff. Please provide examples and 

descriptions of the Federal statutory and regulatory authority that would be used, 

examples of any applicable Federal guidance, determinations or case law, and any 

permitting process required to undertake the action. 

Response. EPA regulates the discharge of storm water through the NPDES permitting program under section 402 of the CWA. EPA does not, however, regulate 

land use decisions under the CWA. These decisions are generally covered by local 

ordinances or zoning codes. The NPDES storm water program covers discharges of 

storm water from municipal storm sewer systems, industrial facilities, and construction sites (generally those disturbing an acre or more of land). 

Under these three categories of discharges, runoff from individual parking lots is 

not regulated by the NPDES storm water program and individual parking lots 

would not require NPDES permits for the runoff flowing from them, except in limited instances where the storm water from the parking lot is a ‘‘storm water discharge associated with industrial activity’’ as that term is defined in 40 C.F.R. 

§122.26(b)(14). Regarding construction of a parking lot, EPA regulations require the 

construction site operator to obtain an NPDES permit for storm water discharges 

occurring during the construction of the lot if one acre or more of land is disturbed. 

40 CFR §§122.26(b)(14)(x) and 122.26(b)(15). 

EPA and authorized States do have the authority to permit other discharges: (1) 

for which storm water controls are needed based on wasteload allocations that are 

part of a total maximum daily load, (2) that contribute to a violation of a water 

quality standard, or (3) that are a significant contributor of pollutants to waters of 

the United States. 33 U.S.C. §1342(p)(2)(E); 40 C.F.R. §122.26(a)(9)(i)(C), (D). 

If a facility takes actions to create a storm water discharge that does not, in itself 

require an NPDES permit, but discharges storm water through a municipal separate storm sewer system (MS4) that is subject to NPDES requirements, there may 

be storm water control measures required by the MS4 operator that apply to the 

discharger. MS4 permits typically require the municipal permittee to implement 

storm water management programs to protect water quality. Such a municipal 

storm water management program may establish requirements for facilities that 

discharge storm water into the MS4. 

Question 3. How, if available, is the Federal Government authorized to limit actions allowing runoff where the potential runoff is currently blocked? Example scenario: removal or compromising of a physical barrier, such as a berm, adjacent to 

a parking lot, thereby allowing runoff from the parking lot. Please provide examples 
62 

and descriptions of the Federal statutory and regulatory authority that would be 

used, examples of any applicable Federal guidance, determinations or case law, and 

any permitting process required to undertake the action. 

Response. As discussed above, section 402(p) of the CWA directs EPA to develop 

NPDES regulations for storm water discharges. The regulations EPA developed 

under section 402(p) require NPDES permits for certain classes of storm water discharges, including storm water discharges associated with industrial activity, storm 

water discharges from certain construction activities and discharges from many municipal separate storm sewer systems (MS4). If a facility takes actions to create a 

storm water discharge that is subject to the NPDES program, the discharge must 

be authorized by an NPDES permit and will be subject to the requirements of the 

permit. Additionally, EPA has authority to require NPDES permits for other storm 

water discharges that impact water quality. 33 U.S.C. §1342(p)(2)(E); 40 CFR 

122.26(a)(9)(i)(C), (D). 

Similar to the scenario described in the previous question, if a facility discharges 

storm water through an MS4 that is subject to NPDES requirements, there may be 

storm water control measures required by the MS4 operator that apply to the discharger. 

Question 4. How, if available, are State or local Governments authorized to limit 

runoff as described above? Provide examples of such authority. 

Response. Forty-five States administer NPDES programs approved by EPA under 

CWA section 402(b). Such programs must have legal authority to implement provisions set forth in EPA’s regulations. See 40 C.F.R. §123.25. (States are not precluded from omitting or modifying provisions in EPA’s regulations if they impose 

more stringent requirements.) Among the provisions in EPA’s regulations that 

States must have legal authority to implement in an approved NPDES program is 

40 C.F.R. §122.26 Storm water discharges. See 40 C.F.R. §123.25(a)(9). 

States with approved programs, like EPA, have authority to require an NPDES 

permit where storm water controls are needed based on wasteload allocations that 

are part of a total maximum daily load, or for discharges that contribute to a violation of a water quality standard, or that are a significant contributor of pollutants 

to waters of the United States. 33 U.S.C. §1342(p)(2)(E); 40 C.F.R. 

§122.26(a)(9)(i)(C), (D). Examples of the use of this designation authority include 

Connecticut’s designation of all storm water discharges directly related to retail, 

commercial, and/or office services whose facilities occupy five acres or more of contiguous impervious surface; and Vermont’s permit requirement for storm water discharges from existing and new development and redevelopment sites. 

Finally, EPA regulations require local Governments or other entities that operate 

large or medium MS4s to have adequate legal authority, under statute, ordinance 

or contract, to prohibit illicit discharges, control storm water discharges from industrial and other sources, carry out inspections, require compliance, and perform other 

functions. See 40 C.F.R. §122.26(d)(2)(i). Authority for controls implemented by 

small MS4 operators is similarly provided under State, tribal or local law. See, e.g., 

40 C.F.R. §122.34(b)(3)(ii)(B). 

RESPONSES BY BENJAMIN H. GRUMBLES TO ADDITIONAL QUESTIONS FROM

SENATOR MURKOWSKI

Question 1. Your testimony states that the EPA and corps are working on joint 

‘‘guidance’’ clarifying Clean Water Act jurisdiction. That’s an interesting term that 

suggests you are not moving forward on a formal rulemaking? Is that the case? And 

if so, why not proceed to rulemaking? Isn’t this matter important enough to warrant 

the added certainty that would create? 

Response. The Agencies are considering the need for rulemaking in light of the 

Rapanos decision. At this time, the Agencies recognize the importance and urgency 

of providing clarity to our field staff and the public to ensure that jurisdictional determinations, administrative enforcement actions, and other relevant agency actions 

are consistent with the Rapanos decision. Our immediate focus is on providing this 

clarity in a timely manner. 

Question 2. Do you agree that wetlands that are frozen for a majority of the year, 

and which are underlain by permafrost, may serve different ecological and 

hydrological functions from more traditional unfrozen wetlands? 

Response. While frozen wetlands have a very different mixture of plant life than 

other wetlands, according to the National Research Council (NRC), permafrost wetlands often perform the same functions as other wetlands. The NRC writes, ‘‘Furthermore, studies of the National Wetlands Working Group (1988) in Canada show 

that permafrost wetlands have the same functions as other kinds of wetlands. . . . 
63 

permafrost wetlands do not differ in their essential characteristics from other wetlands.’’ (National Research Council. 1995. Wetlands: Characteristics and Boundaries. Washington, DC: National Academy of Sciences, p. 152). The agencies have 

also recognized, however, that the specific circumstances that are present in Alaska 

are not found elsewhere in the United States and are working to ensure that implementation of the Federal wetlands program reflect these differences. 

Question 3. If the application of Federal permitting under the Clean Water Act 

is intended to control a contribution of pollutants to navigable waters, why should 

activities in a permafrost wetland where there can be no such contribution be under 

the same control? 

Response. While the functions performed by permafrost wetlands often are the 

same as other wetlands, the agencies do recognize that the circumstances in Alaska 

where permafrost wetlands are found, are different from those found elsewhere in 

the United States. The agencies are working to ensure that implementation of the 

Federal wetlands program in Alaska effectively reflects those circumstances. 

Question 4. Does it not make sense to regulate a particular parcel of land for the 

values it actually has, rather than the values that might be held by some other parcel of land in another location? 

Response. As discussed above, implementation of the CWA section 404 program 

in Alaska reflects circumstances found in the State. For example, section 404 program implementation in Alaska reflects that it may not be practicable to provide 

compensatory mitigation through wetlands restoration or creation in areas where 

there is a high proportion of land which is wetland. In cases where potential compensatory mitigation sites are not available due to abundance of wetlands in a region, and a lack of enhancement or restoration sites, compensatory mitigation is not 

required under the section 404(b)(1) Guidelines that guide permitting decisions. 

Some section 404 program adaptations have been made to ensure effective public 

participation by all Alaskan communities. For example, announcements of potential 

permit actions and other section 404 program activities are translated into Native 

Alaskan languages so as to be able to better engage them in the public process associated with section 404. 

STATEMENT OF JOHN C. CRUDEN, DEPUTY ASSISTANT ATTORNEY GENERAL, 

ENVIRONMENT AND NATURAL RESOURCES DIVISION, U.S. DEPARTMENT OF JUSTICE

INTRODUCTION

Chairman Chafee, Senator Clinton, and members of the subcommittee, thank you 

for inviting the Department of Justice to testify about a recent and important environmental case, Rapanos v. United States,—U.S.—, 126 S. Ct. 2208 (2006), in which 

the Supreme Court addressed the jurisdictional scope of the Clean Water Act (CWA) 

in two consolidated cases, Rapanos v. United States, 376 F.3d 629 (6th Cir. 2004) 

and Carabell v. United States Army Corps of Eng’rs, 391 F.3d 704 (6th Cir. 2004). 

I am pleased to be joined by Benjamin Grumbles, the Assistant Administrator for 

Water, U.S. Environmental Protection Agency, and John Paul Woodley, Jr., Assistant Secretary of the Army for Civil Works. They will provide an overview of national 

wetlands protection policy under the CWA as well as EPA and Corps of Engineers 

responsibilities while I will focus more on litigation by the Department of Justice. 

I am the Deputy Assistant Attorney General, Environment and Natural Resources 

Division (ENRD or the Division), U.S. Department of Justice. The Division is responsible for representing the United States in litigation involving environmental 

and natural resources statutes, and wetlands litigation under the CWA is a part of 

our responsibilities. We defend Federal agencies when their administrative actions 

are challenged, and we also bring enforcement cases against individuals or entities 

that violate environmental and natural resources statutes. The Division has a docket of well over 7,000 pending cases and matters, with cases in nearly every judicial 

district in the Nation. We litigate cases arising from more than 70 different environmental and natural resources statutes. 

In this testimony, I will first provide a brief overview of our CWA docket, in particular those cases involving wetlands. I will then outline the statutory and U.S. Supreme Court background for the Rapanos decision, the position of the United States 

in that litigation, and the Supreme Court holding. I will then turn to what actions 

the Department of Justice has taken since the issuance of the decision, the standard 

of law we believe is applicable on remand of those two cases, and several key issues 

that might arise from the decision. 

As this subcommittee knows, however, the position of the United States in litigation is expressed in briefs we file with the courts. Our legal position must be tied 
64 

1 The 1972 legislation extensively amended the Federal Water Pollution Control Act 

(FWPCA), which was originally enacted in 1948. Further amendments to the FWPCA, which 

were enacted in 1977, changed the popular name of the statute to the Clean Water Act. Pub. 

L. No. 95-217,91 Stat. 1566; 33 U.S.C. 1251 note. 

to the facts and take into account the precedent within the jurisdiction in which we 

are litigating. In addition, because we litigate cases on behalf of the United States, 

we coordinate with potentially affected Federal agencies before we file a brief. Accordingly, although I will describe to you our preliminary thinking about this important decision issued over a month ago, my testimony should not be used in litigation 

in any particular case. Instead, the position of the United States in any particular 

case will be articulated in the context of that case. 

AN OVERVIEW OF OUR CLEAN WATER ACT DOCKET

The Department of Justice’s primary role with regard to the CWA is to represent 

the Environmental Protection Agency (‘‘EPA’’), the Army Corps of Engineers 

(‘‘corps’’), and any other Federal Agency that might be involved in litigation that 

arises pursuant to the CWA. We frequently defend Federal agencies that are being 

sued in connection with the CWA. Such actions can take a variety of forms. For example, affected parties will sometimes bring an action against the corps when it 

makes a case-specific decision, such as the grant or denial of a CWA permit. Regulated entities, environmental interests, and public entities such as municipalities 

may also seek judicial review when the corps and EPA make broader policy decisions such as those embodied in a rulemaking. Parties may also sue EPA for failure 

to perform a non-discretionary duty under the CWA. Finally, Federal agencies can 

be sued for discharging pollutants into waters of the United States if they have not 

complied with the applicable requirements of the CWA. In ENRD, we have an Environmental Defense Section that specializes in defending the actions of Federal agencies, including EPA and the corps, when they are challenged in court in connection 

with the CWA. 

ENRD also brings actions to enforce the CWA. Three sections in ENRD handle 

CWA enforcement actions. Civil enforcement cases are generally handled by our Environmental Enforcement Section, except wetlands cases brought pursuant to CWA 

section 404, which are handled by our Environmental Defense Section or by U.S. 

Attorney’s Offices. Criminal enforcement of the CWA is handled by our Environmental Crimes Section, usually in conjunction with local U.S. Attorney’s Offices. 

CWA civil judicial enforcement actions generally begin with a referral or investigation from another Federal agency, whether it is EPA or the corps, regarding alleged violations of the CWA. Often by the time we receive a referral, the agency 

in question has exhausted all avenues for resolving the dispute administratively, 

and has carefully considered whether judicial enforcement is the appropriate course 

of action. Upon receiving the Agency’s recommendation, we conduct our own internal, independent inquiry and analysis to determine whether there is sufficient evidence to support the elements of the violation and whether the case is otherwise 

appropriate for judicial action. If we determine that judicial enforcement is warranted, we explore possibilities for achieving settlement of the alleged violations 

without litigation. 

The vast majority of environmental violations, including CWA-type violations, are 

addressed and resolved by State and local Governments. In the wetlands area, most 

Federal enforcement of the CWA occurs at the administrative level and is carried 

out by EPA and the corps, and does not involve the Department of Justice. In this 

regard, I commend the corps for implementing an administrative appeals process in 

2000. The process allows disputes over whether a site is subject to corps jurisdiction 

under the CWA (so-called ‘‘jurisdictional determinations’’) to be resolved before a 

matter gets to the point of potential litigation, which is when the Department of 

Justice would get involved. The Department also litigates cases regarding discharges into nonnavigable tributaries of navigable-in-fact waters. 

In sum, the Division, in conjunction with U.S. Attorney Offices across the nation, 

litigates CWA actions that involve the United States. The wetlands caseload is a 

portion of ENRD’s case responsibilities. On average, we handle about 10-15 new 

wetlands enforcement cases each year on behalf of the EPA or the corps. In addition, there have been a few criminal cases involving wetlands. 

STATUTORY AND CASE LAW CONTEXT FOR THE RAPANOS DECISION

Clean Water Act and Regulations 

Congress enacted the CWA in 1972 ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters’’ as provided in section 101(a).1
65 

2 For purposes of the Section 402 and 404 permitting programs, as discussed below, the current EPA and corps regulations implementing the CWA include substantively equivalent definitions of the term ‘‘waters of the United States.’’ The corps defines that term to include: (1) All 

waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the 

tide; (2) All interstate waters including interstate wetlands; (3) All other waters such as intrastate lakes, rivers, streams (including internlittent streams), mudflats, sandflats, wetlands, 

sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or 

destruction of which could affect interstate or foreign commerce. . . ;(4) All impoundment of 

waters otherwise defined as waters of the United States under the definition; (5) Tributaries 

of waters identified in paragraphs (a)(l) through (4) of this section; (6) The territorial seas; (7) 

Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in 

paragraphs (a)(l) through (6) of this section. 33 C.F.R. 328.3(a); see 40 C.F.R. 230.3(s) (EPA). 

The regulations define the term ‘‘wetlands’’ to mean ‘‘those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that 

under normal circumstances do support, a prevalence of vegetation typically adapted for life in 

saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar 

areas.’’ 33 C.F.R. 328.3(b). The term ‘‘adjacent’’ is defined to mean ‘‘bordering, contiguous, or 

neighboring,’’ and the regulations state that ‘‘[w]etlands separated from other waters of the 

United States by man-made dikes or bamers, natural river berms, beach dunes and the like are 

‘adjacent wetlands.’’’ 33 C.F.R. 328.3(c). 3 Congress established a mechanism under Section 404(g)(l) by which a State may assume 

responsibility for administration of the Section 404 program with respect to ‘‘the discharge of 

dredged or fill material into the navigable waters (other than those waters which are presently 

used, or are susceptible to use in their natural condition or by reasonable improvement as a 

means to transport interstate or foreign commerce . . . including wetlands adjacent thereto). . . .’’ If the EPA Administrator approves a proposed State program, the corps is directed 

under Section 404(h)(2)(A) to ‘‘suspend the issuance of permits . . . for activities with respect 

to which a permit may be issued pursuant to such State program. . . .’’ Under a State-administered program, EPA and the corps retain authority under Section 404(h)(l)(D)-(F) to forbid or 

impose conditions upon any proposed discharge permit. EPA also retains enforcement authority 

under Sections 404(n) and 309 to issue compliance orders and commence administrative, civil, 

and criminal actions to enforce the CWA. A similar State authorization program exists for the 

NPDES program under Section 402(b) of the CWA. 

One of the mechanisms adopted by Congress to achieve that purpose is a prohibition 

contained in section 301(a) on the discharge of any pollutant, including dredged or 

fill material, into ‘‘navigable waters’’ except pursuant to a permit issued in accordance with the Act. The CWA defines the term ‘‘discharge of a pollutant’’ in section 

502(12)(a) as ‘‘any addition of any pollutant to navigable waters from any point 

source . . . .’’ It defines the term ‘‘pollutant’’ in section 502(6) to mean, among other 

things, dredged spoil, rock, sand, and cellar dirt. The CWA provides in section 

502(7) that ‘‘[t]he term ‘navigable waters’ means the waters of the United States, 

including the territorial seas.’’ 2 While earlier versions of the 1972 legislation included the word ‘‘navigable’’ within that definitional provision, the Conference Committee deleted that word and expressed the intent to reject prior geographic limits 

on the scope of Federal water-protection measures. Compare S. Conf. Rep. No. 

1236,92d Cong., 2d Sess. 144 (1972), with H.R. Rep. No. 91 1,92 Cong., 2d Sess. 356 

(1972) (bill reported by the House Committee provided that ‘‘[t]he term ‘navigable 

waters’ means the navigable waters of the United States, including the territorial 

seas’’). 

The CWA establishes two complementary permitting programs through which appropriate Federal or State officials may authorize discharges of pollutants from 

point sources into the waters of the United States. Section 404(a) of the CWA authorizes the Secretary of the Army, acting through the corps, to issue a permit ‘‘for 

the discharge of dredged or fill material into the navigable waters at specified disposal sites.’’ Under Section 404(g), the authority to permit certain discharges of 

dredged or fill material may be assumed by State officials. Pursuant to Section 402 

of the CWA, the discharge of pollutants other than dredged or fill material (sewage, 

chemical waste, and biological materials) may be authorized by the EPA, or by a 

State with an approved program, under the National Pollutant Discharge Elimination System (NPDES) program.3

U.S. Supreme Court Backdrop for the Rapanos Decision 

In United States v. Riverside Bawiew Homes, Inc., 474 U.S. 121 (1985), and subsequently in Solid Waste Agency of Northern Cook County v. United States Army 

Corps of Eng’rs, 53 1 U.S. 159 (2001) (S WANCC), the Supreme Court addressed 

the proper construction of the CWA terms ‘‘navigable waters’’ and ‘‘the waters of the 

United States.’’ In Riverside Bawiew, the Court framed the question before it as 

‘‘whether the [CWA], together with certain regulations promulgated under its authority by the [corps], authorizes the corps to require landowners to obtain permits 

from the corps before discharging fill material into wetlands adjacent to navigable 
66 

4 The Supreme Court also granted certiorari on the question of whether such an interpretation of the CWA was constitutional. The United States argued that as applied to the wetlands 

filling activities under review, the CWA’s ban on unauthorized pollutant discharges was a permissible exercise of Congress’ power to regulate (a) the channels of interstate commerce and (b) 

activities that substantially affect interstate commerce. The Supreme Court did not reach this 

question in the Rapanos decision. 

bodies of water and their tributaries.’’ 474 U.S. at 123. The Court unanimously sustained the corps’ regulatory approach as a reasonable exercise of the authority conferred by the CWA. At the same time, however, the Court declined ‘‘to address the 

question of the authority of the corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water. . . . ‘‘Id. at 131-132 n.8. 

In SWANCC, the Supreme Court in 2001 faced an aspect of the question reserved 

in Riverside Bawiew, and it rejected the corps’ construction of the term ‘‘waters of 

the United States’’ as encompassing ‘‘isolated,’’ intrastate, nonnavigable ponds based 

solely on their use as habitat for migratory birds. 53 1 U.S. at 171-172. The Court 

explained that, if the use of isolated ponds by migratory birds were found by itself 

to be a sufficient basis for Federal regulatory jurisdiction under the CWA, the word 

‘‘navigable’’ in the statute would be rendered meaningless. Id. at 172. The Court also 

looked to the well-established doctrine that ‘‘[w]here an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result.’’ Id. A clear expression of Congressional 

intention, the Court opined, was particularly necessary ‘‘where the administrative 

interpretation alters the Federal-State framework by permitting Federal encroachment upon a traditional State power.’’ Id. at 173. The Court found no clear indication of Congressional intention in this context. Following the SWANCC decision, a 

significant amount of litigation ensued, ultimately resulting in seven of eight Circuit 

Courts of AppeaI generally holding that the SWANCC decision applied to intrastate, 

non-navigable, isolated bodies of water, and did not affect jurisdiction over tributaries to navigable-in-fact waters or wetlands adjacent to such tributaries. See, eg., 

United States v. Johnson, 437 F.3d 157 (1st Cir. 2006); United States v. Deaton, 

332 F.3d 698 (4th Cir. 2003), cert. denied, 541 U.S. 972 (2004); United States v. 

Gerke Excavating, Inc., 412 F.3d 804 (7th Cir. 2005), petition for cert. manted and 

jud-pent vacated, 74 U.S.L.W. 3714 (U.S. June 26,2006) (No. 05–623); Headwaters, 

Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001); United States v. 

Hubenka, 438 F.3d 1026 (10th Cir. 2006), petition for cert. pending (U.S. May 17, 

2006 ) (No. 05–1 1337); Parker v. Scrap Metal Processors. Inc., 386 F.3d 993 (1 lth 

Cir. 2004). 

THE RAPANOS DECISION

Lower Court Decisions in Rapanos and Carabell 

In Rapanos, the Supreme Court addressed the jurisdictional scope of the CWA in 

two consolidated cases. The first case, Rapanos v. United States, involved a developer who, without a permit, filled 54 acres of wetlands adjacent to tributaries of 

navigable-in-fact water bodies. 376 F.3d 629 (6th Cir. 2004). The District Court 

found Federal jurisdiction over the wetlands because they were adjacent to ‘‘waters 

of the United States’’ and held petitioners civilly liable for CWA violations. The 

Sixth Circuit affirmed the District Court’s decision and found the wetlands within 

the scope of the CWA’s protections based on the wetlands’ hydrologic connections 

to tributaries of navigable-in-fact waters. 

The second case, Carabell v. United States Army Corps of Engineers, involved a 

permit applicant who was denied authorization to fill wetlands physically proximate 

to, but separated by a berm from, a tributary of a navigable-in-fact waterbody. 391 

F.3d 704 (6th Cir. 2004). The District Court found the wetlands to be within the 

scope of the CWA’s protections over the wetlands because they were adjacent to tributaries of navigable-in-fact waters. The Sixth Circuit affirmed the District Court on 

the basis that a ‘‘significant nexus’’ existed between the wetlands at issue and an 

adjacent nonnavigable tributary of navigable-in-fact waters. 

The Supreme Court granted certiorari, in part, on the question of whether jurisdiction under the CWA extends to wetlands that are adjacent to tributaries of navigable-in-fact waters.4

The United States argued before the Supreme Court that the corps and EPA acted 

reasonably in defining the CWA term ‘‘the waters of the United States’’ to include 

wetlands adjacent to tributaries of navigable-in-fact waters. Petitioners, on the other 

hand, argued that only wetlands adjacent to (abutting) traditional navigable waters 

are included within the statutory term (Rapanos); and that the CWA does not ex-
67 

tend to wetlands that are hydrologically isolated from any navigable water of the 

United States (Carabell). 

The Supreme Court Decision in Rapanos 

The judgment of the Supreme Court was to vacate and remand both cases for further proceedings. In summary, four Justices, in a plurality opinion authored by Justice Scalia, concluded that ‘‘the lower courts should determine . . . whether the 

ditches or drains near each wetland are ’waters’ in the ordinary sense of containing 

a relatively permanent flow; and (if they are) whether the wetlands in question are 

‘adjacent’ to these ‘waters’ in the sense of possessing a continuous surface connection 

that creates the boundary-drawing problem we addressed in Riverside Bayview.’’ 

126 S. Ct. at 2235. Justice Kennedy, who concurred in the judgment of the Court, 

established a different test, concluding that the cases should be vacated and remanded to determine ‘‘whether the specific wetlands at issue possess a significant 

nexus with navigable waters.’’ Id, at 2252. Chief Justice Roberts joined in the plurality opinion and also wrote a concurring opinion. Justice Stevens, in a dissenting 

opinion in which Justices Souter, Ginsburg, and Breyer joined, would have affirmed 

the decisions by the lower courts. Justice Breyer also wrote a separate dissenting 

opinion. 

The plurality opinion, authored by Justice Scalia, first concluded that the petitioner’s argument that the terms ‘‘navigable waters’’ and ‘‘waters of the United 

States’’ are limited to waters that are navigable in fact ‘‘cannot be applied wholesale 

to the CWA.’’ Id. at 2220. Citing CWA Section 502(7) and 404(g)(l), Justice Scalia 

opined that ‘‘the Act’s term ‘navigable waters’ includes something more than traditional navigable waters.’’ Id. Then, after reviewing the statutory language, the plurality concluded that ‘‘waters of the United States,’’ includes ‘‘relatively permanent, 

standing or flowing bodies of water. The definition refers to water as found in 

‘streams,’ ‘oceans,’ ‘rivers,’ ‘lakes,’ and ‘bodies’ of water ‘forming geographical features.’’’ Id. at 2221 (citation omitted). The phrase does not include ‘‘ordinarily dry 

channels through which water occasionally or intermittently flows.’’ Id. The corps’ 

interpretation of the term ‘‘the waters of the United States,’’ the plurality concluded, 

was not based on a permissible construction of the statute. 

Justice Scalia elaborated on this test in footnotes. He stated: 

By describing ‘‘waters’’ as ‘‘relatively permanent,’’ we do not necessarily exclude 

streams, rivers, or lakes that might dry up in extraordinary circumstances, such as 

drought. We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months-such as 

the 290-day, continuously flowing stream postulated by Justice Stevens’ dissent. . . . 

It suffices for present purposes that channels containing permanent flow are 

plainly within the definition, and that the dissent’s ‘‘intermittent’’ and ‘‘ephemeral’’ 

streams . . . that is, streams whose flow is ‘‘[c]oming and going at intervals 

. . . [b]roken, fitful,’’ . . . or ‘‘existing only, or no longer than, a day; diurnal short 

lived’’ . . . are not. –Id. at 2221 n.5 (citations omitted). 

The plurality then examined the factor of the adjacency of the wetlands under review to ‘‘waters of United States.’’ Justice Scalia concluded that ‘‘only those wetlands with a continuous surface connection to bodies that are ‘waters of the United 

States’ in their own right, so that there is no clear demarcation between ‘waters’ 

and wetlands, are ‘adjacent to’ such waters and covered by the Act. Wetlands with 

only an intermittent, physically remote hydrologic connection to ‘waters of the 

United States’ do not implicate the boundary-drawing problem of Riverside Bayview, 

and thus lack the necessary connection to covered waters that we described as a 

‘significant nexus’ in SWANCC.’’ Id. at 2226 (citation omitted and emphasis in original). 

In response to arguments that this opinion would ‘‘frustrate enforcement against 

traditional water polluters [u]nder CWA sections 301 and 4021 . . .’’ the plurality 

concluded: ‘‘That is not so.’’ Id. at 2227. The plurality went on to say that ’’from the 

time of the CWA’s enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates 

[section 3011, even if the pollutants discharged from a point source do not emit ‘directly into’ covered waters, but pass ‘through conveyances’ in between.’’ Id. (citation 

omitted). 

Justice Kennedy did not join the plurality’s opinion, but instead authored an opinion consuming in the judgment. He agreed with the plurality that the statutory 

term ‘‘waters of the United States’’ extended beyond water bodies that are navigable-in-fact. Justice Kennedy, however, concluded that wetlands are ‘‘waters of the 

United States’’ where ‘‘the wetlands, either alone or in combination with similarly 

situated lands in the region, significantly affect the chemical, physical, and biologi-
68 

cal integrity of other covered waters more readily understood as ‘navigable.’’’ Id. at 

2248. The concurrence by Justice Kennedy stated, in relevant part, that ‘‘[a]s applied to wetlands adjacent to navigable-in-fact waters, the corps’ conclusive standard 

for jurisdiction rests upon a reasonable inference of ecologic interconnection, and the 

assertion of jurisdiction for those wetlands is sustainable under the Act by showing 

adjacency alone.’’ Id. With respect to wetlands adjacent to nonnavigable tributaries, 

Justice Kennedy explained that: 

‘‘[a]bsent more specific regulations, . . . the corps must establish a significant 

nexus on a case-by-case basis[.]’’ Id. at 2249. 

Justice Kennedy did not agree with the plurality’s interpretation of ‘‘waters of the 

United States’’ and agreed with the dissent ‘‘that an intermittent flow can constitute 

a stream. . . . It follows that the corps can reasonably interpret the Act to cover 

the paths of such impermanent streams.’’ Id. at 2243 (citation omitted). 

In his concurring opinion, Chief Justice Roberts wrote that ’’[i]t is unfortunate 

that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U.S. 306, 325 . . . (2003) 

(discussing Marks v United States, 430 U.S. 188. . . (1977)).’’ 126 S. Ct. at 2236. 

The four dissenting Justices would have affirmed the lower courts’ opinions and 

upheld the corps’ exercise of jurisdiction in these cases as reasonable. Justice Stevens also concluded: ‘‘In these cases, however, while both the plurality and Justice 

Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the corps’ jurisdiction in both of 

these cases-and in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied-on remand each of the judgments should be reinstated if either of those tests is met.’’ Id. at 2265. 

DEPARTMENT OF JUSTICE RESPONSE TO THE RAPANOS DECISION

Following this decision, ENRD is taking steps to ensure that the legal positions 

already taken on behalf of the Federal Government in litigation are consistent with 

Rapanos, regardless of where a case arises or which agency is involved in a particular case. In addition to taking the necessary steps to ensure that our existing 

cases are consistent with Rapanos, we established a process that the positions we 

take in all Rapanos-related litigation going forward are internally consistent and appropriately coordinated within the Federal Government. We have and will continue 

to devote particular attention in our CWA cases to assure that there is a factually 

and legally sound basis, consistent with Rapanos, before asserting jurisdiction over 

the aquatic resources in question. 

The Division convened an internal group of experienced attorneys to begin assembling and reviewing cases which could be impacted by the decision. We also began 

coordinating with the responsible Federal agencies, who were conducting similar reviews, to discuss the ramifications of the decision. Subsequently, the United States 

has sought extensions of time as necessary in filed cases; advised our attorneys nationwide to coordinate any post–Rapanos filings with our team of experienced attorneys so that our positions are accurate and consistent; and undertaken a detailed 

review of potentially affected cases. By letter of July 14, 2006, Michael A. Battle, 

Director of the Executive Office for United States Attorneys, and Sue Ellen 

Wooldridge, Assistant Attorney General, Environment and Natural Resources Division, wrote to United States Attorneys concerning the procedure for coordination of 

any filing that may raise issues related to the Rapanos decision. 

Although we are moving carefully to ensure that the Federal agencies with programmatic responsibility over wetlands have adequate time to evaluate the case and 

advise the Department of Justice on implementing the decision, we have continued 

to take necessary steps to protect wetlands. For instance, we have finalized settlements that were being negotiated prior to Rapanos and where the parties still found 

settlement to be desirable after the ruling. In one case, for instance, we recently 

lodged a consent decree that requires a developer to pay a $600,000 civil penalty 

and restore streams and wetlands filled, without a permit, associated with construction of a golf course and related facilities in the State of Georgia. In another case, 

the United States recently settled a matter involving the unpermitted harvesting of 

peat from rare and environmentally significant peat bogs in the State of Michigan. 

The defendant in that case is required to restore the majority of the bog affected 

by the peat mining and to donate more than 2,800 acres of peatland to the State. 

We have also filed pleadings in pending cases advising courts of the opinion. In 

one case, the United States has opposed criminal defendants’ efforts to use Rapanos 
69 

to suppress evidence obtained in a search warrant. In that case, the defendants 

argue that the Rapanos case reaches the actions of the defendants, who piped raw, 

untreated human excrement directly into a creek that flows into the St. John’s River 

in Florida. 

We are just beginning to see courts apply the Rapanos decision. In another case, 

within days of the Supreme Court’s decision, a District Court in Texas granted an 

oil pipeline company’s motion for summary judgment, holding that the United 

States had not established that the discharge of at least 3,000 barrels of oil from 

a pipeline into an intermittent creek reached navigable-in-fact waters of the United 

States. The deadline for appeal of that decision has not yet passed. 

In Rapanos, no opinion commanded a majority of the Court. In his concerning 

opinion, as we have noted, Chief Judge Roberts observed that lower courts ‘‘will now 

have to feel their way on a case-by-case basis.’’ 126 S. Ct. at 2236. He did, however, 

provide guidance, saying that ‘‘[t]his situation is certainly not unprecedented. See 

Grutter v. Bollinger, 539 U.S. 306,325 . . . (2003) (discussing Marks v United 

States, 430 U.S. 188 . . . (1977)).’’ Id, Since Rapanos was decided, the Supreme 

Court has examined another fragmented decision in the Texas redistricting case, 

Leame of United Latin American Citizens v. Perry, U.S. , 126 S. Ct. 2594,2607 

(2006). Based on all of these decisions, the Department of Justice has advised courts 

that it believes the applicable standard to determine if a wetland is governed by the 

CWA is whether either the Rapanos plurality’s or Justice Kennedy’s test is met in 

a particular fact situation. Based on this standard, the Department of Justice filed 

a new wetland enforcement case last week. This case involves alleged CWA Section 

404 and 402 (stormwater) violations during the construction of a senior housing development near Lynchburg, VA. 

Although ENRD is reviewing CWA cases to determine whether this opinion impacts what we previously advised various courts in which litigation is pending, 

Rapanos dealt primarily with the status of wetlands. In the plurality opinion, Justice Scalia stressed that the decision does not affect dischargers under sections 301 

and 402 of the CWA. He stated that any person clearly remains responsible for the 

‘‘addition of any pollutant to navigable waters,’’ and that includes a ‘‘pollutant that 

naturally washes downstream . . .’’ 126 S. Ct. at 2227 (citations omitted). 

I would like to mention another facet of our post-Rapanos activities: working cooperatively with the States as we have done for many years. In general, we have made 

great strides to improve Federal–State cooperation and coordination in environmental protection generally. When the SWANCC decision was issued, we worked 

closely with the States and hosted a national conference and training session on 

wetlands protection and enforcement. The Division anticipates continuing this close 

work with the States. Should this opinion result in some wetlands not being covered 

by the CWA, States clearly have the option-as they have done in the past-of enacting legislation that would provide such protection. 

CONCLUSION

In closing, I would like to assure the subcommittee that the Department of Justice 

takes seriously its obligation to protect public health and the environment and to 

enforce and defend the existing laws. The Rapanos decision is significant and the 

Federal agencies are diligently reviewing their cases and procedures to assure that 

we satisfy the newly announced standards. We will continue to review all pending 

and potential cases to determine whether the waters involved meet the standards 

articulated in the Rapanos decision. 

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

RESPONSES BY JOHN C. CRUDEN TO ADDITIONAL QUESTIONS FROM

SENATOR CHAFEE

Question 1. When courts are attempting to apply this complicated decision in future cases, do you believe they will apply the plurality test or the Kennedy test? 

Response. As I mentioned in my opening statement, no opinion commanded a majority of the Court in Rapanos. Five Justices agreed that the judgments of the Sixth 

Circuit in the two consolidated cases under review should be vacated and the cases 

remanded for further proceedings. All Members of the Court agreed that the term 

‘‘waters of the United States’’ encompasses some non-navigable tributaries and adjacent wetlands. Rapanos v. United States, U.S. , 126 S. Ct. 2208, 2220 (plurality 

opinion); id. at 2241 (Kennedy, J., consuming in the judgment); id. at 2255 (Stevens, 

J., dissenting). Four Justices interpreted the term as covering ‘‘relatively permanent, standing or continuously flowing bodies of water,’’ Id. at 2225 (plurality opinion), that are connected to traditional navigable waters, id. at 2226–27, as well as 
70 

wetlands with a continuous surface connection to such water bodies, id. at 2227. 

Justice Kennedy would have held that the term encompasses wetlands that ‘‘possess 

a ’significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.’’ Id. at 2236 (Kennedy, J., consuming in the judgment); see id. 

at 2248 (wetlands ‘‘possess the requisite nexus’’ if the wetlands ‘‘either alone or in 

combination with similarly situated lands in the region, significantly affect the 

chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable’). The four dissenting Justices, who would have affirmed the 

Court of Appeals’ application of the pertinent regulatory provisions, also concluded 

that the term ‘‘waters of the United States’’ encompasses, inter alia, all tributaries 

and wetlands that satisfy either the plurality’s standard or that of Justice Kennedy. 

Id. at 2265 (Stevens, J., dissenting). 

In post-Rapanos filings in litigation, the Department of Justice has asserted that 

Clean Water Act jurisdiction over a particular wetland or other water exists if-the 

plurality’s Justice Kennedy’s test is met. This position is supported by the Rapanos 

decision and other case law. In his concurrence, Chief Justice Roberts wrote that 

‘‘[i]t is unfortunate that no opinion commands a majority of the Court on precisely 

how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and 

regulated entities will now have to feel their way on a case-by-case basis.’’ Id. at 

2236. He further noted that ‘‘[t]his situation is certainly not unprecedented. See 

Grutter v. Bollinger, 539 U.S. 306, 325 . . . (2003) (discussing Mark v. United 

States, 430 U.S. 188 . . ‘‘In these cases, however, while both the plurality and Justice Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four 

Justices who have joined this opinion would uphold the U.S. Army Corps of Engineers’ (corps) jurisdiction in both of these cases—and in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied—on remand each of the 

judgments should be reinstated if either of those tests is met.’’ Id. at 2265. The Department’s position also reflects common sense. If the facts of a particular case satisfy the plurality test, this likely means that at least eight Justices would agree that 

Federal jurisdiction exists. Similarly, if the facts of a case meet the Kennedy test, 

this likely means that five Justices would agree that Federal jurisdiction is established. For further analysis of the Marks, Grutter, and other relevant cases, see the 

response to Senator Inhofe’s second question. 

Question 2. Row difficult will Justice Kennedy’s ‘‘significant nexus’’ test be to 

measure whether a wetland or tributary is covered by the Clean Water Act in future 

Department of Justice enforcement and litigation proceedings? 

Response. The answer to this question depends in large part on how the ‘‘significant nexus’’ test is interpreted and applied by U.S. Environmental Protection Agency (EPA), and the corps, as the expert regulatory agencies, and by the courts. To 

date, there have been very few lower court decisions addressing the issue. As noted 

during the August 1 hearing, EPA and the corps are currently drafting guidance addressing how the tests articulated in the Rapanos case should be applied in determining Federal regulatory jurisdiction under the Clean Water Act. In describing the 

‘‘significant nexus’’ test, Justice Kennedy points in his opinion to a number of factors 

which regulatory agencies are accustomed to measuring in aquatic environments to 

show that wetlands ‘‘significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as a ‘navigable.’’’ 126 S. Ct. 

at 2248. I am confident we will be able to demonstrate adequate evidence of the jurisdictional status of wetlands and other waters in the future. 

Question 3. Why do you believe the Supreme Court issued such a convoluted judgment in this case? Where will the lower courts now head in terms of the 6th Circuit 

remand, as well as other Circuits on similar Clean Water Act cases? 

Response. Rapanos and Carabell are complex cases that raised important issues 

of statutory interpretation. While the Supreme Court decision does not have a majority position, we will work diligently to protect jurisdictional wetlands nationally 

consistent with the decision. 

With regard to the status of the two Sixth Circuit cases, on August 2, 2006, the 

United States Court of Appeals for the Sixth Circuit issued an order remanding 

United States v. Rapanos, No. 03-1489, to the United States District Court for the 

Eastern District of Michigan for further proceedings consistent with the ruling of 

the Supreme Court. On August 1, 2006, the United States filed a motion in the 

Sixth Circuit in Carabell v. United States Army Corps of Engineers, No. 03-1700, 

seeking a remand to the District Court with instructions to remand the case to the 

corps for application of the appropriate legal standard and further factual development. Because the Carabell case involves a challenge to the corps’ assertion of jurisdiction over wetlands, for which a permit was denied, judicial review of the action 
71 

is governed by the Administrative Procedure Act (‘‘APA’’), and the court reviews an 

administrative record compiled by the agency in making its determination. In this 

regard, the Carabell case is different from the Rapanos case, which is a civil enforcement action brought by the United States seeking injunctive relief and the imposition of civil penalties. Hence, Rapanos does not involve judicial review of an Agency 

action under the MA and the record is developed in the District Court in such actions. For that reason, the Government did not seek a remand to the Agency in 

Rapanos but only a remand to the District Court. The Sixth Circuit has not yet 

ruled on the Government’s motion for a remand in the Carabell case. 

Question 4. Has the Department had to deal with criminal defendants attempting 

to use the Rapanos case as a defense yet? 

Response. Yes. As I mentioned during the hearing, some criminal defendants have 

sought the dismissal of Clean Water Act charges against them, arguing that the 

United States no longer has jurisdiction over their conduct. United States v. Evans, 

No. 3:05-cr-159-J-32HTS (M.D. Fla.). The United States opposed this interpretation; 

and on August 2, 2006, the District Court denied the motion. That opinion is available at 2006 WL 2221629 (filed Aug. 2, 2006). Other defendants have sought reversal of their convictions after lengthy trials, based on the jurisdictional discussions 

in the Rapanos opinions. United States v. Moses, No. 06–30379 (9th Cir.); United 

States v. Cooper, No. 05–4956 (4th Cir.). 

Question 5. Will Rapanos negatively impact the ability of the Department to pursue an action against the common polluter who may, for example, throw a chemical 

into streams? 

Response. While some defendants in enforcement actions brought pursuant to sections 301 and 402 of the Clean Water Act may assert that they are entitled to defenses based on Rapanos, we will vigorously oppose such assertions. We do not believe that those defenses should ultimately prevail. See, e.g., United States v. 

Evans, No. 3:05-cr-159-J-32HTS, 2006 WL 2221629 (M.D. Fla. Aug. 2, 2006). The 

Rapanos plurality agrees. In response to arguments that the Rapanos decision 

would ‘‘frustrate enforcement against traditional water polluters [under Clean 

Water Act sections 301 and 4021 . . .,’’ Justice Scalia concluded: ‘‘That is not so.’’ 

Id. at 2227. Justice Scalia went on to say that ‘‘from the time of the CWA’s enactment, lower courts have held that the discharge into intermittent channels of any 

pollutant that naturally washes downstream likely violates [section 3011, even if the 

pollutants discharged from a point source do not emit ‘directly into’ covered waters, 

but pass ‘through conveyances’ in between.’’ Id. (citation omitted). 

Question 6. What is the role of States in protecting waters not addressed by the 

Federal Clean Water Act? On a State-by-State basis, are there equivalent protections for intrastate, isolated wetlands and intermittent and ephemeral streams? 

Response. States have the authority to regulate waters that are not addressed 

under the Clean Water Act. Section 510 of the Clean Water Act provides: ‘‘Except 

as expressly provided in this chapter, nothing in this chapter shall. . . be construed as impairing or in any manner affecting any right or jurisdiction of the 

States with respect to the waters (including boundary waters) of such States.’’ Following Solid Waste Agency of Northern Cook County v. United States Army Corps 

of Eng’rs, 531 U.S. 159 (2001) (SWANCC), some States enacted legislation specifically designed to protect isolated wetlands; and some States had expansive authority to regulate such wetlands before the SWANCC decision on which they could rely. 

The Department understands that some States regulate isolated wetlands and intermittent and ephemeral streams, but protections vary from State to State, and some 

States have no provisions for the protection of these waters beyond the Federal 

Clean Water Act. Because of the States’ important and independent authority, we 

will continue to work with the Association of State Wetland Managers and others 

to support State efforts. 

RESPONSES BY JOHN C. CRUDEN TO ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question 1. You testified ‘‘In SWANCC, however, the Supreme Court held that 

isolated non-navigable intrastate waters did not become waters of the United 

States.’’ Given the Court’s affirmative statement that these areas are not waters of 

the United States, how can the Government continue to regulate ephemeral washes 

and other seasonal flows that do not have a connection to an adjacent waterbody? 

Response. In Solid Waste Agency of Northern Cook County v. United States Army 

Corps of Eng’rs, 531 U.S. 159 (2001) (SWANCC), the Supreme Court held that use 

of non-navigable, isolated, intrastate waters as habitat by migratory birds was not 
72 

by itself a sufficient basis for the exercise of Federal regulatory jurisdiction under 

the Clean Water Act. Id. at 166-74. The Supreme Court did not rule on the validity 

of other grounds for asserting jurisdiction over such waters, or invalidate the current Federal regulations defining ‘‘waters of the United States’’ (33 C.F.R. 328.3(a); 

see also 40 C.F.R. 230.3(s)), nor did SWANCC address tributaries that may ultimately connect to traditional navigable waters. 

With regard to the question of Clean Water Act regulation of ephemeral or seasonal waters following the Rapanos decision, the Department of Justice defers to 

EPA and the corps as the expert regulatory agencies to identify types of waters that 

meet the plurality’s test or Justice Kennedy’s ‘‘significant nexus’’ test. As noted during the August 1 hearing, EPA and the corps are currently drafting guidance addressing how the tests that were articulated in the various opinions in the Rapanos 

case should be applied in determining Federal regulatory jurisdiction under the 

Clean Water Act. 

I note that Rapanos involved two consolidated cases in which the Clean Water Act 

had been applied to pollutant discharges into wetlands adjacent to non-navigable 

tributaries of traditional navigable waters, and the Supreme Court decided only the 

question of whether the Sixth Circuit properly determined those wetlands to be 

‘‘waters of the United States’’ under the Clean Water Act. As we discussed during 

the hearing, the Department of Justice has asserted that Clean Water Act jurisdiction over a particular wetland or other water exists if the plurality’s Justice Kennedy’s test is met. 

In the plurality, Justice Scalia concluded that ‘‘the lower courts should 

determine . . . whether the ditches or drains near each wetland are ‘waters’ in the 

ordinary sense of containing a relatively permanent flow; and (if they are) whether 

the wetlands in question are ‘adjacent’ to these ‘waters’ in the sense of possessing 

a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview.’’ 126 S. Ct. at 2235. The plurality opinion concluded 

that the term ‘‘waters of the United States’’ ‘‘does not include channels through 

which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.’’ Id. at 2225. In footnote five of his opinion, however, Justice Scalia stated: ‘‘By describing ‘waters’ as ‘relatively permanent,’ we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought. We also do not necessarily exclude seasonal rivers, 

which contain continuous flow during some months of the year but no flow during 

dry months. . . .’’ Id. at 2221. 

Justice Kennedy concluded that the Rapanos and Carabell cases should be vacated and remanded to determine ‘‘whether the specific wetlands at issue possess 

a significant nexus with navigable waters.’’ Id. at 2252. He recognized the significance of some ‘‘irregular flows’’ for ‘‘a statute concerned with downstream water 

quality.’’ Id. at 2242. Justice Kennedy agreed with those Justices joining Justice Stevens’ dissenting opinion that ‘‘the corps can reasonably interpret the Act to cover 

the paths of such impermanent streams.’’ Id. at 2243; see id. at 2260–62. 

Question 2. In response to one of my earlier questions, you stated ‘‘And what the 

Supreme Court said in Marks is . . . the narrowest position or maybe the one that 

has the greatest commonality is the one that would control.’’ To quote from the case, 

‘‘[w]hen a fragmented Court decides a case and no single rationale explaining the 

result enjoys the assent of five Justices, the holding of the Court may be viewed 

as that position taken by those Members who concurred in the judgments on the 

narrowest grounds.’’ (Marks v. U.S. 430 U.S. 188 (1977)). The precedent established 

by Marks then is not that the narrowest position or the one with the greatest commonality holds. It is that the narrowest position of those who concurred in the result 

of the case and in Rapanos, that is those who concurred in the remand of the case. 

In particular, both Kennedy and the plurality held that neither hydrological connection nor the ordinary high water mark are sufficient to establish jurisdiction. 

Do you agree therefore that the only appropriate position for the Administration 

to take as it moves forward is that the holding is the overlap between Kennedy and 

the plurality which would limit Federal jurisdiction? 

Response. No. As I stated during the hearing, the position of the Department of 

Justice is that wetlands jurisdiction can be satisfied under the Rapanos decision by 

meeting either the plurality’s test or Justice Kennedy’s test. Further, there isn’t any 

real overlap between the plurality and Kennedy opinions. As the Solicitor General 

recently advised the Supreme Court: ‘‘Neither of those grounds for decision is inherently narrower than the other, thus making it logically impossible to identify a consensus narrowest position among the views of the Justices who concurred in the 

judgment.’’ Brief of the United States in the U.S. Supreme Court in Opposition to 

the Petition for a Writ of Certiorari at 13 n.4, Hubenka v. United States, No. 05– 

1337 (U.S. filed August 7, 2006) (U.S. Hubenka brief). 
73 

To conclude that the Marks decision compels finding and applying an overlap between the plurality and Kennedy opinions is also a misreading of both the Marks 

decision and the other decision cited by Chief Justice Roberts in his concurring opinion in Rapanos, Btter v. Bollinger, 539 U.S. 306 (2003). In Marks, interpreting a 

prior Supreme Court decision on obscenity, the Supreme Court relied on an earlier 

decision, Memoirs v. Massachusetts, 383 U.S. 413 (1966), and held that ‘‘[t]he view 

of the Memoirs plurality therefore constituted the holding of the Court and provided 

the governing standards.’’ 430 U.S. at 194. In Grutter, again faced with interpreting 

a Supreme Court decision in which there was no majority, the Court endorsed the 

opinion of a single Justice who had concurred in the outcome of the original decision. 539 U.S. at 323-25. 

Recently, the Solicitor General advised the Supreme Court of the position of the 

United States concerning the application of Marks to the Rapanos case. Brief of the 

United States in Opposition to the Petition for a Writ of Certiorari in Hubenka v. 

United States, as noted above. The following is an extract from the U.S. Hubenka 

brief at 12-14 (footnote omitted): 

In some fractured decisions, the narrowest rationale adopted by one or more Justices who concur in the judgment may be the only controlling principle on which 

a majority of the Court’s Members agree. In that situation, application of the rule 

announced in Marks provides a sensible approach to determining the controlling 

legal principles of the case. But in Rapanos, as in some other instances, no opinion 

for the Court exists and neither the plurality nor the concurring opinion is in any 

sense a ‘‘lesser included’’ version of the other. In that instance, the principles on 

which a majority of the Court agreed may be illuminated only by consideration of 

the dissenting Justices’ views. The dissenting opinions, by emphasizing controlling 

legal principles on which a majority of the Court agrees, may thereby contribute to 

an understanding of the law created by the case. And once those principles have 

been identified, sound legal and practical reasons justify a rule that a lower Federal 

court should adhere to the view of the law that a majority of this Court has unambiguously embraced. See Waters v. Churchill, 511 U.S. 661, 685 (1994) (Souter, J., 

concurring)(analyzing the points of agreement between plurality, concurring, and 

dissenting opinions to identify the legal ‘‘test that lower courts should apply,’’ under 

Marks, as the holding of the Court); cf. League of United Latin American Citizens 

v. w, 126 S. Ct. 2594, 2607 (2006)(analyzing concurring and dissenting opinions in 

a prior case to identify a legal conclusion of a majority of the Court); Alexander v. 

Sandoval, 532 U.S. 275,281–282 (2001)(same). 

Consideration of the dissenting Justices’ views is consistent with the underlying 

purpose of the specific rule announced in Marks, because it enables lower courts to 

discern the governing rule of law that emerges from a fractured decision of the 

Court. Cf. Rapanos, 126 S. Ct. at 2236 (Roberts, C.J., concerning) (noting the need 

to look to Marks in view of the absence of an opinion commanding a majority of 

the Court). And the application of that approach here clearly supports finding the 

existence of Federal regulatory jurisdiction whenever the legal standard of the plurality or of Justice Kennedy’s concurrence is satisfied, since a majority of the Court’s 

Members would find jurisdiction in either of those instances. See id. at 2265 (Stevens, J., dissenting). Accordingly, in light of the fact that at least eight Members 

of the Court would find jurisdiction on the undisputed facts of this case, further review is unwarranted. 

RESPONSES BY JOHN C. CRUDEN TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. In your testimony you state that the Department of Justice has advised courts that it believes the standard to determine if a wetland is governed by 

the Clean Water Act is if the plurality or Justice Kennedy’s test is met. Can you 

describe in a more concrete manner the types of waters that would be included in 

the jurisdiction of the Clean Water Act under this test? 

Response. The Department of Justice defers to EPA and the corps as the expert 

regulatory agencies to identify types of waters that meet the plurality’s test or Justice Kennedy’s ‘‘significant nexus’’ test. As noted during the August 1 hearing, EPA 

and the corps are currently drafting guidance addressing how the tests articulated 

in the Rapanos case should be applied in determining Federal regulatory jurisdiction under the Clean Water Act. 

In several filings, the United States, following coordination with the regulatory 

agencies, has advised courts that the facts of the particular case would satisfy the 

tests in Rapanos. 
74 

• Brief of the United States in the U.S. Supreme Court in opposition to the Petition for a Writ of Certiorari, Hubenka v. United States, No. 05-11337 (filed August 

7, 2006)(plurality test); • Letter of the United States to the 9th Circuit Court of Appeals, Baccarat Fremont Developers v. U.S. Army Corps of Eng’rs, No. 03-16586 (filed July 31, 

2006)(Kennedy test); • Brief of the United States to the District Court, United States v. Fabian, No. 

2:02CV495RL (N.D. Ind. filed August 17, 2006)(Kennedy test). 

Question 2. In your testimony, you mentioned the Texas redistricting case, League 

of United Latin American Citizens v. Perry. Can you elaborate on how the Supreme 

Court’s findings in the case impact your interpretation of this decision? 

Response. Please see the response to Senator Inhofe’s second question, which discusses the relevance of League of United Latin American Citizens v. Perry and 

other cases to interpretation of fractured decisions of the Supreme Court. 

Question 3. As the Justice Department noted in its brief Supreme Court, ‘‘effective 

regulation of the traditional navigable waters would hardly be possible if pollution 

of tributaries fell outside the jurisdiction of those responsible for maintaining water 

quality down stream.’’ Can you explain how the Justice Department believes that 

this common-sence principle can be implemented in the wake of this decision? 

Response. As discussed above, all Members of the Supreme Court agreed that the 

term ‘‘waters of the United States’’ encompasses some non-navigable tributaries and 

adjacent wetlands. 126 S. Ct. at 2220 (plurality opinion); id. at 2241 (Kennedy, J., 

concurring in the judgment); id. at 2255 (Stevens, J., dissenting). The extent to 

which the Federal Government can protect the water quality of navigable-in-fact 

waters by regulating discharges of pollution to their non-navigable tributaries will 

depend to a large extent on how the Rapanos decision is interpreted and implemented by EPA, the corps, and the lower courts. 

Question 4. Does the Justice Department anticipate that the Rapanos-Carabell decision and adjacent wetlands, and do you anticipate that any changes will be limited 

within the wetlands program? 

Response. The Department of Justice anticipates that at least initially it will face 

increased challenges to agency action under the Clean Water Act based on the 

Rapanos decision. That is to be expected with a complex decision in which there is 

no majority opinion and five separate opinions. A significant amount of litigation occurred after the Supreme Court’s decision in Solid Waste Agency of Northern Cook 

County v. United States Army Corps of Eng’rs, 531 U.S. 159 (1991), resulting in 

more than 35 decisions in District Courts and Courts of Appeal. The United States 

may also face challenges to the status of waters under various Clean Water Act programs based on the tests articulated in Rapanos. Although Rapanos involved only 

section 404, the Clean Water Act has one definition of ‘‘waters of the United States’’ 

for purposes of various programs, including dredge and fill (section 404), the National Pollutant Discharge Elimination System (NPDES) (section 402), oil spill prevention and liability (section 31 l), and water quality standards (section 303). 

Question 5. How many cases already in the lower courts are going to be affected 

by this decision? 

Response. While we do not know how often or when defendants or parties to litigation will raise the Rapanos case, the United States has already filed pleadings 

interpreting Rapanos in some cases, including those cited in response to your first 

question, and we expect more in the future. As described in my written hearing 

statement, in addition to taking the necessary steps to ensure that our existing 

cases are consistent with Rapanos, we have established a process to ensure that the 

positions we take in all Rapanos-related litigation going forward are internally consistent and appropriately coordinated within the Federal Government. The Division 

convened an internal group of experienced attorneys to begin assembling and reviewing cases which could be impacted by the decision. We also began coordinating 

with the responsible Federal agencies, who were conducting similar reviews, to discuss the ramifications of the decision. Subsequently, the United States has sought 

extensions of time as necessary in filed cases; advised our attorneys nationwide to 

coordinate any post Rapanos filings with our team of experienced attorneys so that 

our positions are accurate and consistent; and undertaken a detailed review of potentially affected cases. By letter of July 14, 2006, Michael A. Battle, Director of the 

Executive Office for United States Attorneys, and Sue Ellen Wooldridge, Assistant 

Attorney General, Environment and Natural Resources Division, wrote to United 

States Attorneys concerning the procedure for coordination of any filing that may 

raise issues related to the Rapanos decision. 

Question 6. The first district court decision to apply Rapanos-Carabell is, I believe, 

an oil spill case in Texas that seemed to dismiss Justice’s Kennedy’s ‘‘significant 
75 

nexus’’ test and focus instead on Justice Scalia’s plurality opinion. In this case, the 

court ruled that EPA lacks authority under the Clean Water Act to enforce the law 

against an oil company that spilled 126,000 gallons of oil into a tributary stream 

that was dry part of the year and several miles from the nearest navigable water. 

What is your opinion of this case, and what implications does it have for other Clean 

Water Act programs? 

Response. The Department of Justice does not believe that the interpretation set 

forth in the District Court’s opinion is correct, but because this case has not yet 

been concluded, it would be inappropriate to comment further now. 

Question 7. Would it make it easier for the Justice Department to defend agency 

decisions to protect streams, tributaries, wetlands and other ‘‘waters of the United 

States’’ if Congress were to pass legislation reaffirming the historic reach of the 

Clean Water Act? 

Response. The Administration has not been requested to provide, and has not developed, a position on any currently pending bill addressing ‘‘waters of the United 

States.’’ When such a request is formally made to the Administration, the Department of Justice typically participates, along with other affected Executive Agencies, 

in the development of a single Administration position on the bill. Of course, any 

proposed legislation drafted before the Rapanos decision came out must now be reevaluated in light of that decision. 

Question 8. During the hearing, Mr. Kisling states that he believes the commonalities between the plurality decision and Justice Kennedy’s decision should determine 

jurisdiction of the Clean Water Act. Can you comment on this interpretation? 

Response. I do not agree. Please see the response to Senator Inhofe’s second question. 

RESPONSES BY JOHN C. CRUDEN TO ADDITIONAL QUESTIONS FROM

SENATOR BOND

Question 1. Provide and describe, if available, the statutory, regulatory or case 

law authority for Federal regulation of runoff. 

Response. Assistant Administrator Grumbles will respond to this question, which 

was also posed to him. 

Question 2. How, if available, is the Federal Government authorized to limit actions creating runoff where no runoff existed before? Example scenario: construction 

of a parking lot which has the effect of creating runoff. Please provide examples and 

descriptions of the Federal statutory and regulatory authority that would be used, 

examples of any applicable Federal guidance, determinations or case law, and any 

permitting process required to undertake the action. 

Response. Assistant Administrator Grumbles will respond to this question, which 

was also posed to him. 

Question 3. How, if available, is the Federal Government authorized to limit actions allowing runoff where the potential runoff is currently blocked? Example scenario: removal or compromising of a physical barrier, such as a berm, adjacent to 

a parking lot, thereby allowing runoff from the parking lot. Please provide examples 

and descriptions of the Federal statutory and regulatory authority that would be 

used, examples of any applicable Federal guidance, determinations or case law, and 

any permitting process required to undertake the action. 

Response. Assistant Administrator Grumbles will respond to this question, which 

was also posed to him. 

Question 4. How, if available, are State or local Governments authorized to limit 

runoff as described above? Provide examples of such authority. 

Response. Assistant Administrator Grumbles will respond to this question, which 

was also posed to him. 

RESPONSE BY JOHN C. CRUDEN TO AN ADDITIONAL QUESTION FROM

SENATOR MURKOWSKI

Question 1. You indicated that the Department of Justice is taking steps to ensure 

its internal and external legal positions are consistent and coordinated in the context of the recent Supreme court ruling. What is Justice’s view on the merits of rulemaking versus the ‘‘guidance’’ described by your colleagues? Would Justice support 

or oppose a rulemaking effort, and why? 
76 

1See, e.g., The Ducks Stop Here? The Environmental Challenge to Federalism, 9 SUPREME 

COURT ECONOMIC REVIEW 205 (2001); Swamp Rules: The End of Federal Wetlands Regulation? REGULATION, Vol. 22, No. 2 (1999); Wetlands, Waterfowl, and the Menace of Mr. Wilson: 

Commerce Clause Jurisprudence and the Limits of Federal Wetlands Regulation, 29 ENVIRONMENTAL LAW 1 (1999). See also Jurisdictional Mismatch in Environmental Federalism, 14 

NYU ENVIRONMENTAL LAW JOURNAL 130 (2005); Judicial Federalism and the Future of 

Federal Environmental Regulation, 90 IOWA LAW REVIEW 377 (2005); When Is Two A Crowd? 

The Impact of Federal Action on State Environmental Regulation, HARVARD ENVIRONMENTAL LAW REVIEW (2006)(forthcoming). 

Response. As Assistant Administrator Grumbles stated during the August 1 hearing, rulemaking is one among several actions that the Administration is considering 

in response to the Rapanos decision. 

Rulemaking takes time-certainly well over a year to develop a final rule, in part, 

because of the important public notice and comment provisions called for under the 

Administrative Procedure Act. Agency guidance, which is not binding, can be developed and disseminated quickly. Guidance can assist regulators, the regulated community, and the public to understand and consistently apply statutes, regulations, 

and applicable case law. Guidance can help ensure that Clean Water Act jurisdictional determinations, administrative enforcement actions, and other agency actions 

are consistent with the Rapanos decision. Guidance does not substitute for statutory 

or regulatory requirements, but can provide timely implementation to assist the 

public. As noted during the August 1 hearing, EPA and the corps are currently 

drafting guidance related to the Rapanos decision. The Department believes such 

guidance could be extremely useful in implementing the Rapanos decision. 

STATEMENT OF JONATHAN H. ADLER, PROFESSOR OF LAW, CO-DIRECTOR, CENTER FOR

BUSINESS LAW AND REGULATION, CASE WESTERN RESERVE UNIVERSITY SCHOOL OF

LAW

Thank you, Mr. Chairman and members of this subcommittee, for the invitation 

to testify on the Supreme Court’s decision in Rapanos v. United States and its implications for wetland conservation. My name is Jonathan H. Adler, and I am a Professor of Law and co-director of the Center for Business Law and Regulation at the 

Case Western Reserve University School of Law, where I teach several courses in 

environmental law and constitutional law. 

For the past 15 years I have researched and analyzed Federal regulatory policies, 

with a particular focus on the intersection of federalism and environmental protection. Substantial portions of my research have focused on wetland conservation programs, including Federal regulation of wetlands under Section 404 of the Clean 

Water Act and the proper role of Federal regulation in conservation policy. This research has led to numerous academic articles and book chapters on the subject, including articles in Environmental Law, the Supreme Court Economic Review, and 

Regulation.1 The issue of wetland conservation is also of some personal interest to 

me. Our backyard in Hudson, Ohio extends into wetlands adjoining a conservation 

area, and I am committed to outdoor recreational activities, including hunting and 

fishing, that rely upon the ecosystem services that wetlands provide. Thus, I appreciate the opportunity to share my views with the committee today. 

Rapanos v. United States, 126 S.Ct. 2208 (2006), is only the latest chapter in the 

effort to define the meaning of ‘‘waters of the United States,’’ and the scope of Federal regulatory jurisdiction, under the Clean Water Act (CWA). Although no single 

opinion commanded a majority of the justices, the Court did provide a discernible 

holding: The CWA only extends to those waters and wetlands that have a ‘‘significant nexus’’ to navigable waters of the United States. This holding indicates that 

CWA jurisdiction over private lands is far more limited than Federal regulators 

have been willing to acknowledge. A majority of the Court explicitly rejected the expansive interpretation adopted by the U.S. Army Corps of Engineers, Environmental Protection Agency, and most lower courts. Indeed, this is the second time 

in only 6 years that the Court has so ruled. Due to Rapanos, the primary bases 

upon which the U.S. Army Corps of Engineers and the Environmental Protection 

Agency asserted regulatory jurisdiction are no longer valid. Unless these agencies 

wish to engage in a costly and inconsistent case-by-case approach to determining 

Federal jurisdiction, a new rulemaking is required to ensure that Federal regulations conform the applicable law. 

1REGULATORY JURISDICTION UNDER THE CLEAN WATER ACT

Federal regulations define wetlands as ‘‘areas that are inundated or saturated by 

surface or ground water at a frequency and duration sufficient to support, and that 
77 

2 See U.S. GENERAI, ACCOUNTING OFFICE, Waters and Wetlands: Corps of Engineers 

Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO-04-297, Feb. 

2004. 3 See, e.g., United States v. Deaton, 332 F.3d 698 (4th Cir. 2003) (interpreting SWANCC narrowly); United States v. Rapanos, 339 F.3d 447 (6th Cir. 2003) (same); United States v. Rueth 

Dev. Co., 335 F.3d 598 (7th Cir. 2003)(same); compare In re Needham, 354 F.3d 340 (5th Cir. 

2003) (after SWANCC Federal jurisdiction only extends to wetlands adjacent to navigable 

waters); Rice v. Harken Exploration Co., 250 F.3d 264 (5th Cir. 2001)(same). 4 See, e.g., Lance D. Wood, Do Not Be Misled: CWA Jurisdiction Extends to All Non-Navigable 

Tributaries of the Traditional Navigable Waters and to Their Adjacent Wetlands, 34 ENVTL. 

L. REP. 10187, 10189, 10195 (2004) (noting SWANCC was ‘‘ambiguous’’ and courts have been 

‘‘inconsistent’’ in their interpretations); Amended Statement of Patrick Parenteau, Professor of 

Law, Vermont Law School, before the House of Representatives Committee on Government Reform, Sept. 19, 2002 ( ‘‘The decision has created substantial uncertainty regarding the geographic jurisdiction of the Clean Water Act.’’); Position Paper on Clean Water Act Jurisdiction 

Determinations Pursuant to the Supreme Court’s Jan. 9, 2001 Decision, Solid Waste Agency of 

Northern Cook County v. U.S. Army Corps of Engineers, Associate of State Wetland Managers, 

Dec. 2001 ( ‘‘The section 404 regulatory program has been in turmoil ever since the Supreme 

Court’s SWANCC decision.’’). 

under normal circumstances do support, a prevalence of vegetation typically adapted 

for life in saturated soil conditions.’’ 33 C.F.R. §328.3(b). Yet it is not a given parcel’s wetland characteristics, but its connection to naviagable waters of the United 

States that forms the basis for Federal jurisdiction. 

The CWA, by its terms, only extends to ‘‘navigable waters of the United States.’’ 

Yet the CWA defines ‘‘navigable waters’’ as ‘‘the waters of the United States. 33 

U.S.C. §1362 (7). This definition extends Federal jurisdiction beyond those waters 

traditionally used for navigation, but it is still limited; the phrase of ‘‘navigable 

waters’’ is still relevant in jurisdictional determinations. As the Supreme Court has 

explained, ‘‘Congress intended the phrase ‘navigable waters’ to include at least some 

waters that would not be deemed ‘navigable’ under the classical understanding of 

that term.’’ Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, 171 (2001) (internal quotations omitted). Nonetheless, there is no ‘‘basis for reading the term ‘navigable waters’ out of the 

statuteThe term ‘navigable’ has at least the import of showing us what Congress 

had in mind as its authority for enacting the CWA: its traditional jurisdiction over 

waters that were or had been navigable in fact or which could reasonably be so 

made.’’ Id. at 172. 

The Supreme Court first considered the scope of the corps’ regulatory authority 

in 1985 in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). Here, 

the Court unanimously concluded that the Corps could reasonably define ‘‘waters of 

the United States’’ to include ‘‘wetlands adjacent to navigable bodies of water and 

their tributaries.’’ Id. at 123. The Court based this holding on the corps’ conclusion 

that such wetlands ‘‘are inseparably bound up with the ‘waters of the United 

States.’’’ Id. at 131. In so holding the Court did not ‘‘express any opinion’’ on whether Federal regulatory jurisdiction could be further extended to cover ‘‘wetlands that 

are not adjacent to bodies of open water.’’ Id. at 131-32 n.8. 

In 2001, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 

Engineers (SWANCC), 531 U.S. 159 (2001), the Court reaffirmed, but refused to extend, the holding of Riverside Bayview Homes. Specifically, the Court held that the 

CWA does not confer Federal regulatory jurisdiction over isolated, intrastate waters. 

Rather, the CWA only reaches those waters or wetlands that have a ‘‘significant 

nexus’’ to navigable waters. Id. at 167. Of note, the Court refused to defer to the 

Army Corps’ statutory interpretation because to do so would ‘‘invoke the outer limits 

of Congress’ power’’ to regulate private lands. Id. at 172. The Court refused to endorse an interpretation of the Act that would potentially exceed the scope of the 

Federal commerce clause in some of its applications. 

As this Committee is aware, application of SWANCC by regional Corps offices2

and lower Federal courts was quite inconsistent.3 This led to substantial uncertainty as to the current scope of Federal regulatory jurisdiction under the CWA.4

Rapanos resolves some, though not all, of the uncertainty generated by the 

SWANCC opinion. Rapanos makes clear that, under SWANCC, Federal regulatory 

jurisdiction under the CWA does not extend to non-navigable, isolated, intrastate 

waters, irrespective of whether migratory birds are used to provide the basis for jurisdiction. Indeed, the Court was unanimous on this point. See, 126 S.Ct. at 2217 

(Scalia, J., plurality); id. at 2244 (Kennedy, J., concurring in the judgment); id. at 

2256 (Stevens, J., dissenting). Waters and wetlands that lack any discernible 

hydrological connection to navigable waters are beyond the scope of the CWA. The 

Court also made clear that the standard adopted by most Federal appellate courts, 
78 

5 As Justice Kennedy further noted, ‘‘navigable waters’’ are ‘‘waters that are or were navigable 

in fact, or that could reasonably be so made.’’ Id. at 2236. 

including the Sixth Circuit, was too deferential to the Army Corps and failed to ensure that regulated wetlands actually had a ‘‘significant nexus’’ to navigable waters. 

THE HOLDING OF UNITED STATES V. RAPANOS

In United States v. Rapanos, the Court was called upon to address whether, and 

in what circumstances, regulatory jurisdiction under the CWA extends to wetlands 

that are not adjacent to waters that are navigable in fact. Whereas prior decisions 

produced clear majorities, the Rapanos court split into three groups. Four justices 

joined a plurality opinion, announcing the judgment of the Court and construing the 

CWA narrowly to excude such wetlands. Four justices joined a dissent that called 

for near-absolute deference to the Atiny Corps’ construction of its own jurisdiction 

under the CWA. And one justice joined the judgment of the Court, rejecting the expansive interpretation of Federal jurisdiction adopted by the Federal Government 

and endorsed by the U.S. Court of Appeals for the Sixth Circuit, but also adopting 

a broader (and more ambiguous) interpretation of the CWA than that urged by the 

plurality. The result is what some would term a ‘‘4-1-4’’ split. 

The lack of a majority opinion in Rapanos necessarily creates some uncertainty 

and ambiguity, but it does not preclude the existence of a holding that is binding 

on lower courts and Federal regulators. As explained in Marks v. United States, 

‘‘[w]hen a fragmented Court decides a case and no single rationale explaining the 

result enjoys the assent of five Justices, the holding of the Court may be viewed 

as that position taken by those Members who concurred in the judgments on the 

narrowest grounds.’’ 430 U.S. 188, 193 (1977). The judgment of the Court in 

Rapanos was to vacate and remand the decisions of the U.S. Court of Appeals for 

the Sixth Circuit in United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004) and 

Carabell v. United States Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004). 

Therefore, the concurring opinion of Justice Kennedy, and the grounds of agreement 

between Justice Kennedy and the plurality opinion authored by Justice Scalia, form 

the holding of the Court. 

The central holding of Rapanos is that a ‘‘significant nexus’’ between a given 

water or wetland and navigable waters is a necessary predicate for regulatory jurisdiction under the CWA. As Justice Kennedy explained ‘‘the corps’ jurisdiction over 

wetlands depends upon the existence of a significant nexus between the wetlands 

in question and navigable waters in a traditional sense.’’ 126 S. Ct. at 2248 (emphasis added); see also id. at 2241 ( ‘‘Absent a significant nexus, jurisdiction under the 

Act is lacking.’’).5 In this regard, the Rapanos court largely followed the reasoning 

adopted by the Court in SWANCC, where the Court had previously held that 

‘‘waters of the United States’’ only applies to those waters and wetlands that have 

a ‘‘significant nexus’’ to navigable waters, and rejected the jurisdictional theories put 

forward by the Federal Government and many amici. 

Whereas the Sixth Circuit and Federal regulators had maintained that any 

hydrological connection between a given wetland and navigable waters would be sufficient to assert Federal regulatory jurisdiction, a majority of the Court rejected this 

view. A ‘‘mere hydrologic connection,’’ by itself, will not be enough to establish jurisdiction in all cases. 126 S. Ct. at 2251. The connection must be significant. Justice 

Kennedy elaborated on what such a connection must entail: 

wetlands possess the requisite nexus, and thus come within the statutory phrase 

‘‘navigable waters,’’ if the wetlands, either alone or in combination with similarly 

situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘‘navigable.’’ When, 

in contrast, wetlands’ effects on water quality are speculative or insubstantial, they 

fall outside the zone fairly encompassed by the term ‘‘navigable waters.’’ 126 S. Ct. 

at 2248. 

Whereas it is reasonable for the corps to presume jurisdiction over wetlands adjacent to truly navigable waters—that is ‘‘waters that are or were navigable in fact, 

or that could reasonably be so made’’ 126 S.Ct. at 2236—absent a greater ecological 

connection, adjacency to a nonnavigable tributary by itself will not be enough to establish jurisdiction. 126 S.Ct. at 2252. 

Justice Kennedy also joined the plurality and rejecting the dissent’s willingness 

to defer to any conceivable regulatory interpretation of ‘‘waters of the United 

States,’’ no matter how broad. As Kennedy noted, ‘‘the dissent would permit Federal 

regulation whenever wetlands lie alongside a ditch or drain, however remote and 

insubstantial, that eventually may fallow into traditional navigable waters. The deference owed to the corps’ interpretation of the statute does not extend so far.’’ Id. 
79 

6Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of 

‘‘Waters of the United States,’’ 68 Fed. Reg. 1991 (Jan. 15, 2003). 

at 2247. Justice Kennedy observed that ‘‘the dissent reads a central requirement 

out—namely the requirement that the word ‘navigable’ in ‘navigable waters’ be 

given some importance.’’ Id. As Justice Kennedy and the plurality both made clear, 

‘‘the word ‘navigable’ in the Act must be given some effect.’’ Id. Another implication 

of Justice Kennedy’s opinion is that the current regulatory definition of tributaries 

is also overbroad, insofar as it allows for the assertion of jurisdiction with little regard for the actual connections between a given ditch, swale, gully, or channel with 

actual navigable waters. Here again, Justice Kennedy was in agreement with the 

plurality. 

While there is some amount of agreement between Justice Kennedy’s concurrence 

and the dissenting justices, it would be wrong to view any part of Justice Stevens’ 

dissent as a ‘‘holding’’ of the Court. Nothing in the dissent constitutes a portion of 

the judgment of the Court, so nothing in the dissent is legally binding. As the Supreme Court noted in Marks, the holding of the Court is ‘‘that position taken by 

those Members who concurred in the judgments on the narrowest grounds.’’ 430 

U.S. at 193 (emphasis added). Moreover, Justice Kennedy’s concurring opinion explicitly rejected Justice Stevens’ near-limitless approach to Federal jurisdiction, so 

the latter provides no useful guide for determining the CWA’s jurisdictional limits. 

The urgency or importance of some environmental concerns provides no justification for adopting a more expansive view of Federal regulatory jurisdiction or adopting a more lenient approach to statutory interpretation. According to a majority of 

the Court, such policy considerations cannot trump the text of the statute itself. As 

Justice Kennedy noted, in explicit agreement with the plurality, ‘‘environmental 

concerns provide no reason to disregard limits in the statutory text.’’ 126 S.Ct. at 

2247. Moreover, as I will explain below, not every environmental concern is best addressed through the expansion of Federal regulation. More Federal environmental 

regulation does not always produce greater environmental protection. 

THE EFFECT ON PRE-EXISTING REGULATIONS

One clear implication of the Court’s decision in Rapanos is that the current Federal regulations used by the Army Corps of Engineers and Environmental Protection 

Agency to define the scope of the CWA are no longer valid. For instance, insofar 

as Federal regulations purport to define ‘‘waters of the United States’’ to include 

intrastate waters ‘‘the use, degradation, or destruction of which could effect interstate commerce or foreign commerce,’’ 33 C.F.R. §28.3(a)(3) and wetlands adjacent 

to such waters 33 C.F.R. §328.3(a)(7), they far exceed the holdings of both SWANCC 

and Rapanos. The Court also rejected the current regulatory definition of what constitutes a ‘‘tributary’’ in 33 C.F.R. §328.3(a)(5) as overbroad. 

Courts owe substantial deference to the Army Corps and EPA in their assessment 

of the ecological connections between types of wetlands and water systems and navigable waters. Yet those regulations currently on the books do not establish such a 

connection, and provide no assurance that those wetlands over which the Corps’ asserts jurisdiction in fact have a ‘‘significant nexus’’ to the waters of the United 

States. Until the Corps and EPA promulgate regulations that identify those wetland 

characteristics that are sufficient to establish such a nexus, in at least the majority 

of cases, the corps will be forced to ‘‘establish a significant nexus on a case-by-case 

basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries.’’ 126 S.Ct. at 2249. This will necessarily increase the administrative burden 

of wetland enforcement, generating increased uncertainty and delays in permit reviews. IT will also limit the corps’ ability to ensure that the ecological goals of the 

Section 404 program are being met. 

Some of these problems may have been avoided had the Army Corps and EPA 

revised their regulations in response to the SWANCC decision, a point made by the 

Chief Justice in his concurrence. In January 2003, the Army Corps and EPA issued 

an advance notice of proposed rulemaking to clarify the scope of regulatory jurisdiction under the CWA.6 In December 2003, however, the Army Corps and EPA announced they would not issue a new rulemaking. One reason given for this decision 

was Federal courts had narrowly interpreted SWANCC’ s impact. Whether or not 

the Army Corps and EPA were correct in this assessment—and I believe most lower 

courts adopted an unjustifiably narrow reading of SWANCC, a view vindicated by 

the Rapanos holding—this justification for continuing to rely upon the pre-existing 

Federal regulations is no longer valid. To the contrary, it is incumbent upon the 
80 

Army Corps and EPA to develop and promulgate new regulations defining the scope 

of ‘‘waters of the United States’’ under the CWA. 

THE PATH AHEAD

In developing new implementing regulations, the Federal Government should not 

repeat the mistake of seeking to assert the broadest possible interpretation of 

‘‘waters of the United States.’’ Adopting a regulatory interpretation that is potentially at odds with Rapanos and SWANCC is not in the interest of the regulated 

community nor does it best serve the cause of wetland conservation. Refusing to 

abide the letter and spirit of the Supreme Court’s decision is a recipe for further 

litigation, court losses, and regulatory uncertainty. It would also represent a missed 

opportunity to harmonize Federal regulations with current law and the Federal 

Government’s particular conservation interests. 

Federal regulatory resources are necessarily limited. For this reason, Federal resources are best utilized if they are targeted at those areas where there is an identifiable Federal interest or the Federal Government is in particularly good position 

to advance conservation goals. For example, there is an undeniable Federal interest 

in regulating the filling or dredging of wetlands where such activities would cause 

or contribute to interstate pollution problems or compromise water quality in interstate waterways. Where the effects of wetland modification are more localized, however, the Federal interest is less clear. Not coincidentally, in the latter case, the 

basis for Federal jurisdiction is also more attenuated. 

Limiting Federal regulatory authority to the areas of greatest Federal interest 

would certainly create room for the expansion of State and local regulatory efforts. 

Over-expansive assertions of Federal regulatory authority may preclude, discourage, 

or otherwise inhibit State and local Governments and non-governmental conservation organizations from adopting environmental protections where such efforts 

would be worthwhile. Contrary to common perceptions, State wetland regulation 

preceded Federal regulatory efforts. Indeed, the first State wetland conservation 

statutes were adopted more than a decade before the Army Corps and EPA began 

regulating the dredging and filling of wetlands. Since then, many States have 

stayed well ahead of the Federal Government, adopting more innovative or protective wetland conservation programs. Yet it also appears that greater conservation 

efforts by non-Federal actors may have been ‘‘crowded out’’ by an overzealous interpretation of Federal jurisdiction. If the Federal Government will regulate everything, there is less incentive for other entities to act. Insofar as Federal efforts are 

inefficient, misdirected, or ineffective—all charges that have been leveled against 

the Section 404 program—this reduces environmental conservation. By developing 

jurisdictional regulations that establish a ‘‘significant nexus,’’ in part, by focusing 

on those instances in which there is a particular Federal interest, the Army Corps 

and EPA can maximize wetland conservation by complementing and supplementing, 

rather than supplanting, non-Federal efforts. 

It is also important for Federal policymakers not to lose sight of the fact that Federal regulation under the CWA is not the only means for advancing wetland conservation. Indeed, the experience of Federal conservation programs that rely upon 

incentives and cooperation with private landowners compares quite favorably with 

the conflicts and inconsistencies of Federal wetland regulations. Federal support for 

the protection of waterfowl habitat dates back over 70 years to the sale of ‘‘duck 

stamps’’ to hunters that created a dedicated source of revenue for conservation of 

an estimated 4.5 million acres. Other programs under which the Federal Government enters into private agreements with landowners to restore wetlands on their 

property, while subsidizing the cost of restoration and the purchase of a permanent 

or multi-year easement to ensure that the wetland is protected, are particularly 

cost-effective when compared to mandated mitigation under the CWA. Such programs are also not confined by the jurisdictional limits of the CWA, nor do they generate the litigation and conflict of Federal controls on private land-use decisions. 

Insofar as some types of wetlands, such as prairie potholes, may be particularly 

likely to lie beyond the scope of Federal regulation, incentive programs remain a 

viable conservation option. Indeed, enlisting private landowners and conservation 

organizations through incentive programs has conserved hundreds of thousands of 

acres of wetlands and was the driving force behind the attainment of ‘‘no net loss’’ 

of wetlands during the 1990s. There is no reason why this cannot continue, despite 

the limitations on Federal regulatory jurisdiction. Private landowners, who own the 

majority of wetlands in this nation, are far more willing to cooperate with conservation organizations and Government agencies when doing so does not increase the 

threat of Federal regulation. It would be a tragedy were an inordinate focus on 
81 

maximizing regulatory jurisdiction to come at the expense of sufficient support for 

alternative means of encouraging wetland conservation. 

Mr. Chairman and members of this subcommittee, I recognize the importance of 

these issues to you and your constituents, and I commend your efforts to examine 

what, if any, Congressional or administrative response to the Rapanos decision is 

appropriate. I hope that my perspective has been helpful to you, and will seek to 

answer any additional you might have. 

RESPONSES BY JONATHAN H. ADLER TO ADDITIONAL QUESTIONS FROM

SENATOR CHAFEE

Question 1. In the plurality’s opinion, Justice Scalia seems to indicate that while 

he supports a more narrowed scope of the Clean Water Act for the purposes of the 

Section 404 wetlands permitting program, he does not support a similar narrowing 

of the Act’s authority for other programs, such as the National Pollutant Discharge 

Elimination System (NPDES) Program. What is your position on this issue? 

Response. While the definition of ‘‘waters of the United States’’ is the same for 

all sections of the Clean Water Act, narrowing the scope of ‘‘waters of the United 

States’’ does not have the same practical effect on the NPDES program that it does 

on the Section 404 program. The 404 program, by its terms, only applies to the deposit of material into waters of the United States. The NPDES program may have 

a broader reach, however. NPDES permits may be required for ‘‘upstream’’ activities 

that occur outside of the ‘‘waters of the United States’’ that nonetheless result in 

discharges of pollutants into ‘‘waters of the United States.’’ As the Scalia plurality 

correctly notes, the Act prohibits any unpermitted discharge of a pollutant from a 

point source into ‘‘waters of the United States.’’ Further, Justice Scalia writes, 

‘‘from the time of the CWA’s enactment, lower courts have held that the discharge 

into intermittent channels of any pollutant that naturally washes downstream likely 

violates §1311(a), even if the pollutants discharged from a point source do not emit 

‘‘directly into’’ covered waters, but pass ‘‘through conveyances’’ in between.’’ 

In other words, actions that cause the pollution of waters and wetlands that are 

beyond the scope of the Clean Water Act could nonetheless be subject to the act if 

they result in such discharges into ‘‘waters of the United States’’ from ditches, channels, or other conveyances that may not themselves be otherwise covered by the Act. 

In this way, the narrowing of the Act’s jurisdiction does not have as great an impact 

on the NPDES program as it does upon Section 404. 

Question 2. It is often suggested that if Clean Water Act jurisdiction over wetlands is reduced by judicial or regulatory decision, states and local Governments 

could act to fill in the resulting gap. That point was often raised after SWANCC, 

but the States tell us that only a few of them actually modified their laws or regulations in response to that decision. What do you believe will be the response of the 

States to the Rapanos decision? Do you believe States will act to fill regulatory gaps 

created by the ruling? 

Response. Many States already provided protection for isolated waters and wetlands prior to the SWANCC decision. After the SWANCC decision, numerous States 

that did not already provide regulatory protection of isolated waters considered the 

adoption of new rules or statutes to cover any potential gap created by the Court’s 

decision. Some of these States, such as Ohio, adopted new legislation. Others adopted new administrative rules. Still others waited to see how the decision would be 

interpreted before deciding whether additional State rules were necessary. 

Before many States could act the Federal Government and lower courts made 

clear that they would interpret SWANCC very narrowly, reducing the need for State 

or local Governments to act. Therefore, it should not be surprising that more States 

did not adopt additional wetland protections. In addition, the continuing operation 

of the Federal wetland regulatory program may serve to discourage the adoption of 

more protective State programs. 

In order to encourage more States (and other non-Federal entities) to take action 

to conserve wetlands, the Federal Government should move quickly to resolve remaining uncertainty about the scope of Federal regulatory authority under the 

Clean Water Act. This would be best achieved through a notice and comment rulemaking. As long as there is uncertainty about how Rapanos will be applied, States 

will have less incentive to act. 

Question 3. Both SWANCC and the Rapanos plurality suggested that the Corps’ 

broad interpretation of its Clean Water Act jurisdiction ‘‘pushes the envelope’’ of the 

Federal commerce power. If Congress pursues a legislative clarification of the Act’s 

reach, how far can it go without exceeding its power under the Commerce Clause? 
82 

Response. The precise scope of Congress’s power to regulate commerce among the 

several States is a matter of some dispute. Under current Supreme Court precedent, 

this power can be used to regulate A) channels of interstate commerce, B) instrumentalities or persons and things in interstate commerce, and C) those activities 

that have a substantial effect on interstate commerce. 

As the Supreme Court made clear in Gonzales v. Raich, 545 U.S. 1 (2005) if Congress uses the commerce power to erect a broad, nationwide regulatory scheme focused on economic activities, such regulations are not unconstitutional merely because they may encompass some activities that, taken in isolation, do not have such 

an effect on interstate commerce. This would suggest that Congress has broad power 

to regulate economic activities that lead to the destruction of wetlands as part of 

a larger economic regulatory scheme. This does not mean, however, that Congress’s 

power extends to cover any and all activities that effect any and all lands with certain wetland characteristics, irrespective of those lands’ connections to interstate 

commerce or navigable waters of the United States. In this regard it is worth noting 

that Justice Kennedy’s concurrence, insofar as it limits Federal authority to those 

wetlands that have a ‘‘significant nexus’’ to navigable waters, ensures that the 

Clean Water Act does not exceed the scope of Congress’s enumerated powers. 

Consideration of the limits of the Federal commerce power should not obscure the 

fact that the broadest assertion of Federal regulatory authority is not necessarily 

the most prudent exercise of such authority. The Federal Government has a greater 

interest in some environmental matters than in others. In particular, the Federal 

interest is greatest where Federal authorities have a comparative advantage in protecting particular environmental resource, such as may be the case with transboundary resources (e.g. navigable rivers and streams that cross State lines and 

interstate watersheds) or scientific research. The Federal interest is less strong in 

the case of relatively isolated intrastate waters and wetlands that States and localities are fully capable of protecting. The Federal Government can maximize the 

value of a Federal water pollution control program by focusing its efforts on those 

areas where the Federal interest is the greatest or States are particularly unable 

or unlikely to act. A program that is focused in this fashion is unlikely to exceed 

the scope of the commerce power. 

Question 4. Since the Rapanos ruling, a number of different stakeholders have 

suggested that Congress should legislate in order to clarify what is the extent of regulatory jurisdiction to protect wetlands. One current proposal is the Clean Water 

Authority Restoration Act, S. 912, which would provide a broad statutory definition 

of ‘‘waters of the United States.’’ Some say that the statutory definition in that bill 

would conform the Clean Water Act to the administrative definitions used by the 

Corps and EPA prior to the SWANCC decision, but others say that the bill is even 

broader than the Corps and EPA rules. What is your interpretation of the definition 

in that legislative proposal? 

Response. S. 912 limits the definition of ‘‘waters of the United States’’ to the extent that such waters ‘‘are subject to the legislative power of Congress under the 

Constitution.’’ In my view, this language limits the scope of Federal jurisdiction to 

the scope of Congress’s commerce power. Insofar as the prior Army corps and EPA 

regulations, as interpreted and implemented by the two Agencies, exceeded the 

scope of the Federal commerce power, S. 912 is less expansive. 

There is language in S.912 that could suggest a more expansive interpretation, 

however. For instance, finding 13 asserts that ‘‘Activities that result in the discharge of pollutants into waters of the United States are commercial or economic 

in nature.’’ This finding suggests that all sorts of non-economic activities—including 

personal activities that individual landowners take on their own private land—are 

subject to Federal jurisdiction, irrespective of their economic character. This is problematic. A bald declaration by Congress that a given activity is ‘‘economic in nature’’ 

does not make it so. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (noting 

and rejecting Congressional findings that gender-motivated violence is an economic 

activity). 

RESPONSES BY JONATHAN H. ADLER TO ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question 1. In response to a question from Senator Jeffords, Mr. Clayton expressed concerns about the ability of States to ‘‘take care of wetland delineations 

and wetland problems.’’ As an example he cited a river that runs from most of North 

Dakota and South Dakota stating that ‘‘There is no way one single State should 

have that kind of jurisdiction over wetlands.’’ In your testimony you speak about 
83 

history of State wetland regulation. Can you please comment on Mr. Clayton’s concerns? 

Response. I believe that the concerns expressed by Mr. Clayton are misplaced. 

Nothing in the Rapanos decision in any way limits current Federal authority over 

interstate waters, such as rivers that run from one State into another. Nor does 

anything in Rapanos limit current Federal authority over wetlands adjacent to such 

waters. Further, insofar as the modification of nonadjacent wetlands could have a 

significant effect on such interstate waters, and thus have a ‘‘significant nexus’’ to 

such waters, they too remain subject to Federal regulatory authority under the 

Clean Water Act. 

Question 2. There are numerous cooperative voluntary Federal programs designed 

to protect wetlands, including the Partners for Fish and Wildlife program of which 

I am a strong supporter, the Wetlands Reserve Program, North American Wetlands 

Conservation Program and the Conservation Reserve Program. Through these programs millions of acres have been protected across the country. These programs 

have successfully resulted in the protection thousands if not millions of acres of 

duck habitat in the Dakotas. Are these programs that respect the rights of private 

property owners but also protect the environment, an effective means of ensuring 

the protection of areas about which Mr. Clayton’s members are concerned? 

Respons.e These programs are a very cost-effective and efficient means of conserving and restoring wetlands and other ecologically valuable lands. One reason 

these programs are so effective is that they enlist private landowners as partners 

in conservation, and encourage environmental stewardship on private land. By contrast, regulatory proscriptions of private land use engender hostility and resentment, and often discourage private landowners from cooperating in conservation efforts. Another reason these programs are particularly effective is because they are 

targeted upon the maintenance and protection of particular ecosystem services, such 

as the provision of waterfowl habitat. The section 404 program, on the other hand, 

is not targeted on the protection of particular ecosystem services. To the contrary, 

as I noted in my testimony, many regulatory decisions under section 404 are made 

without any meaningful consideration of the ecological impacts. 

Question 3. In Chief Roberts concurrence, he states that ‘‘no opinion commands 

a majority of the Court on precisely how to read Congress’ limits on the reach of 

the Clean Water Act.’’(emphasis added). However, Professor Buzbee argues that 

Justice Roberts was in fact arguing that there was no majority opinion of the court. 

Do you agree that Justice Roberts was arguing that there was not a majority opinion of the Court particularly a majority that agreed to remand the case to the 6th 

Circuit? 

Response. While no single opinion articulated a rationale for the Court’s holding 

that was accepted by five members of the Court, a majority of the Court did agree 

to remand the two cases to the U.S. Court of Appeals for the Sixth Circuit. This 

majority formed the basis of the Court’s judgment. Further, as explained in Marks 

v. United States, there is a majority holding: ‘‘that position taken by those Members 

who concurred in the judgments on the narrowest grounds.’’ 430 U.S. 188, 193 

(1977). Under this standard, the concurring opinion of Justice Kennedy, and the 

grounds of agreement between Justice Kennedy and the plurality opinion authored 

by Justice Scalia, form the holding of the Court. 

RESPONSES BY JONOTHAN H. ADLER TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. You state in your testimony that you are a fairly active outdoor recreationist and that wetlands provide many ‘‘ecological services’’ on which your recreation depends. What types of outdoor recreation do you participate in, and what ecological services do wetlands provide to you? Do you believe the extent to which those 

‘‘ecological services’’ are available is likely to change as a result of the Rapanos— 

Carabell decision? 

Response. Since I was a child, and attended a school that spent one day each 

week at a rural farm, I have been an active outdoor recreationist, with an interest 

in hiking, backpacking, camping, wildlife viewing, fishing, and hunting, among 

other activities. These recreational activities rely upon many ecosystem services provided by wetlands, including habitat for both aquatic and terrestrial species. 

These interests continue to the present. Indeed, immediately following the Committee’s August 1 hearing, I left for a fly fishing trip with my father in western 

Montana. My current home in located alongside Summit County, Ohio’s hike and 

bike trail that winds along the Cuyahoga National Park, our community relies upon 
84 

local well water, and my backyard opens into locally protected wetlands. Thus, my 

interest in wetlands and the ecosystem services they provide is more than academic. 

Whether the availability of the ecosystem services upon which my (and many others’) recreational activities rely will be negatively affected by the Rapanos decision 

depends primarily upon the responses of Federal agencies, the Congress, State and 

local Governments, and conservation organizations. If the Federal Government responds to Rapanos like it did to the SWANCC decision, I believe this will lead to 

continued litigation, conflict, and regulatory uncertainty—all of which will discourage the development of new conservation strategies that can protect wetlands and 

the ecosystem services that they provide. On the other hand, if the Federal Government takes the opportunity to refocus its efforts on those waters and wetlands in 

which the Federal interest is the greatest, and makes the boundaries of Federal authority clear to State and local Governments, I think that many States will augment 

their existing wetland conservation efforts to complement those of the Federal Government, and the net result will actually be an overall improvement in wetland conservation. 

Question 2. One of Congress’ clear goals in the Clean Water Act is to ensure all 

Americans have clean and safe water for drinking water supplies, fishing, swimming 

and other recreation, and so on. But leaving it to the States cannot guarantee this 

goal is met, especially if some States do not enact strong clean water laws. Isn’t ensuring all Americans have access to clean water a legitimate Federal goal? 

The Federal Government clearly has a role in preventing one State from imposing 

environmental harms upon another. If an upstream State dumps pollution that 

harms a downstream State, the latter State should have a Federal remedy. At 

present, however, relatively little of the Clean Water Act (or, indeed, of Federal environmental law as a whole) is focused upon such concerns. Such a policy can ensure 

that all Americans have access to the level of water quality that they desire. 

Where pollution occurs in a given State, and the costs of that pollution are not 

externalized on downstream jurisdictions, the Federal interest is less clear. Indeed, 

I do not accept the premise that Federal officials care more about the health and 

safety of local communities more than do those communities themselves; nor do I 

believe that Federal officials are better able to make the various economic and environmental trade-offs required to set water quality goals. 

The lesson of uniform Federal mandates is that national ‘‘one-size-fits-all’’ approaches too often become ‘‘one-size fits-no-one In the case of water quality, this 

committee is well aware that Federal drinking water mandates forced some communities to squander valuable public health resources testing for nonexistent contaminants. This was not in the public interest, and Congress should seek to avoid such 

mistakes in the future. 

Question 3. In the wake of the SWANCC decision, how many States stepped in 

and adopted laws to make sure that the so-called ‘‘isolated’’ waters at issue in that 

case were protected by State law? How many did not? 

Response. In the wake of the SWANCC decision, at least 19 States considered or 

adopted additional protections for isolated waters. Ohio, for example, adopted an 

‘‘emergency measure’’ to protect isolated wetlands in July 2001. Wisconsin, Indiana, 

North Carolina, and South Carolina are among those States that took action in response to the SWANCC decision. The specific site at issue in SWANCC is also instructive. After it became clear that the Federal Government did not have the authority to prevent the construction of a balefill on the site, local Government agencies that had previously supported the project acted quickly to stop the project and 

conserve the land at issue. 

Those States that did not enact protections for isolated wetlands after SWANCC 

failed to act for one of several reasons. First, some States already had statutory or 

regulatory protections for isolated wetlands in place. Indeed, several States have 

long maintained greater wetland protections than the Federal Government. Among 

the States that the Association of State Wetland Managers reports have comprehensive wetland protection programs are Connecticut, Florida, Maine, Maryland, Massachusetts, Michigan, Minnesota, Michigan, New Hampshire, New Jersey, New 

York, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia. Over 20 States 

now provide some protection for the sort of isolated freshwater wetlands most affected by the SWANCC decision. 

Some States were likely discouraged from acting due to the tremendous uncertainty about the extent to which State action was necessary after SWANCC, including conflicting Agency applications and an interpretive split in the lower courts. 

This sort of uncertainty discourages States from acting insofar as it is less clear 

what the benefits of additional State action will be. 

It is also important to note that neither SWANCC nor Rapanos did anything to 

limit the scope of incentive-based conservation programs, such as those referenced 
85 

in my testimony. Insofar as some of these programs are focused on the conservation 

of isolated wetlands, they may also serve to fill some of any regulatory ‘‘gap’’ created 

by these decisions. 

Question 4. Since about half of the States have opted to rely on Federal protections with State laws saying that clean water or other environmental laws can be 

‘‘no stricter than’’ Federal laws, doesn’t that undermine your theory that these are 

largely State matters, and as a practical matter, doesn’t it mean that these States 

will have a difficult time stepping in to protect streams, other tributaries and wetlands if these waters do not have Federal protections? 

Response. Not at all. To the contrary, the fact that many States have decided to 

adopt Federal standards confirms the claim I have made in my research that Federal regulatory decisions can effect State regulatory decisions. For whatever reason, 

some States have decided that Federally mandated standards are equal or greater 

than the levels necessary for the protection of environmental values within those 

States. If Federal protection contracts, nothing prevents States from revisiting this 

decision. So long as Federal law does not preempt more expansive State regulations, 

States remain free to adopt new regulatory protections, as many States have done 

in the past decade. 

Question 5. How do you explain that fact that a majority of States filing a brief 

in the Rapanos—Carabell cases—34 plus the District of Columbia—argued on the 

side of the Bush administration in favor of strong Federal protections, and only 2 

argued for weaker Federal standards? 

Response. State Governments have always preferred for the Federal Government 

to pay for and provide services and programs that States are fully capable of providing. Therefore, the amicus briefs filed by the various states prove nothing other 

than States would like for the Federal Government to devote its resources to protect 

ecological values that are important in these States. That State Governments would 

prefer Federal regulation—thereby avoiding having to dedicate their own resources 

to such programs (and avoiding having to take responsibility and be accountable for 

the consequences of any public disapproval with the implementation of the program)—says nothing about the extent to which States are capable and willing to 

adopt programs of their own. Indeed, as I noted in my testimony, the history of wetland regulation provides strong evidence that States are both willing and capable 

of adopting effective wetland conservation measures. Insofar as Congress believes 

that these programs are insufficient, it would be more effective for the Federal Government to encourage and support the expansion of such programs than to seek to 

implement the broadest Federal regulations over top of State programs. 

Question 6. You have written elsewhere that ‘‘[I]t seems likely that some environmental statutes exceed the scope of the Commerce Clause power . . . ’’ In particular, you have identified the Clean Water Act as a statute that is particularly 

vulnerable. But in his testimony, Professor Buzbee states that five justices explicitly 

rejected the arguments made in Rapanos—Carabell that the Commerce Clause limits the ability of Congress to assert Federal Clean Water Act authority over the tributaries and wetlands at issue in the case. Do you agree that the Commerce Clause 

arguments were rejected by a majority of the Rapanos—Carabell Court? 

Response. No. As in the SWANCC decision, a majority of the Court adopted a narrow construction of the meaning of ‘‘waters of the United States’’ so as to ensure 

that the Clean Water Act did not exceed the scope of the Commerce Clause. As Justice Kennedy noted in his concurrence: 

In SWANCC, by interpreting the Act to require a significant nexus with navigable 

waters, the Court avoided applications--those involving waters without a significant 

nexus—that appeared likely, as a category, to raise constitutional difficulties and 

federalism concerns. . .

as exemplified by SWANCC, the significant-nexus test itself prevents problematic 

applications of the statute. 

This does not constitute a rejection of commerce clause arguments. To the contrary, commerce clause concerns lie behind the interpretation adopted by the Court 

in Rapanos just as they did in SWANCC. 

Question 7. In 2003, in response to the EPA’s rulemaking on this subject, my 

home State of Vermont commented that, ‘‘While the State could amend its statutes 

to allow for regulation in smaller watersheds, the net result would be to shift the 

costs of regulation from the Federal Government to the State.’’ This appears inconsistent with your belief that States are clamoring to take over clean water regulation on their own. How do you respond to these comments? 

Response. I have never claimed that States are ‘‘clamoring to take over clean 

water regulation on their own.’’ Rather, I have claimed that sates are willing and 

able to do so if the Federal Government reduced its role. I have also noted that 
86 

State Governments may well prefer to have services provided to their citizens at the 

cost and expense of the Federal Government, and that State officials may wish to 

avoid the responsibility for implementing potentially controversial regulatory programs. 

Question 8. In 2003, my home State of Vermont commented to EPA in response 

to the Agency’s rulemaking on this topic that a reduction in Federal permit jurisdiction will shrink the State’s opportunity under section 401 of the Act to ensure that 

Federal projects comply with State water quality standards. In this manner, States’ 

rights would actually be limited by reducing the jurisdiction of the Clean Water Act. 

How do you respond to this point? 

Response. I have not fully examined the potential impact on section 401, but I 

would be surprised if the impact was all that significant. Given that section 401 applies to Federal projects, however, it would be relatively easy for congress to impose 

greater protections for State interests in all Federal projects without extending the 

scope of CWA authority. 

Question 9. You suggest that the Federal Government’s interest in preventing 

purely intrastate pollution of waterbodies is less than clear. Does the Federal Government have an interest in the safety of drinking water supplies? What about the 

health of fisheries? Are you suggesting that Congress or the agencies might not be 

able to protect intrastate lakes from industrial discharges? 

Response. If congress sought to focus on industrial discharges, as such, I do not 

believe there would be any constitutional barrier to such regulations under current 

Commerce Clause jurisprudence. Similarly, I think that current precedent would not 

in any way preclude the comprehensive regulation of fisheries. Such regulations are 

quite different from the control of private land-use and each and every parcel exhibiting wetland characteristics for a sufficient portion of the year. To suggest that the 

scope of Federal regulation far exceeds the scope of legitimate Federal interests is 

not to say that the Federal Government should have no role. 

In the case of drinking water supplies, I think that the adoption of Federal standards has been a mixed blessing, and it is clear that some States concur with this 

assessment, as States have filed suit in Federal court to block the implementation 

of Federal standards that those States did not believe were in the best interests of 

their citizens. 

Question 10. Why do you believe that new regulations are the answer when this 

is fundamentally a matter of what Congress intended to protect? 

Response. I believe that Federal regulations can be adopted more quickly and can 

provide greater certainty than new legislation. Irrespective of whether Congress enacts revisions to the Clean Water Act, administrative regulations will be required 

to fill out the interstices and resolve inevitable ambiguities left in the statutory language. Furthermore, the Corps and EPA have the administrative expertise to address such specific concerns in a manner that Congress do esnot. 

Question 11. One reason you advocate limiting the scope of waters protected by 

the Federal law is that Federal regulatory resources are limited. Do States have the 

resources to protect these waters? Please be specific as to which parts of State budgets are robust enough to ensure water quality protection. 

States are already responsible for the bulk of frontline environmental management and enforcement. States conduct the vast majority of environmental inspections and initiate the bulk of environmental enforcement actions. In the specific context of wetlands, many State already have wetland protection programs of their 

own, and quite a few of these programs exceed the scope and protectiveness of the 

Federal Section 404 program. 

If this committee is concerned that States lack the resources to play a greater role 

in wetland protection it could make it easier for States by either a) reducing the 

burden of existing environmental mandates on State Governments, or b) providing 

States with funding for State wetland programs. 

Question 12. You claim that ‘‘Justice Kennedy’s concurring opinion explicitly rejected Justice Stevens’ near-limitless approach to Federal jurisdiction, so the latter 

provides no useful guide for determining the CWA’s jurisdictional limits.’’ Since Justice Kennedy says that the ‘‘plurality’s opinion is inconsistent with the Act’ s text, 

structure, and purpose,’’ is it safe to assume that you believe that Justice Scalia’s 

approach is entitled to no weight? 

Response. No. Justice Scalia’s plurality opinion—unlike Justice Stevens dissent— 

forms part of the majority in support of the court’s judgment. Justice Scalia’s opinion is thus relevant in determining the scope of the Court’s holding in a way that 

Justice Stevens’ is not. 
87 

RESPONSES BY JONATHAN H. ADLER TO ADDITIONAL QUESTIONS FROM

SENATOR MURKOWSKI

Question 1. As an expert in this field, can you discuss the concept of a ‘‘significant 

nexus’’ as applied to remote wetlands in northern Alaska that are not connected to 

navigable waters, where wetlands are frozen much of the year and where the wetlands are underlain by an impermeable layer of permafrost? 

Response. I am not all that familiar with the specific ecological conditions of remote wildlands in Northern Alaska, so I do not feel qualified to comment on this 

decision will effect such lands. 

Question 2. We heard Mr. Gumbles and Mr. Woodley suggest that their agencies’ 

next step in this process is to provide ‘‘guidance’’ on the way Agency representatives 

should respond to the Rapanos ruling. In your opinion as an expert, what are the 

relative merits and detriments to such ‘‘guidance’’ in comparison to establishing a 

formal rule? 

Response. A guidance can serve to inform the regulated community how the Federal Government plans to respond to the Rapanos decision. Guidance documents can 

be issued relatively quickly, but such documents do not bind the public, however, 

nor do they receive significant deference from courts. As a result, a guidance document can only provide a limited amount of regulatory certainty, and should not be 

used as more than an interim measure. To provide real certainty as to the scope 

of Federal regulatory authority under the CWA post-Rapanos, the Army Corps and 

EPA should initiate a Notice of Proposed Rulemaking in order to develop new regulations defining the scope of ‘‘waters of the United States.’’ 

Question 3. In your opinion, if a given wetland has no significant nexus with navigable waters, are there State, municipal, or Federal laws other than the Clean 

Water Act that could be used to protect its value for wildlife habitat, recreation or 

other purposes? 

Response. Numerous States and local Governments have wetland protection statutes of their own. In addition, there are several incentive-based Federal programs 

that fund the conservation and restoration of wetlands that are not limited to those 

wetlands that have a significant nexus with navigable waters. 

TESTIMONY OF WILLIAM W. BUZBEE PROFESSOR OF LAW, DIRECTOR OF

ENVIRONMENTAL AND NATURAL RESOURCES LAW PROGRAM EMORY LAW SCHOOL

I thank the Senators and their staff for this opportunity to discuss the Supreme 

Court’s recent decision in the joint cases, Rapanos v. United States and Carabell v. 

U.S. Corps of Engineers (hereinafter, Rapanos). 

I am a Professor of Law at Emory Law School, where I direct Emory’s Environmental and Natural Resources Law Program. During my legal career I have worked 

for a private law firm, for industry, for municipal and State clients, and also for environmental groups. I will be a Visiting Professor for a portion of this coming year 

at Cornell Law School, have been a Visiting Professor at Columbia Law School, and 

have also, for Columbia and Amsterdam Law Schools in Europe, taught lawyers, 

judges and Government officials seeking an introduction to American law. I am a 

graduate of Columbia Law School and Amherst College. 

I suspect that I was invited here primarily due to my involvement with the 

Rapanos case. I co-authored a friend of Court amicus curiae brief on behalf of a bipartisan group of four former administrators of the United States Environmental 

Protection Agency, or EPA. These four administrators—Carol Browner, Russell 

Train, Douglas Costle, and William Reilly—all shared the same goal of preserving 

thirty years of consistent approaches to protecting the ‘‘waters of the United States.’’ 

Despite their different years of Government service, different political parties, and 

even despite some disagreements with aspects of the current administration’s policies, they and I filed an amicus brief in strong support of the Bush administration’s 

position seeking to sustain these long-existing protections of America’s ‘‘waters.’’ 

The Supreme Court’s Rapanos decision, with a fragmented series of opinions and 

no single majority opinion, undoubtedly was less than the height of clarity. Still, as 

I’ll discuss more in a moment, it and still good Supreme Court precedent does create 

some clear boundaries for what is the law and makes quite clear the choices faced 

by the nation’s legislature. I’ll organize my comments into three sections: 

1) Why were the stakes in Rapanos so high; 

2) What did the Court actually do to the law in Rapanos; 

3) What are appropriate political responses to Rapanos. 
88 

I. THE STAKES IN RAPANOS

The consolidated Rapanos and Carabell cases attracted a great deal of attention, 

and for good reason. The issue in these cases could not have been more central to 

the protections and huge benefits created by the Clean Water Act. What kinds of 

wetlands and tributaries that are not ‘‘navigable in fact’’ are protected from pollution discharges, dredging or filling under the statute? In both cases, real estate developers sought permission to fill in areas characterized as protected jurisdictional 

waters by the Army Corps of Engineers. One case involved a wetland adjacent to 

a tributary of a traditionally navigable water, while the other dealt with wetlands 

separated by a manmade berm from an adjacent tributary. 

This question about which ‘‘waters’’ are protected by the Clean Water Act is the 

linchpin of the statute. Only such jurisdictional ‘‘waters’’ are subject to National Pollution Discharge permits under Section 402 of the statute, the key statutory provision protecting waters from industrial pollution discharges, including toxic effluents. 

Similarly, only such jurisdictional waters are protected by Section 404 and related 

‘‘dredge and fill’’ regulations from frequent industry and developer pressures to fill 

in wetlands or tributaries. America’s waters are much cleaner now due to broad protection of such waters from direct pollution discharges, as well as preservation of 

wetlands and tributaries for their pollution trapping, flood control, runoff storage, 

and use as breeding grounds, as well as for their heavy use for fishing, hunting and 

recreational purposes. 

The Clean Water Act’s explicit text talks about its goal of ‘‘restoring and maintaining the chemical, physical and biological integrity of the Nation’s waters.’’ If the 

Supreme Court in Rapanos had accepted the arguments of the real estate developer 

petitioners and aligned parties and had limited protection only to navigable-in-fact 

waters, most of America’s long-protected waters would have lost Federal protection. 

Huge swaths of the West, where rains are infrequent and many tributary beds sit 

empty much of the year, or wetlands and tributaries near the beginning of river basins, were at risk. Decades of environmental progress stood in the balance. 

Over thirty years of consistent regulatory treatment has protected far more than 

just rivers usable by large ships. Most importantly, in 1985 in the Riverside 

Bayview Homes case, the Supreme Court unanimously agreed that Federal jurisdiction extends to wetlands adjacent to navigable-in-fact waters. The Court reached 

this decision with heavy emphasis on the ecological and hydrological functions of 

such waters, and the need for deference to expert regulators’ judgments and statutory language reflecting the goal of protecting such waters. The Supreme Court 

agreed with regulators in Riverside that far more than just navigable-in-fact (or 

‘‘traditional navigable’’) waters are federally protected. The only exception to this 

consistent protection is the Supreme Court’s bare majority ruling in 2001 in Solid 

Waste Agency of Northern Cook County (SWANCC), where the Court held that Federal law does not protect isolated wetlands purportedly reached by Federal law due 

to migratory bird use. The Rapanos case thus presented a major opportunity for opponents of the Clean Water Act’s broad jurisdiction. In the end, however, a majority 

of the U.S. Supreme Court declined the opportunity to weaken the law’s protections. 

II. WHAT THE RAPANOS COURT ACTUALLY DECIDED

The reconfigured Supreme Court, with newly appointed Chief Justice Roberts and 

Justice Alito, produced a series of opinions in Rapanos. Sadly, there is no single majority opinion speaking for five or more justices upholding these long-established 

protections of America’s waters. We then must look at votes and opinion content to 

understand the decision. Most confusingly, five justices agreed that the Army Corps 

of Engineers had to do more to establish its jurisdiction in these two consolidated 

cases, but five justices overwhelmingly agreed with a broad protective rationale for 

jurisdiction in these cases. Five justices? Justices Kennedy in concurrence, and Justices Stevens, Souter, Ginsburg, and Breyer in dissent, strongly and explicitly disagreed with virtually all aspects of a plurality opinion penned by Justice Scalia. 

The question for all of us today, regulators, and those interpreting the law, is 

what does all of this add up to? Where is the law left? Counting heads and parsing 

Rapanos and the Court’s other major ‘‘waters of the United States’’ decisions, there 

actually remains a great deal of clarity. Most protections of the Clean Water Act’s 

long-established regulations remain. Significantly, no justice claims to overrule or 

cut back the Court’s unanimous 1985 Riverside decision. Adjacent wetlands remain 

protected due to their hydrological and ecological functions. All justices also continue to agree that the Clean Water Act protects more than just ‘‘navigable-in-fact’’ 

waters. The key regulations defining what count as ‘‘waters of the United States’’ 

were not struck down. A majority of justices also are sticking with the lack of Federal protection for isolated wetlands reached due to migratory bird use. 
89 

So how do we interpret these splintered set of opinions? As Chief Justice Roberts 

basically states in his own brief concurring opinion, through citations to earlier 

Court opinions, the narrowest opinion that shares greatest ground with other justices becomes the key opinion for future application. The key swing opinion is that 

of Justice Kennedy. Both by itself, and also if looked at with the Justice Stevens 

dissenters’ opinion with which Justice Kennedy agrees repeatedly, most of the protections long established under the statute and implementing regulations remain intact. 

Before discussing Justice Kennedy’s opinion, it is important to state clearly that 

Justice Scalia’s opinion for a plurality of justices does not represent the law. Relying 

heavily on a dictionary created over a decade before the statutory language at issue, 

Justice Scalia and his fellow plurality justices claimed that waters are federally protected only if they are relatively permanent standing or continuously flowing waters. 

This view, if the Court’s, would have constituted a revolutionary discarding of longestablished regulatory approaches, as well as a radical rejection of the twenty-yearold Riverside Bayview Court precedent (although these justices do not concede such 

an intent or effect). 

However, Justice Scalia does not have the votes to speak for the Court. Justice 

Kennedy repeatedly rejects the Scalia opinion’s approach as ‘‘inconsistent with the 

Act’s text, structure, and purpose,’’ as do the dissenters. For Supreme Court opinions to constitute law, you need to find five justices in agreement, five justices in 

assent regarding the rationale for the decision. Justice Scalia came up one vote 

short. It is only a plurality opinion because of agreement on the need for a remand. 

Justice Kennedy’s opinion is the key. Justice Kennedy picks up on SWANCC language to assert that there must be a ‘‘significant nexus’’ between wetlands or tributaries to navigable waters or waters that could be navigable for them to be jurisdictional waters subject to Federal protection. Critically important, the sorts of significant links he sets forth are many and are sensitive to the statute’s focus on biological and ecological integrity. Wetlands or tributaries can be federally protected if 

‘‘alone or in combination with’’ similar lands and waters, they ‘‘significantly affect 

the chemical, physical or biological integrity of other covered waters more readily 

understood as ‘navigable.’’’ Non-navigable tributaries are ‘‘covered’’ if alone or with 

‘‘comparable’’ waters they are significant. In addition to giving due heed to the usual 

goals of protecting water quality and fishery resources long protected and affirmed 

in Riverside Bayview Homes, Justice Kennedy further refers to ‘‘integrity’’ goals, as 

well as concern with ‘‘functions . . . such as pollutant trapping, flood control, and 

runoff storage.’’ Only if wetlands or tributaries have insubstantial linkages and effects, alone or in combination with other similar lands or waters, might they lose 

protection. Justice Kennedy’s ‘‘significant nexus’’ articulation ends up creating an 

overwhelming overlap with long-established regulatory approaches, as well as with 

the approaches articulated in the Justice Stevens Rapanos dissent for four other justices. 

Also significant is Justice Kennedy’s and the dissenters’ repeated call for deference to expert regulators’ judgments about the significance of both categories of 

waters and particular waters subject to jurisdictional determinations. Justice Kennedy clarifies the many types of uses and functions that are federally protected, but 

leaves to regulators room to assess the significance of areas that might, upon first 

examination, not look like protected waters. Such deference is notably lacking in the 

Justice Scalia opinion. 

When Justice Kennedy and the dissenters apply their approaches to the Rapanos 

and Carabell facts, both intimate that on remand Federal jurisdiction looks likely 

to be found. Justice Kennedy differs from the dissenters in asking the Army Corps 

to do a better job in establishing the nexus he articulates. 

Lastly, no five-justice majority in Rapanos cut back on Federal regulatory power 

under the Commerce Clause. The Court in granting certiorari had considered making this a constitutional decision under the Commerce Clause, a goal numerous industry, property rights and anti-regulation groups had supported in their briefs. 

Five justices, however, explicitly rejected these arguments. The Justice Scalia plurality would have used constitutional concerns to read the statute narrowly and 

limit Federal power, but only four justices adopted this view. If anything, the five 

justices rejecting a Commerce Clause attack broadened Federal power from where 

it might have gone after SWANCC. 

In the United States judicial system, five aligned votes by Supreme Court justices 

make a binding precedent. As indicated by the brief concurring opinion of Chief Justice Roberts, if the Court is splintered, the narrowest opinion, here Justice Kennedy’s, would be the key. As the Chief Justice states through his citation to Marks 

v. Whitney, the question is whether a ‘‘single rationale explaining the result enjoys 

the assent of five Justices.’’ Here, Justice Kennedy’s concurring Rapanos opinion 
90 

shares substantial overlap with the dissenters’ approaches. The dissenters would 

have deferred even more than Justice Kennedy to regulators’ judgments, but in all 

parts of their opinion, the dissenters would protect waters at least to the extent set 

forth by Justice Kennedy. They repeatedly and explicitly agree with the rationales 

for Federal protection set forth in the Justice Kennedy concurrence. Whether taken 

by itself as the ‘‘narrowest opinion,’’ or as an opinion with underlying rationales 

agreed upon by five justices, Justice Kennedy’s opinion is the key. 

III. POLITICAL RESPONSES TO RAPANOS

The next question is how the political branches should respond to Rapanos. The 

Clean Water Act’s protections have not been disastrously curtailed, as many feared. 

Justice Kennedy’s approach in fact appears to leave most protections in place. He 

and the plurality justices, however, do now demand a more rigorous regulatory 

showing of the significance of waters before they can be deemed ‘‘waters of the 

United States.’’ 

They indicated that this significance can be shown either in new promulgated regulations or perhaps policy or interpretive documents, or on a case-by-case basis. 

I believe that although the content of the law has not changed significantly, Justice Kennedy’s forcing the Army Corps to establish more authoritatively waters’ significance will have harmful effects. I anticipate more regulatory challenges by permit seekers. Administrative agencies like the Army Corps respond to many pressures, but most are risk averse and seek to avoid litigation. Justice Kennedy’s ‘‘significant nexus’’ test, while in substance mainly a modest re-articulation of the law 

and regulations as they stood, does add some new language that lawyers and permit 

seekers will isolate and seek to use. He also did require a remand in these cases, 

even though he anticipated that the Government’s assertion of jurisdiction was justifiable. With increased industry and developer pressure, the risk is that the Army 

Corps will too readily fold, declining jurisdiction where it anticipates litigation or 

a strong regulatory challenge. Vast swaths of hugely important wetlands and tributaries around the country are at risk. 

This leaves three remaining main questions. Can the Army Corps and U.S. EPA 

either in regulations or specific permitting decisions cut back on Clean Water Act 

protections long afforded? The second question is whether the legislature needs to 

act. The third concerns which response is preferable. 

I believe that only quite modest agency modifications of what ‘‘waters’’ are protected could comport with the law. Any regulations must conform to unchanged statutory language with its explicit ‘‘integrity’’ goals, the Riverside Bayview Homes decision, and Justice Kennedy’s concurring Rapanos decision. Any change in new regulations would have to confront old regulations and justify any change. Justice Kennedy’s emphasis on the statute’s integrity goals and functions such as pollutant 

trapping, flood control, and runoff storage, along with these other legal authorities, 

establish boundaries on what agencies can now do. Any significant cutting back on 

protected waters would deserve judicial rejection and legislative criticism. It would 

also surely engender litigation. Strengthening the regulatory justifications for current regulatory definitions would be more likely to withstand attack, but any 

changes of a strengthening sort would still provoke litigation challenging either new 

regulations or case-specific regulatory judgments. 

Should the legislature act, either in addition to or in lieu of regulatory action? I 

think that the legislature should seriously consider enacting into statutory law protections like those long afforded by decades of Clean Water Act regulations articulating what sorts of ‘‘waters of the United States’’ are protected. For several reasons, 

this seems a more prudent and effective approach than hoping for a regulatory fix. 

First, this is not a politically partisan issue, but a series of regulatory judgments 

that have long been retained, over three decades, by both Republican and Democratic administrations. The Bush administration in Rapanos asked the Court to uphold the Federal assertions of jurisdiction and stood by existing regulations. The 

Bush administration was joined by dozens of States, my bipartisan group of four 

former EPA administrators, and many environmental groups. This is truly a rare 

area of bipartisan agreement, and an area where the States and Federal Government are in overwhelming agreement. 

Such a legislative fix, making statutory these stable regulatory interpretations, 

would create several benefits. First, they would promote stability in the law by retaining categories and approaches deeply engrained in the law, and well known to 

Federal and State regulators and lawyers and engineers counseling the private sector. Second, by enacting a legislative fix, we could avoid virtually inevitable costly 

and confusing litigation challenging any new regulations regarding ‘‘waters.’’ Such 

a statutory amendment could also preclude the risk that the confusing Rapanos 
91 

opinions will be misread by judges, as already has happened in one trial court in 

Texas, where a judge read the Justice Scalia plurality as the key, rendering the 

Federal Government powerless to respond to an oil spill in a tributary bed. Lastly, 

the durable regulatory judgments that would now be statutory law are well grounded and tested. To protect America’s waters does require more than just attention 

to continuously flowing rivers. It would be a rare step in American law if this legislature stood by and allowed a substantial weakening of the Clean Water Act’s protection. Retention of bipartisan, well-established regulatory policy through legislative action would thus create many benefits that would be lacking with new regulatory action. 

This past year, the South and Northeastern United States have experienced catastrophic incidents where storms causing floods led to devastating and costly losses. 

These losses occurred even with the fruits of three decades of regulatory protections for wetlands and tributaries. If executive agencies or legislators now use 

Rapanos as an excuse to cut back on protection of wetlands and tributaries, future 

storms will cause even more devastating floods. Pollution control progress will 

cease. Huge portions of the United States, especially where water is scarce or where 

rivers originate, could lose Federal protection from pollution discharge requirements, as well as dredging and filling prohibitions. I hope that the Senate will take 

steps to discourage any such backwards steps. 

I thank this committee for this opportunity and would be pleased to answer any 

questions. 

RESPONSES BY WILLIAM W. BUZBEE TO ADDITIONAL QUESTIONS FROM

SENATOR CHAFEE

Question 1. Based on the opinions of the plurality and Justice Kennedy, do you 

believe isolated, intrastate, nonnavigable wetlands are now completely outside the 

geographic boundaries of Federal jurisdiction? Does this continue to be based solely 

on the Migratory Bird Rule, or is it more extensive? 

Response. I do not believe that Rapanos changed or modified the impact of the 

SWANCC ruling, nor could it. Rapanos involved different questions, but in parsing 

the SWANCC ruling Justice Kennedy necessarily had to characterize the SWANCC 

precedent. He did so, largely reiterating its core holding and language. SWANCC 

dealt with particular wetlands found to be isolated and jurisdictional only because 

they were used by migratory birds. It did not involve a case where the Army Corps 

claimed jurisdiction under other portions of its Clean Water Act regulations. How 

the Court would deal with other regulatory justifications for jurisdictional determinations could not be resolved by SWANCC, nor could it be resolved in Rapanos, 

apart from the particular settings presented by each case. 

Most significantly, Justice Kennedy’s ‘‘significant nexus’’ test offers a variety of rationales for holding waters jurisdictional, even where waters may lack a direct 

hydrological connection. He also harmonizes the still good law articulated in the 

Riverside Bayview Homes decision, which clearly stated that adjacent wetlands are 

legitimately subject to protection under the Clean Water Act and its regulations. 

Putting these passages together, I think it clear that other rationales for protecting 

‘‘waters’’ remain available under Army Corps regulations, and that SWANCC and 

Riverside Bayview Homes both remain good law that must be applied along with 

Rapanos. 

Question 2. On June 28th, the U.S. District Court for the Northern District of 

Texas ruled in U.S. v. Chevron Pipe Line Company that the defendant in the case 

is not subject to Clean Water Act or Oil Pollution Act penalties stemming from an 

oil spill because the waters in question are not subject to jurisdiction under the statutes. 

In the opinion, U.S. District Judge Sam Cummings stated he relied on 5th Circuit 

Court of Appeals precedent rather than the plurality ruling in Rapanos because the 

Supreme Court failed to provide clear guidance on which waters are jurisdictional 

under Rapanos. 

Based on your experience, how will the past precedents of the Circuit Courts 

versus the Supreme Court’s ruling in Rapanos be used to address the scope of the 

Clean Water Act? 

Response. This district court opinion is an unusual ruling that I believe will and 

should be rejected by other courts. The District Court basically found Justice Kennedy’s opinion difficult to apply, so simply reverted to the Justice Scalia plurality 

opinion that commanded only a minority of the justices, as well as to his own circuit’s pre–Rapanos precedent. As I discuss more at length in response to your third 

question, and to the first question of Senator Inhofe, all courts working with the 
92 

Rapanos case need to figure out the legal rationale assented to by at least five justices of the Supreme Court. The opinion garnering majority support was by Justice 

Kennedy, whose rationales for protecting ‘‘waters’’ was explicitly joined in most respects by the four dissenters. They would have gone even further, but they undoubtedly and explicitly stated overwhelming agreement with Justice Kennedy’s articulation of the law regarding what sorts of waters are protected by the Clean Water 

Act. Justice Kennedy also agreed with their rationales, acknowledging that in application, their approaches might differ little. Those five justices also explicitly rejected 

the Justice Scalia plurality opinion’s articulation of the law. 

The obligation of executive agencies and lower courts, and even the Supreme 

Court in future cases where it construes its own precedents, is to apply the legal 

rationale that commands a Supreme Court majority. This is often difficult work, but 

the Supreme Court’s position in our legal system and the importance of abiding by 

precedents under the doctrine of stare decisis demands nothing less. I believe the 

district court erred in turning to Justice Scalia’s plurality opinion and its own circuit’s precedents pre-dating the Court’s Rapanos decision. Lower court precedents 

must be re-analyzed in light of later Supreme Court decisions. Minority Supreme 

Court views are not the law. 

Question 3. The Supreme Court’s plurality ruling in the recent Texas redistricting 

case League of United Latin American Citizens, et al. v. Perry, et al., appears to 

raise into question the long-standing high court precedent of how to interpret plurality rulings. Rather than a controlling opinion of the Court being determined on 

the ‘‘narrowest grounds’’, it now appears that more leeway would be provided to individual justices to ‘‘mix and match’’ their views in developing a controlling opinion. 

What is your view on how plurality decisions should be interpreted based on this 

recent Texas case decision? 

Response. This question relates to the Marks precedent and the issue of how 

lower courts and executive agencies should work with cases resulting in fragmented 

decisions. I see Latin American Citizens more as illuminating and confirming the 

core logic of Marks, than changing or ‘‘call[ing] into question’’ how one deals with 

cases resulting in fragmented opinions, with none commanding a clear majority on 

all results. To answer your question requires a brief reexamination of these interrelated precedents about how one construes Court precedents. The bottom line, however, is that if one goes back to look at Marks, discussion of Marks in Grutter and 

an array of lower court decisions, and the Court’s clear majority portions of the 

Latin American Citizens opinion authored by Justice Kennedy, they all point in the 

same direction. The question is whether one can find in several opinions a shared 

rationale (or what some might call the law articulation) adding up to a majority of 

the Supreme Court. By this, I mean a shared explanation of what the law requires 

courts and agencies to do in this and future similar situations. 

In Marks, the earlier case being construed resulted in fragmented decisions, but 

common rationale strains and agreements on the relief provided were agreed to by 

five justices. Describing that setting in that particular case, Marks confirmed that 

the common strains of the five justice’s opinions added up to a majority Supreme 

Court precedent. There, in Marks, five justices ‘‘assented’’ to a common ‘‘rationale,’’ 

as well as relief provided. 

The analytical problem left unresolved by Marks is what courts should do when 

a precedent involves the less common setting of a majority that agrees on the relief 

ordered (a remand to the lower court and probably ultimately the Army Corps in 

Rapanos), but the majority articulation of a legal rationale involves a different majority of justices. 

It is the latter situation that agencies, courts and litigants confront in the 

Rapanos precedent, where the Court broke down into a 4–1–4 configuration. The 

Justice Scalia opinion was joined by only three other justices. As the Rapanos decision states, Justice Scalia’s opinion only announced the judgment of the Court, not 

an opinion for the court. In addition, Justice Scalia’s opinion explicitly rejected the 

approaches articulated by the Justice Kennedy concurrence in the judgment, as well 

as the approaches of the dissenters. Justice Kennedy, in turn, agreed only with the 

plurality opinion’s judgment that there was a need for a remand, explicitly rejecting 

the rationale stated by Justice Scalia’s plurality opinion. In contrast, Justice Kennedy repeatedly embraced the dissenters’ articulation of the law, and the dissenters 

repeatedly embraced the criteria articulated by Justice Kennedy to be applied in determining what sorts of waters are protected by the Clean Water Act. In short, five 

justices agreed on the judgment that a remand in the case was required, but five 

justices (Kennedy plus the dissenters) were in overwhelming agreement on the legal 

standard to be applied on remand and in future similar disputes over whether a 

‘‘water’’ is jurisdictional and hence subject to a permit determination under the 
93 

Clean Water Act. Five justices agreed that at least the waters protected by Justice 

Kennedy’s ‘‘significant nexus’’ test deserved protection. 

Latin American Citizens is important because it does exactly what I above and 

in my submitted testimony stated was required in figuring out Supreme Court majorities. Justice Kennedy, in Latin American Citizens, in a section commanding a 

clear numerical Court majority, characterizes the earlier Vieth case as commanding 

a majority in the Court’s refusal to hold nonjusticiable certain sorts of gerrymandering allegations. Justice Kennedy states that ‘‘a plurality of the Court in 

Vieth would have held such challenges to be nonjusticiable political questions, but 

a majority declined to do so.’’ 126 S. Ct. at 2607. What is key is the following citation. To explain the existence of what the Supreme Court calls ‘‘a majority,’’ he cites 

to his earlier opinion in Vieth concurring in the judgment, plus three dissenting 

opinions adding up to four additional votes that agreed with this conclusion. Id. 

Clearly, a majority of the Supreme Court agrees that a Court majority does not require agreement on rationale and relief. If the issue is what legal rationale is to 

be applied in the future, one must find at least five justices in agreement, regardless 

of whether they agree on the relief to be provided. 

Your question asks whether this allows one to ‘‘mix and match.’’ I would not use 

that exact characterization, but this case does confirm that the obligation of agencies and courts on remand and future similar cases is always to look and see if a 

rationale commanded the assent of five or more justices. Latin American Citizens 

does make clear that majorities do not require justices all to agree on the relief provided, just the rationale stating the Court’s law articulation. 

Question 4. In your testimony, you mention that only four justices adopted the 

view that Federal regulatory power should be cut back under the Commerce Clause? 

Would you explain for us in more detail why the majority of the Court rejected a 

Commerce Clause attack in this case? 

Response. I believe that the numerous commerce linkages implicated here, ranging from the real estate developers who sought to develop the areas found to be jurisdictional waters, to the significance of such waters for other commercial purposes 

such as fishing, hunting, tourism, recreation and municipal uses, to the importance 

of such waters for flood control, filtration, and ecosystem functions, made it a relatively easy case. In addition, the Court’s recent majority opinion in Gonzales v. 

Raich confirmed the several sorts of commercial linkages that can be constitutionally sufficient, plus it further affirmed that Commerce Clause analysis requires 

courts not to look at each challenged action in isolation, but (as stated by Justice 

Kennedy in language assented to by four other justices in Rapanos, quoting Raich), 

‘‘[W]hen a general regulatory statute bears a substantial relation to commerce, the 

de minimis character of individual instances arising under that statute is of no consequence.’’ 

Question 5. Both SWANCC and the Rapanos plurality suggested that the Corps’ 

broad interpretation of its Clean Water Act jurisdiction ‘‘pushes the envelope’’ of the 

Federal commerce power. If Congress pursues a legislative clarification of the Act’s 

reach, how far can it go without exceeding its power under the Commerce Clause? 

Response. If Congress sought to regulate isolated wetlands lacking a hydrological 

link to other waters, based on use by birds alone, it might encounter Court resistance. After all, the Court in SWANCC explained its limiting read of the Clean 

Water Act as necessary to avoid Commerce Clause problems. However, the numerous other long-established rationales for protecting wetlands, tributaries and other 

waters, many of which were reviewed by Justice Kennedy and the dissenters in 

Rapanos, involve a wide array of commerce linkages. If anything, scientific studies 

from recent decades greatly strengthen the scientific and regulatory judgment that 

many waters not usable by large ships have huge commercial significance nevertheless. In addition, because most activities that threaten wetlands and tributaries are 

undoubtedly commercial—frequently real estate, agricultural, industrial or transportation activities—most threatening activities are commercial in nature and hence 

undoubtedly reachable under the Commerce Clause. If carrying of a gun restricted 

by Federal law was the relevant activity in Lopez, or gender motivated violence was 

the relevant activity in Morrison, then surely the activities threatening to cause 

harms are likewise relevant in looking at Clean Water Act regulation. 

Question 6. What other types of Clean Water Act cases, and questions pertaining 

to Federal jurisdiction, do you believe may rise to the Supreme Court in the near 

future? 

Response. I expect that all persons and groups concerned with protecting or developing in or near possible ‘‘waters of the United States’’ will be looking closely at all 

regulatory challenges. Especially with a complicated case such as Rapanos, litigants 

and regulators will try to clarify and likely push the law in new directions. Uncer-
94 

tainty spawns litigation. I am uncertain which sorts of cases might end up in the 

Supreme Court; I expect the Court will allow lower courts and litigants to work with 

and perhaps clarify the implications of Rapanos before they would grant a petition 

for a writ of certiorari again in a Clean Water Act case. 

Question 7. You mention in your testimony that a legislative fix to clarify the categories of ‘‘waters’’ covered by the Clean Water Act is necessary and the most prudent course of action. Are there any categories of waters currently covered by Federal regulations that should not be covered in a future legislative fix? 

Respose. My answer to question five largely provides my answer. Short of drafting 

legislating that seeks affirmatively to challenge the Supreme Court by reasserting 

jurisdiction in the limited circumstances found excessive in SWANCC, I believe that 

abundant science and economic analysis would support efforts to protect one of 

America’s most precious resources, its waters. 

Question 8. Since the Rapanos ruling, a number of different stakeholders have 

suggested that Congress should legislate in order to clarify what is the extent of regulatory jurisdiction to protect wetlands. One current proposal is the Clean Water 

Authority Restoration Act, S. 912, which would provide a broad statutory definition 

of ‘‘waters of the United States.’’ Some say that the statutory definition in that bill 

would conform the Clean Water Act to the administrative definitions used by the 

Corps and EPA priority to the SWANCC decision, but others say that the bill is 

even broader than the Corps and EPA rules. What is your interpretation of the definition in that legislative proposal? 

Response. I have not seen any of the versions of S. 912 for several months, so 

I may be commenting on a draft that has been supplanted by another. Based on 

the April 27, 2006 draft I saw this summer, it struck me as a fair attempt to make 

statutory the approaches and rationales used during the past several decades 

through Clean Water Act regulations, and underlying judgments leading to and explaining those regulations. Its key definition of ‘‘waters of the United States’’ is virtually identical to the interpretation long considered settled, as reflected in case decisions, textbooks, and treatises up until 2001, when SWANCC and now Rapanos 

created regulatory uncertainty. 

RESPONSES BY WILLIAM W. BUZBEE TO ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question 1. Mr. Buzbee, you testified that the law of the land is now the opinions 

of Justice Kennedy and Justice Stevens. You argued to us that those five Justices 

‘‘assented regarding the rationale for the decision.’’ The only significance to any 

agreement between Scalia and Kennedy is the vote on the remand. 

Would you agree that the plurality and Justice Kennedy voted to determine the 

result of the decision that the case was remanded back the 6th Circuit? Would you 

also agree that the plurality and Justice Kennedy concurred in the judgment-that 

the case was remanded to the 6th Circuit? 

Response. For my far more complete response to this question and question two, 

please see my answer to question three of Senator Chafee. In brief, I believe that 

the key opinion articulating the rationale of five justices of the Supreme Court is 

that of Justice Kennedy. Justice Kennedy agreed with the specific relief ordered by 

the Court a remand to the court below but otherwise he and the Justice Scalia opinion disagreed on virtually every point. The result, in the sense of the judgment regarding relief, had Justice Kennedy’s agreement, but the result in the case articulating the legal rationale for application by the court below, executive agencies in 

the future, and lower courts, is that of Justice Kennedy. Five Justices agreed with 

his rationale, although four would have preferred a more expansive definition consistent with the last three decades of regulatory approaches. 

Question 2. Would you please describe the basis for your legal opinion, in particular how it conforms to the long established Supreme Court Marks decision and 

subsequent precedent whereby the Court stated ‘‘[w]hen a fragmented Court decides 

a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’’ (Marks v. U.S. 430 

U.S. 188 (1977)) . 

Response. My response to this question is provided at length in response to question three of Senator Chafee. 
95 

RESPONSES BY WILLIAM W. BUZBEE TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. Can you explain whether you believe this decision will affect parts of 

the Clean Water Act other than the wetlands program and if so, why? 

Response. Yes, any interpretation of what count as ‘‘waters of the United States’’ 

will influence not just efforts to protect wetlands and their tributaries from filling 

activity, but also what sorts of waters are protected from point source discharges 

from industrial and municipal sources regulated by Section 402 of the Clean Water 

Act. For this reason, interpretations of Rapanos are of huge importance to all efforts 

to protect America’s waters. 

Question 2. Are you familiar with the oil spill case from Texas that is, I believe, 

the first to interpret the Rapanos Carabell decision and do you have any thoughts 

on the implications of this case for agency efforts to enforce the Clean Water Act? 

Response. Yes, as I explained at greater length in response to question two of Senator Chafee, this case appears unsound and contrary to Supreme Court majority law 

and the usual obligation of lower courts to apply that law. If that decision’s approach becomes more widely accepted, it would turn Rapanos into a huge loss for 

the environment. If intermittent streams and rivers are no longer Federally protected from accidental or even intentional pollution, that would constitute a massive 

undercutting of long-established interpretations of the Clean Water Act. Fortunately, I believe that this opinion is in error and expect it will be reversed on appeal 

and rejected by other courts. 

Question 3. In his separate concurring opinion, Chief Justice Roberts says that, 

because there is no opinion commanding a majority, ‘‘Lower courts and regulated 

entities will now have to feel their way on a case-by-case basis.’’ This seems to indicate that there is no binding precedent set by this decision. What do you interpret 

this ‘‘case-by-case’’ statement to mean? 

Response. I am uncertain about what Chief Justice Roberts meant. It is important 

to note that the Chief Justice did not command a Court majority in his brief concurrence. In fact, no other justice joined his opinion. If he was just saying that lower 

courts and agencies will now need to work with a confusing decision, he is probably 

making an accurate prediction; the ‘‘significant nexus’’ test does require case-by-case 

analysis. If he was expressing the view that because there is no single majority 

opinion, that there therefore is no majority Court rationale for lower courts to apply, 

then I find it puzzling. As discussed in response to question three of Senator Chafee, 

Marks and Latin American Citizens, and the fragmented decisions each discuss, together make clear that a majority assenting to a rationale can and often is constructed by examining several opinions together, looking for their commonalities. 

Much as several opinions in Vieth added up to what a Supreme Court majority in 

Latin American Citizens called a majority view, Justice Kennedy’s opinion plus his 

overwhelming commonalities with the dissenters in Rapanos add up to a majority 

view. 

Question 4. In his testimony, Mr. Kisling argues that the test for jurisdiction 

should be the commonalities between the Scalia and the Kennedy opinions. Do you 

believe that the Agencies are required to rewrite their regulatory definitions of 

‘‘waters of the US’’ in response to this Supreme Court decision or can the agencies 

continue to implement the law under their existing regulations? 

Response. First, I do not think Mr. Kisling’s view is supportable. When two opinions explicitly disagree with each other, rejecting virtually all of each other’s articulations of the law, I do not believe any precedents support joining them together to 

claim a majority view. 

Second, while several opinions expressed the hope that regulatory definitions of 

‘‘waters of the United States’’ would be amended, this was a not a challenge to those 

regulations, plus no opinion claimed to be striking down existing regulations. Many 

aspects of those regulations were not at issue in Rapanos, plus Rapanos and its 

companion case, Carabell, were ‘‘as applied’’ challenges. Absent legislative or regulatory correction, agencies will need to construe and apply their regulations consistent with Rapanos, but there is no Court mandate to amend the regulations. 

Question 5. You testified that it would be helpful, in your opinion, for Congress 

to clarify the law. Can you elaborate on your views about the Clean Water Authority 

Restoration Act and do you believe that it would reaffirm and clarify the law? 

Response. Yes, as stated above in response to questions seven and eight of Senator Chafee, I do believe that the version of S. 912 I’ve read would reaffirm and 

clarify the law by restoring the law to where it stood before the law was somewhat 

unsettled by SWANCC and now Rapanos. 
96 

Question 6. In the Department of Justice testimony, Mr. Cruden explained that 

the Department believes that waters will fall under the Clean Water Act jurisdiction 

if those waters meet either the jurisdictional tests set forth by Justice Scalia or Justice Kennedy’s opinions. Can you comment on this interpretation? 

In a limited sense, I agree. If you picture the three major opinions that of the 

Justice Scalia plurality, that of Justice Kennedy concurring in the judgment, and 

that of Justice Stevens and his fellow dissenters as each setting forth a percentage 

of waters that would be protected, Justice Scalia would protect a quite small percentage of waters, typically only those permanently standing or continuously flowing. Justice Kennedy would protect far more under his ‘‘significant nexus’’ test. The 

dissenters largely agree with Justice Kennedy in explaining what sorts of waters are 

protected by the Clean Water Act, but they probably would go even further, mainly 

due to their greater willingness to defer to regulators’ assessments about what 

waters deserve protections. This all means that probably nine justices would protect 

at least the waters protected by the Justice Scalia opinion, five would protect those 

falling under Justice Kennedy’s test, and four would be protected under the dissenters’ views. For this reason, Mr. Cruden is correct. Frankly, however, I find it 

hard to imagine waters that would be protected by Justice Scalia and not also be 

protected by Justice Kennedy. In addition, I should add that I am unaware of any 

sound scientific or empirical basis for Justice Scalia’s view of how and why waters 

should be protected. The only risk in Mr. Cruden’s statement is that one must be 

clear that the extensive limitations on protections articulated by the Justice Scalia 

plurality do not command a Court majority. 

Question 7. In the wake of the SWANCC decision, how many States stepped in 

and adopted laws to make sure that the so-called ‘‘isolated’’ waters at issue in that 

case were protected by State law? How many did not? 

Response. I unfortunately have not seen or conducted such a survey. My impression from conversations with regulators and others around the country is that few 

States have stepped into the breach and created new protections once Federal law 

was limited. 

RESPONSES BY WILLIAM W. BUZBEE TO ADDITIONAL QUESTIONS FROM

SENATOR MURKOWSKI

Question 1. You suggested in your written testimony that either the executive or 

legislative branch could use Rapanos ‘‘as an excuse to cut back on protections of 

wetlands and tributaries’’ which would allow future storms to cause even more devastating floods. But any areas with a ‘‘significant nexus’’ with navigable waters are 

protected under Rapanos. Are you suggesting the wetlands that protect coastal Louisiana, do not have a ‘‘significant nexus’’ with navigable waters? 

Response. No, I did not mean to imply such a meaning. I only meant that interpretive uncertainties potentially generated by Rapanos could lead policymakers or 

interest groups eager to cut back on the Clean Water Act’s protections to use 

Rapanos as a catalyst to weaken existing law. Also, agencies wary of litigation 

might err on the side of avoiding conflict, and decline jurisdiction where they should 

find it. A Court majority in Rapanos agrees that ‘‘waters’’ can be protected for an 

array of reasons, including their importance for flood control, pollutant trapping, 

and runoff storage. Those rationales and many others under Army Corps regulations should leave coastal Louisiana wetlands subject to Federal protection under 

the Clean Water Act. 

My concerns were prompted in part by a July 5 interim communication by the 

Army Corps to regulators in the field. That ‘‘Interim Guidance’’ instructed that until 

the implications of Rapanos were assessed, regulators should not make jurisdictional determinations or refer matters to the Department of Justice for enforcement 

actions unless the waters at issue fall under Section 10 of the Rivers and Harbors 

Act. Section 10 protects far fewer waters than Section 404 of the Clean Water Act 

and its regulations. Given the numerous Army Corps regulations regarding ‘‘waters’’ 

not even challenged in Rapanos and the 2001 SWANCC ruling, plus the overwhelming protections retained by Justice Kennedy’s opinion, I find this interim communication puzzling and contrary to the obligation of all executive agencies to abide 

by Supreme Court decisions, as well as their own regulations. 

Question 2. You’ve stated that ‘‘vast swaths of hugely important wetlands and 

tributaries around the country are at risk,’’ and that the Corps of Engineers may 

decline to protect them. Do you personally agree or disagree with the Supreme 

Court’s view that some wetlands do not come under the Clean Water Act? How 

would you distinguish such exempted areas? 
97 

Response. I think that even the Army Corps regulations and interpretive documents given a constraining read in SWANCC do not claim to make all wetlands 

Federally protected. I think that these long-standing regulations interpreting 

‘‘waters of the United States,’’ as well as underlying regulatory materials explaining 

and further fleshing out those regulations, have been long- tested and have a sound 

basis. In this assessment, I note that my view is shared by the Bush administration, 

which argued for retaining the regulatory protections challenged in Rapanos, as well 

as over 30 States that also joined briefs in support of the administration’s defense 

of these cases and these long-standing regulations. In addition, scientific studies 

concerning the importance of wetlands and tributaries seem to strengthen the regulatory basis for protecting such waters. It remains a sound regulatory design for 

Federal jurisdiction to be broad, but allow the Army Corps to grant permits where 

an activity does not pose a threat to such waters. In addition, nationwide permits, 

mitigation, and compensatory banking provide further flexibility in this regulatory 

scheme. 

STATEMENT OF CHUCK CLAYTON, THE IZAAK WALTON LEAGUE OF AMERICA

Mr. Chairman, members of the committee, my name is Chuck Clayton. I am the 

immediate Past National President of the Izaak Walton League of America, dedicated since 1922 to science-based conservation policy. The League has over 40,000 

members and supporters, consisting of avid sportsmen and women, and others who 

simply enjoy the outdoors. We have 20 State divisions and more than 300 local 

chapters across the nation. The League advocates common sense conservation and 

I am proud to continue that tradition with my remarks today. My comments also 

represent the views of millions of Americans who belong to the many organizations 

who have joined the Izaak Walton League in submitting this testimony, including 

American Sport fishing Association, BASS/ESPN Outdoors, Berkeley Conservation 

Institute, Trout Unlimited. 

As a landowning resident of South Dakota, and an avid hunter and angler, I appreciate this opportunity to share my views with the committee, and to illustrate 

just how the recent U.S. Supreme Court decision in the joint cases Rapanos and 

Carabell is affecting wetland and stream protection where it matters most, on the 

ground. Frankly, the benefits of extending comprehensive protections to waters such 

as non-navigable headwater streams and seasonally dry potholes are numerous and 

undeniable. Among their many functions, these various forms of waters improve 

water quality by retaining and recycling nutrients such as nitrogen and phosphorus, 

which when left unchecked, lead to oxygen exhausting algae blooms and dead zones. 

Wetlands also trap tremendous amounts of sediment, leading directly to clearer, 

healthier downstream waters, that otherwise would be choked by sunlight depleting 

sedimentation; and when left intact, wetlands lessen the devastation caused by 

floods and storms, like that which we so painfully witnessed during the Gulf Coast 

storms of 2005. 

In addition to the important water quality functions that all forms of wetlands 

and headwater streams play, they also provide critical habitat for many species of 

fish and wildlife, including numerous species that are listed as threatened and endangered. Salmon and trout use cold headwaters for spawning, these streams may 

often be intermittent or ephemeral, and as such their protection under the Clean 

Water Act was left open for debate by the Supreme Court’s decision in Rapanos. 

These ephemeral and intermittent streams make up nearly 60 percent of the 

streams in the United States, losing them would be yet another barrier to restoring 

native runs of trout, salmon, and shad. 

Other important game fish, such as largemouth bass and northern pike, use varied types of wetlands and headwaters for many of the same purposes. Each specific 

type of wetland provides a certain set of conditions, including the proper food and 

cover, necessary for the survival of that specific species of fish. By temporarily storing water, even isolated wetlands ensure that downstream flows remain both cool 

and relatively constant, critical elements for healthy fish populations, but also important elements in the fight to stave off the negative effects of drought. 

The thousands of small wetlands that make up the prairie pothole region of the 

Dakotas, often referred to as North America’s ‘‘duck factory,’’ annually support four 

million pairs of waterfowl that depend on high quality wetlands for nesting and the 

rearing of their young. The Supreme Court’s decision in Rapanos leaves the status 

of virtually all prairie potholes in limbo. Losing these wetlands to development 

would put the future of these ducks in grave peril. Many other species are also wetland dependent. For example, deer, pheasants, quail, and many songbirds, as well 
98 

as reptiles and amphibians such as turtles and frogs depend on healthy wetlands 

as a key component of their habitat during the year. 

The benefits of wetlands are important for people, too. Thirty-four million anglers 

and 13 million hunters rely on the clean water and healthy fish and wildlife populations that isolated wetlands support. These sportsmen and women contribute directly to the sustained economic growth and viability of communities across the 

United States, to the tune of about $70 billion annually. The economic benefit stems 

not just from hunters and anglers, but also from bird watching, one of the most popular and fastest growing pastimes in the Nation, which pumps millions more into 

local economies. Outside of recreation, wetlands are also vital to three-fourths of 

America’s commercial fish production, which is worth about $111 billion. If wetlands 

are left unprotected from agricultural, residential, and commercial development, the 

economic loss would be staggering. 

Despite the benefits, the protection of wetlands and many other waters has been 

bogged down by bureaucratic misinterpretations, allowing important Clean Water 

Act determinations to be made on an ad hoc basis. While the Administration did 

a good job of defending protection of wetlands and streams in the Rapanos case, 

they have not sufficiently led the way for consistent, vigorous use of the Clean 

Water Act to protect these vital resources. For instance, over a 6-month span in 

2005, in the Omaha region of the U.S. Army Corps of Engineers, which includes 

parts of six States, including my home State of South Dakota, the corps deemed that 

at least 2,676 acres of wetlands, lakes, streams, and other waters fell outside the 

scope of the Clean Water Act. This approach to protecting our most important water 

resources is just not working. 

The recent Supreme Court decision in Rapanos, further muddied the waters, providing little clarification to agency officials for how they should proceed to protect 

these important waters and providing no meaningful direction on how the Clean 

Water Act is to be applied. The decision fails to provide what Government land 

managers and environmental regulators so desperately need: a clear formula for 

protecting our valuable water resources. Protection should be the rule, not the exception. The conservation of our most important waters now depends on the leadership of Congress to make the Clean Water Act more explicitly inclusive of all wetlands, streams, and lakes. The Environment and Public Works Committee is currently considering legislation that would plainly codify the protection of these key 

resources. The Clean Water Authority Restoration Act (S. 912) would make real 

progress towards definitively granting important protections to water resources. 

Congress must pass this legislation. We in the conservation community believe that 

the Clean Water Act was written to be applied in the broadest fashion, to ensure 

that all waters of the United States are protected by the power of law. All wetlands 

and streams, no matter how isolated or intermittent, warrant strict protections 

under the Clean Water Act, because even the most isolated wetlands are part of an 

intricate hydrological web, upon which entire ecosystems, including humans, rely. 

Mr. Chairman, this concludes my remarks. Again, on behalf of the aforementioned 

conservation organizations, I would like to thank you for this opportunity to share 

the views of the Izaak Walton League and our partners. I would be happy to respond to any questions that the members of the committee may have. 

RESPONSES BY CHUCK CLAYTON TO ADDITIONAL QUESTIONS FROM

SENATOR CHAFEE

Question 1. Your description of the prairie pothole region of the Dakotas as North 

America’s ‘‘duck factory’’ provides quite a vivid image as to the number of waterfowl 

that utilize these areas for nesting and the rearing of young. Given the Supreme 

Court’s lack of clarity in Rapanos regarding Federal jurisdiction over isolated wetlands, why is it important that the Federal Government retain Federal jurisdiction 

to protect prairie potholes? Is it possible for State laws in the Dakotas to fill the 

gap if Federal protections are removed? 

Response. President Theodore Roosevelt adamantly maintained that the States 

need Federal help to fulfill State goals, and this observation is truer than ever in 

today’s increasingly interconnected world. In the case of natural resources that are 

relied upon by several States, Federal regulation is necessary to ensure that the interests of all States are upheld. Though ‘‘isolated’’ wetlands may not physically cross 

State lines, they provide services that extend far beyond the area in which they are 

located. The draining of a prairie pothole in one watershed may have repercussions 

that extend to neighboring watersheds, and even across State lines. 

The Association of State Wetland Managers (ASWM) notes that ‘‘Thirty-six States 

have limited or no wetland regulations applying to isolated wetlands. These States 
99 

either lack State statutory enabling authority or, if they have authority pursuant 

to water quality statutes, have not established wetland permitting systems due to 

lack of funds, staff, perceived need and/or political will.’’ Since the SWANCC decision, most of the wetlands reviewed by the corps have been found to be exempt from 

the Clean Water Act. For example, the corps found that the affected wetlands in 

North Dakota were exempt in 69 of the 77 projects it has reviewed since March 30, 

2004. Wetlands were determined to be exempt in 54 out of 125 cases reviewed in 

South Dakota since April 27, 2004. (Environmental Integrity Project, 2006) 

Question 2. The Supreme Court’s decision in Rapanos appears to raise into question Federal jurisdiction over isolated wetlands as well as some categories of ephemeral and intermittent streams. How prevalent are these types of wetlands and 

streams in South Dakota? What would happen if Federal protections for these areas 

were removed? 

Response. According to the SD Dept. of Game Fish and Parks, ‘‘shallow, temporary and seasonal wetlands comprise 92 percent of all wetlands in the [prairie 

pothole region] of eastern South Dakota.’’μ Further, in a study of Clark County, 94- 

95 percent of wetland basins, or about 98 percent of the wetland area in the study 

region, could be considered ‘‘isolated’’ and therefore at risk of losing all Federal 

Clean Water Act protections.μIf Federal protections were removed, there are no 

State regulations in place to safeguard this acreage from the threats of development 

and agriculture. 

‘‘Potential real losses of wetlands in South Dakota resulting from loss of CWA are 

difficult to predict, but some experts (Bismark USFWS HAPET office staff) estimate 

that substantial losses of isolated temporary wetlands could lead to a 50% decrease 

in duck production in the Prairie Pothole Region.’’ (SD Dept of Game, Fish and 

Parks, 2003) 

The U.S. Fish and Wildlife Service estimates that each acre of small wetland reduces flood damage to roads by $6.11 per year. If one applies this value to all eastern South Dakota wetland basins less than one acre in size (73 percent), the total 

flood prevention value related to roads totals over $4 million. Each acre of small 

wetland also provides $29.23 worth of flood damage protection to agricultural land 

per year. (SD Dept of Game, Fish and Parks) 

Question 3. There is a great deal of difference between wetlands, streams and 

tributaries in the East versus the West. Do you find the Supreme Court’s decision 

in Rapanos unfairly limits Federal protections over wetland and stream areas in the 

West versus the East? How should this be remedied? 

Response. Wetlands, streams and tributaries differ not just over large continental 

regions, but also locally, so that diverse types of streams and wetlands can occur 

within the same watershed. Discerning the type of wetlands present is a task best 

performed by qualified hydrologists, because even the smallest wetlands can provide 

immense ecological benefit, benefits which, if lost, may prove to be irreplaceable by 

any man-made alternative. The Clean Water Act was written to be necessarily 

broad, so that it could be molded to cast the widest possible net of protection, a net 

of protection that includes all waters of the United States,’ a designation not beholden to regional bias. While many of the wetlands in the East may be easily discernible, like the Florida Everglades and the marshes of the Chesapeake Bay, the 

often less clearly delineated wetlands of the West deserve equal protections, especially given that region’s perennial water issues. All wetlands, no matter how 

ephemeral, are interwoven as part of an intricate hydrological web, clearly constituting a significant nexus to those qualified to make such distinctions. ‘‘All waters 

of the U.S.,’ defined as broadly as possible, should be the benchmark of protection 

under the Clean Water Act. 

As a property owner and sportsman in South Dakota, what is your experience 

with the Federal wetlands permitting process? In your opinion, has it been a fair 

and streamlined process, or does it place onerous burdens on property owners in 

your region? 

The Federal wetlands permitting process in South Dakota, as pointed out in my 

testimony, has not been very effective in protecting our wetlands. It is cumbersome 

and as the GAO study pointed out, not been much of a deterrent to wetland drainage (GAO Report GAO-05-870). At least these projects that are subjected to the permitting process have been put through an environmental and public interest review 

to determine what damages such activities might create. Allowing such activities to 

proceed without any review will provide economic benefit to a few at the potentially 

great expense to others. I personally feel that if we would appoint one agency to 

be the lead on wetland determinations, while adhering to the Memorandum of 

Agreement (MOA), signed by the Corps, EPA and USF&W on wetland issues, all 

stake holders would be treated more fairly. 
100 

RESPONSES BY CHUCK CLAYTON TO ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question 1. Justice Kennedy’s test would have the corps make decisions on a caseby-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable 

tributaries. Some of your members must be private landowners. Do you not agree 

that they would want more certainty than provided in the Kennedy test? 

Response. Many of our members are landowners. We feel the Kennedy test is the 

result of Rapanos. We also know that ‘‘all waters of the U.S.’’, as described in the 

CWA, are important to all stake holders in this issue. The CWA, as passed by congress, has been weakened and muddied by Supreme Court decisions, administrative 

rule making and other governmental organizations trying to apply their spin on the 

meaning of the English language. The CWA was passed by the congress to avoid 

the ‘‘pay me know or pay me later’’ scenario, of the people in the upper reaches of 

watersheds polluting our waters, and later users having to pay billions of dollars 

to clean the water up for uses like bathing and drinking. If we want more certainty, 

congress needs to pass the Clean Water Authority Restoration Act (S. 912). The 

CWA was not passed by the EPA, the Corps, the administration or the USF&W. 

It is a law passed by congress, and the congress needs to clarify it. 

Question 2. You mentioned that you do not believe States ‘‘would take care of wetland delineations and wetland problems.’’ As an example you point to a navigable 

river that runs from ‘‘almost the North Dakota border down to the southern border 

of South Dakota, dumps into the Missouri River and continues down to the Gulf. 

There is no way one single State should have that kind of jurisdiction over wetlands.’’ Most discharges into the river would most likely be governed by Section 402 

of the Clean Water Act. Both South Dakota and North Dakota have been delegated 

authority by EPA to implement and enforce Section 402, thus overseeing discharges 

into the river. Do you disagree with the delegation of this authority to the States? 

Resource issues aside because I know that is a problem that must be addressed, if 

the States can regulate all other pollutants into a river that flows between States, 

why wouldn’t we trust them to also regulate wetlands? 

Response. States that have been delegated Section 402 Point Source programs 

were required to first demonstrate that their State programs are at least as protective as the Federal Clean Water Act. Thus, delegation of this important program 

to States was accomplished while still retaining a Federal ‘‘floor’’ for protections that 

applied in all States and territories. States can establish stricter standards, but 

none can establish weaker standards. Only two States have been delegated Section 

404 authority, New Jersey and Michigan. To be granted this delegation, both States 

had to prove that their dredge and fill permitting programs were at least as protective as Federal law. 

Because most State laws evolved to work with, rather than in place of, Federal 

laws, only a third of States have independent dredge and fill protections and most 

are far less protective than Section 404. Eliminating Clean Water Act protections 

for even some wetlands, streams, and other waters, eliminates any Federal ‘‘floor’’ 

in protections and leaves waters subject to a patchwork of State, regional and local 

protections. This is important because degradation caused by dredge and fill activities can have profound impacts downstream, just as direct discharges of pollutants 

can. Dredge and fill activities frequently release pollutants formerly held in bottom 

sediments, allowing these pollutants to migrate far downstream and be taken up by 

aquatic life. Additionally, fine sediment particles can migrate far downstream, 

smothering fish spawning habitat and increase water filtration costs. 

Changes in section 404 jurisdiction would diminish use of one tool used by many 

States to control activities affecting wetlands. Most States have utilized CWA section 401 water quality certification programs in addition to or in lieu of specific regulatory statutes. But, where Federal jurisdiction does not exist and no section 404 

or other Federal permit is required, section 401 certification also is not required and 

thus is not available as a tool for the State to evaluate the proposed activity. State 

programs supplement but do not substitute for Federal jurisdiction. Additionally, 

State regulations do not generally apply to Federal lands. Some of the States with 

the largest isolated wetland acreages provide little or no State protection, including 

Alaska, Louisiana, Texas, North Dakota, South Dakota, South Carolina, North 

Carolina, Georgia, Nebraska, Kansas, and Mississippi. Though States are currently 

afforded the opportunity to assume section 404 program authority, only two States 

(Michigan and New Jersey) have taken advantage of this—partly due to the resource burden that would be required. (CRS Report-Feb 2001) 

Question 3. Mr. Clayton, in your testimony you mention that the Corps determined 2,676 acres of wetlands as non jurisdictional in 6 States over a 6 month pe-
101 

riod. On what basis did the corps rule they were not wetlands? How many wetland 

acres did the Corps protect during that same time frame? 

You present this number as means to show how many areas you believe to be wetlands were developed. However, from 2002 through 2004 through USDA wetland 

protection programs 1,653,000 acres of wetland areas have been protected. How 

would you define the jurisdictional boundaries or is it your view that every possible 

area in the country that may receive a very limited amount of rainfall should be 

a regulated by the Federal Government? 

Response. According to the corps, it evaluates more than 85,000 permit requests 

annually. Of those, more than 90 percent are authorized under a general permit. 

Less than 0.3 percent of the remaining permit applications are ultimately denied. 

From January 2004 until May 2006, the Corps made 2,794 non-jurisdictional determinations in the 15 most affected States. These determinations opened between 

16,000 and 23,500 wetland acres to development. Approximately 75 percent of these 

non-jurisdiction determinations made by the Corps apply to wetland areas which 

are, or could be, habitat for migratory bird species and 12.5 percent apply to endangered species habitat.μ(Environmental Integrity Project, 2006) 

The corps has received several requests from environmental groups for information on all non-jurisdictional determinations made by its 38 districts. GAO found 

that only 5 percent or less of the files in four of the five districts contained a detailed rationale, while 31 percent of the files in the fifth district contained such a 

rationale. The percentage of files that contained no rationale whatsoever as to why 

the Corps did not assert jurisdiction ranged from a low of 12 percent to a high of 

49 percent in the five districts. The remaining files contained partial rationales. 

(GAO Report GAO-05-870) 

Following the Supreme Court’s January 2001 ruling, the Corps is generally not 

asserting jurisdiction over isolated, intrastate, non-navigable waters using its remaining authority. Since January 2003, EPA and the Corps have required field staff 

to obtain headquarters approval to assert jurisdiction over waters based solely on 

links to interstate commerce. Only eight cases have been submitted, and none of 

these cases have resulted in a decision to assert jurisdiction. According to project 

managers, they are reluctant to assert jurisdiction over these kinds of waters because of the lack of guidance from headquarters and perceptions that they should 

not be doing so. (GAO Report GAO-05-870) 

According to the latest USFWS Status and Trends of Wetlands Report, there has 

been an overall gain of 191,750 wetland acres from 1998 to 2004. However, as the 

report itself acknowledges, most of this gain was in the freshwater pond category, 

which includes ornamental ponds, golf course hazards, and aquaculture production 

facilities. ‘‘Without the increased pond acreage, wetland gains would have failed to 

surpass losses during the timeframe of this study. The creation of artificial freshwater ponds has played a major role in achieving the national wetland quantity objective.’’ (Dahl, 2006) Yet deep-water systems are unable to provide the same functions and values offered by vegetated wetlands, which we are continuing to lose at 

a rate of 82,500 acres each year. 

RESPONSES BY CHUCK CLAYTON TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. In your testimony you talked about the impact of hunting and angling 

on local economies. If the excise taxes traditionally spent on conservation were no 

longer available, I expect those dollars would then have to come from some other 

source. What would be the impact on the Federal budget, and what other sources 

of funds would you expect local communities to turn to as a replacement? 

Response. According to the U.S. Fish and Wildlife Service, the excise tax on hunting gear (commonly referred to as the Pittman-Robertson tax) generates an average 

of $200 million each year, a total of $4.2 billion since the tax was enacted in 1937. 

These dollars are spent to conserve the fish and wildlife habitat that hunters and 

anglers rely on to pursue their sport, but other outdoor enthusiasts, who pay no 

such tax, also enjoy the conservation benefit of sportsmen’s dollars. If wetlands continue to be drained, filled, and polluted, hunters and anglers across the country will 

lose interest in pursuing vanishing fish and game that no longer have the habitat 

necessary to maintain healthy populations. Government at all levels would be unable to bridge this gap in funding for conservation, and the protection of our fragile 

natural resources would be in jeopardy. This exodus of hunters and anglers from 

the landscape will leave a wide gulf in the local economies that rely on hunters and 

the $30 billion they spend on their sport each year, spending that supports a million 
102 

jobs nationwide. The economic benefit of hunting and angling is real; the economic 

loss of hunters and anglers would be devastating. 

Question 2. Based on the track record of the agencies implementing previous Supreme Court decisions, do you think the implementation of the Rapanos—Carabell 

decision should be left to the Administration to do a rulemaking? 

Response. The Clean Water Act is one of Congress’ most profound environmental 

achievements, and improving it should not be left to any Presidential administration. The current Administration has illustrated that it is comfortable protecting 

golf course ponds and sewage lagoons as functioning wetlands, while at the same 

time allowing high-value ephemeral and intermittent wetlands to fall to the bulldozer and the plow; a short-sighted philosophy that encourages ‘‘wetland’’ quantity 

at the cost of wetland quality. The Court’s decision implies the need for Congressional clarification of the Clean Water Act, in order to more explicitly define precisely what constitutes a ‘‘a water of the United States,’’ and thereby what wetlands 

deserve protection. Only Congress can hold robust hearings on these important 

issues in order to gather input from stakeholders and concerned citizens alike, and 

in the end, only Congress can declare its original intent. This is exactly what would 

be accomplished by passage of the bill, you and Senator Feingold introduced, the 

Clean Water Authority Restoration Act. 

Question 3. What do you think of the proposition that it can be left largely to the 

States to determine which streams and wetlands should be protected from pollution, 

and based on your experience, would this be a workable approach? 

Response. No. In the case of natural resources that are relied upon by several 

States, Federal regulation is necessary to ensure that the interests of all States are 

upheld. Though ‘‘isolated’’ wetlands may not physically cross State lines, they provide services that extend far beyond the area in which they are located. The draining of a prairie pothole in one watershed may have repercussions that extend to 

neighboring watersheds, and even across State lines. 

State and local wetlands regulatory programs supplement but do not substitute 

for Federal jurisdiction. Additionally, State regulations do not generally apply to 

Federal lands. Some of the States with the largest isolated wetland acreages provide 

little or no State protection, including Alaska, Louisiana, Texas, North Dakota, 

South Dakota, South Carolina, North Carolina, Georgia, Nebraska, Kansas, and 

Mississippi. The Association of State Wetland Managers (ASWM) notes that ‘‘Thirtysix States have limited or no wetland regulations applying to isolated wetlands. 

These States either lack State statutory enabling authority or, if they have authority pursuant to water quality statutes, have not established wetland permitting systems due to lack of funds, staff, perceived need and/or political will.’’ 

Question 4. Some of the other witnesses today noted that the Administration did 

not change the regulations defining the ‘‘waters of the US’’ following the Supreme 

Court’s 2001 Clean Water Act decision. Did your organization or the other hunting 

and fishing advocacy groups you are representing today take a position on that rulemaking proposal? 

Response. Yes. Following the Supreme Court’s decision in 2001, the Izaak Walton 

League and many other hunting and fishing advocacy groups urged the U.S. Environmental Protection Agency to provide additional guidance on key terms in the decision, such as significant nexus, tributary and adjacent, in order to insure that the 

narrow legal interpretations embodied in the SWANCC decision did not get lost as 

it filtered down to the field offices of the Corps and EPA. Following the 2003 release 

of the administration’s Advance Notice of Proposed Rulemaking (ANPRM), however, 

the League criticized the Corps and the EPA for suggesting a retreat from Federal 

Clean Water Act jurisdiction that goes considerably beyond that required by the Supreme Court’s decision. The League published an in-depth legal analysis of the 

SWANCC ruling, which determined that the decision’s limited scope left intact the 

broad regulatory authority of the EPA and the corps to protect most of the waters 

of the U.S.—including many of the so-called ‘‘isolated waters.’’ Our position remains 

that Congress clearly intended the Clean Water Act to cover all waters of the 

United States. In order to keep the Act’s promise of clean waters for all communities 

across the nation, Congress must take up the responsibility for safeguarding Federal 

CWA protections for all waters of the United States. 

In addition, more than 99 percent of the 135,000 comment letters and 39 of 42 

States that commented on the ANPRM, opposed the proposed weakening of Federal 

Clean Water Act protections. 

Question 5. Do you believe that the Administration is required to rewrite their 

regulatory definitions of ‘‘waters of the US’’ in response to the Rapanos—Carabell 

decision, or can the agencies continue to implement the law under their existing regulations? 
103 

Response. The Court’s decision in Rapanos does not require the Administration 

to rewrite the regulatory definition of the phrase ‘‘waters of the U.S.’’ However, the 

various agencies tasked with protecting wetlands and implementing the Clean 

Water Act, have not, and therefore cannot continue to, successfully implement the 

law under their existing regulations. Business as usual isn’t working, and we are 

losing thousands of acres of wetlands each year. It is apparent that the Clean Water 

Act does require clarification, but the Act originated in Congress, Congress must be 

the ones to provide that clarification. 

STATEMENT OF KEITH KISLING, NATIONAL ASSOCIATION OF WHEAT GROWERS, NATIONAL CATTLEMEN’S BEEF ASSOCIATION

INTRODUCTION

My name is Keith Kisling and I come from Burlington, OK. I am here today testifying on behalf of the National Association of Wheat Growers (NAWG) and the National Cattlemen’s Beef Association (NCBA). I raise 1,500 head of stocker cattle on 

wheat pasture and 900-1,000 cattle on a backgrounding lot. Additionally, I grow 

wheat on more than 3,000 acres. Currently, I am the Chairman of the Oklahoma 

Wheat Commission and am the past Chairman of the U.S. Wheat Associates, which 

is the marketing arm for wheat growers in our country. My family and I have been 

in the business of farming and ranching for more than 35 years, and I am a third 

generation producer. 

Members of NAWG and NCBA are on the land everyday raising and growing food 

for our nation and the world. We produce the cheapest and most plentiful supply 

of food in the world. Our producers respect and love the land in a way occasional 

visitors to the land may have difficulty comprehending. We know that food production must be sustainable for it to be economic in the long run. 

Approximately 70 percent of the land in the lower 48 States is owned privately. 

A substantial portion of this land is used for the production of food which is arguably the most important use for this land. The production of food in our country cannot be taken for granted. Farmers and ranchers in other countries are increasingly 

able to produce comparable food at lower cost to the American market. Additionally, 

society also looks to this private land and associated waters for many other services, 

including habitat for wildlife, clean water, and open space, most notably. American 

producers face an ever tightening web of regulations which economically 

marginalizes an increasing number of operations. While many, if not all, of the environmental and work-safety regulations are well-intended, it must also be recognized 

that limiting and ultimately choking the ability of farm and ranch operations to 

earn a living will come at a considerable cost to the Nation. 

The single biggest threat to wildlife values in the world is fragmentation of landscapes. Given the enormous pressures to subdivide and develop land in this country, 

farms and ranches are the most important buffers to slowing the tide of development. There is also a considerable human cost to disregarding the needs of farms 

and ranches. The families who settled our country and made a living from the land 

provided a critical service to our nation and deserve the respect and support of society. While times change and so must people, hopefully our ability and desire to support our history and cultural heritage does not. Respect for this history includes respect for buildings and artifacts. But it also includes respect for the people who 

made the buildings and artifacts. We are diminished as a people if we lose our connection with the past and the people who continue to bridge the past with the future. 

The challenge for society in using private lands is to strike a sensible balance between the demands of food production and conservation of natural resources. Unfortunately, the United States through both Republican and Democratic administrations has completely abdicated its responsibility to strike a balance between protecting wetlands and the respecting people who make their living on the land. Not 

only has no balance been struck, but in fact, regulation has been allowed to proceed 

unlawfully and directly at odds with teachings from the leading Supreme Court 

cases on the issue. This Congress and this Administration cannot allow this situation to continue. Fortunately, the Supreme Court provided a roadmap for resolving 

the situation in its recent decision in Rapanos v. United States, 126 S. Ct. 2208 

(2006). 

1. NEED RULEMAKING

Section 404 of the Clean Water Act (CWA) authorizes the Corps of Engineers to 

issue permits for the discharge of dredge and fill materials into navigable waters 
104 

of the United States. In Solid Waste Agency of Northern Cook County v. Army 

Corps of Engineers, (SWANCC), 531 U.S. 159 (2001), the Supreme Court ruled the 

corps could not require a permit to fill isolated wetlands because such wetlands are 

not waters of the United States and are not subject to the regulatory reach of the 

Clean Water Act. This limitation on the reach of the CWA has never been implemented by the corps in a rulemaking. Instead, the corps continues to assert jurisdiction over every conceivable presence of water on the land. In Rapanos, 126 S. Ct. 

2208 (2006), the Court observed that even after SWANCC, the Government continued to regulate ‘‘roadside ditches’’; tributaries consisting of ‘‘an intermittent flow of 

surface water through approximately 2.4 miles of natural streams and manmade 

ditches’’; ‘‘irrigation ditches and drains that intermittently connect to covered 

waters’’; and, ‘‘washes and arroyos’’ in the middle of the desert. Rapanos, 126 S. Ct. 

at 2217–18. 

The need for rulemaking was emphasized by Justices Kennedy, Breyer, and Chief 

Justice Roberts in Rapanos. As Chief Justice Roberts observed; 

Rather than refining its view of its authority in light of our decision in SWANCC, 

and providing guidance meriting deference under our generous standards, the corps 

chose to adhere to its essentially boundless view of the scope of its power. The 

upshot today is another defeat for the Agency. 

Rapanos, 126 S. Ct. at 2236. 

Nobody benefits from the Government’s failure to act in this arena. Without a 

rule, a Federal assertion of jurisdiction over waters will always be subject to a legal 

challenge for failure to comply with the Administrative Procedures Act. Not only 

will the agency be defeated again without a rule but so will those members of the 

public who are concerned with protecting as much water resources as possible within the actual jurisdiction of the corps. 

Of course, agriculture producers are also big losers from Government regulation 

without a rule. Because agriculture producers control so much private land in this 

country, much of the land has some kind of water on it either permanently or intermittently. Without clear notice of the extent of the Government’s regulatory reach 

provided by a rule, producers will always be uncertain about the extent they can 

use their own land without running afoul of the proscriptions in the CWA. 

Both the overzealous Government regulation and the failure to provide adequate 

notice about the extent of authority to regulate result in serious infringement of the 

rights of producers to use their own property. Private property rights are perhaps 

the most important bulwark enshrined in our nation’s laws and customs against 

abusive Government conduct. People want to be left alone to use their property as 

they see fit. While we understand the Government can and should regulate private 

conduct in certain carefully prescribed instances, we expect in this country that that 

regulation will be pursuant to law. 

In the case of waters of the United States, the Government has clearly been regulating the use of private property beyond the authority conferred by the CWA. In 

its decisions in SWANCC and Rapanos, the Supreme Court has worked to check this 

usurpation of congressional authority by the executive branch of Government, albeit 

to no avail as of this time. Those interested in protecting civil liberties, and of 

course the producers themselves, are the big losers. The time for the Government 

to issue a rule in conformance with the law is certainly upon us. 

2. CONTENT OF THE REGULATIONS

The Supreme Court in Rapanos offered guidance on this question as well. As an 

initial matter, it may be worth dispelling confusion that apparently swirls around 

the wetlands community as to what was the rule issued by the Court in the case. 

If the interested community cannot come to agreement on this point, it is hard to 

imagine an agreement forming on what should be the content of the regulations. 

When a fragmented Court decides a case and no single rationale explaining the 

result enjoys the assent of five Justices, ‘‘the holding of the Court may be viewed 

as that position taken by those Members who concurred in the judgment on the narrowest grounds.’’ Marks v. United States, 430 U.S. 188, 193 (1977) (emphasis 

added). For Rapanos, the opinions that ‘‘concurred in the judgment’’ were Justice 

Scalia’s four-justice plurality and Justice Kennedy’s concurrence, not Justice Stevens and the dissent. Accordingly, the Administration should look to the common 

elements of the Scalia and Kennedy decisions to determine the new standard for 

CWA jurisdiction. There appears to be at least two elements Kennedy and the plurality agreed on: 

1. Hydrologic Connection 

Hydrologic connection in the sense of an interchange of waters between a wetland 

and a navigable in fact body of water is not enough by itself to show a ‘‘significant 
105 

nexus’’ between the wetland and the water to support an assertion of jurisdiction 

by the corps. 126 S. Ct. at 2251. Justice Kennedy emphasized the importance of frequency of flow, volume of flow, and proximity to traditional navigable waters in determining whether a nonnavigable water has a ‘‘significant nexus’’ with traditional 

navigable waters. Justice Scalia’s plurality opinion requires a continuous connection 

from nonnavigable water to navigable water. Thus, remote and insubstantial connections will not suffice under either test. 

2. Identification of Jurisdictional Tributaries 

Justice Kennedy criticized the corps’ existing standard for identifying tributaries 

as overbroad: 

[T]he corps deems a water a tributary if it feeds into a traditional navigable water 

(or tributary thereof) and possesses an ordinary high water mark. . . . [A]though 

this standard presumably provides a rough measure of the volume and regularity 

of flow . . . , the breadth of this standard—which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water carrying only minor water volumes towards it—precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role 

in the integrity of the aquatic system comprising navigable waters as traditionally 

understood. 

126 S. Ct. at 2249. Justice Scalia was similarly skeptical of the corps’ and EPA’s 

regulation of ditches, drains, gutters, and gullies. 

These points of agreement do not so much identify an affirmative standard for 

regulation, as they identify limitations on corps authority, as does the SWANCC 

Court’s decision excluding isolated wetlands from the reach of regulation, that must 

be reflected in promulgated rules. 

Much has been made of Justice Kennedy’s proposed ‘‘significant nexus’’ test for 

determining whether a wetland is within the reach of Government regulation under 

the Clean Water Act. Because of the variety of circumstances in which water exists 

on the land, it may very well be that jurisdictional determinations for wetlands will 

have to be done on a case-by-case basis to some extent. It is also true, however, that 

the Supreme Court has offered some bright lines in SWANCC and the common elements in Rapanos for excluding certain waters from the reach of the CWA. 

Thank you for this opportunity to testify today. I will be pleased to take any questions you may have. 

RESPONSE BY KEITH KISLING TO AN ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question. Can you please describe again for the Committee the wetlands that are 

on your property? As I understand buffalo wallows, they were formed by the continuous wallowing of buffalos on the ground to rid themselves of insects. The soils are 

packed so tightly that the spots have become impervious. When there is below average rainfall, they have little to no water in them and when there is above average 

rainfall, the water enters the wallow from rainfall and escapes through evaporation. 

Are the ‘‘wetlands’’ on your property buffalo hollows? Do they have a hydrological 

connection to any neighboring waterbodies? Are they adjacent to any neighboring 

waterbodies? Are they entirely intermittent, nonnavigable, intrastate waterbodies? 

Response. The wetlands where I farm in the Central Great Plains ecoregion may 

have been used by the buffalo. To my knowledge, they are not adjacent to any 

neighboring waterbodies.μ I would say they are isolated intrastate wetlands. 

RESPONSES BY KEITH KISLING TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. While not everyone who lives in a rural area is a farmer, everyone 

in rural areas must drink water. The regulation of what may or may not come in 

contact with water might impose costs on a farmer, but it also saves costs down the 

road. If a stream, river, or lake never becomes polluted, fewer tax dollars must be 

spent to clean the water for household use. If groundwater stays clean, fewer impurities will find a way into a rural neighbor’s well. How do you and your neighbors 

in Oklahoma reconcile with these benefits? 

Response. Farmers and ranchers want to cut out unnecessary costs to keep their 

operations economically viable and we want clean water like all Americans. We face 

more costly regulations now than any other time since I have been farming. Wetland regulations are an example of where many farmers and ranchers have found 
106 

themselves trapped in the corps regulatory grip when they simply dug a ditch or 

moved a little dirt around on their property. Fortunately, Farm Bill conservation 

programs are available to help offset many burdensome regulatory costs. One only 

needs to look at the record participation in voluntary, incentive-based conservation 

programs to understand the willingness of farmers to conserve natural resources 

and the need to use these programs to offset the enormous and costly burdens of 

heavy-handed regulations. 

Question 2. In your testimony, you state that, rather than adopt the limitation 

on regulation of isolated waters that you believe the SWANCC case called for, you 

believe that ‘‘. . . the corps continues to assert jurisdiction over every conceivable 

presence of water on the land.’’ This is not consistent with the data collected by the 

GAO which found in its report of September 2005 that, ‘‘Since the Supreme Court’s 

January 2001 ruling, the corps is generally not asserting jurisdiction over isolated, 

intrastate, nonnavigable waters using its remaining authority.’’ The report goes on 

to say that, ‘‘Only 8 cases have been submitted to headquarters to obtain approval 

for asserting jurisdiction based solely on links to interstate commerce, and none of 

them have resulted in a decision to assert jurisdiction.’’ On what data do you base 

the statement in your testimony? Please provide specific examples. 

Response. About six to eight months ago, a farmer initiated a project to improve 

the drainage on 11 of the 130 acres he has under center pivot irrigation. Before he 

conducted any work, he contacted USDA’s Natural Resources Conservation Service 

and his State regulatory Agency to get approval and was told that they did not consider his land to be a wetland. Afterward, the corps wrote him a letter explaining 

that they had reviewed his information and did consider his proposal an attempt 

to fill ‘‘11.8 acres of wetland.’’ The corps said he needed a section 404 permit and 

he would have to restore or create wetlands at a ratio of 1.5 acres of compensatory 

mitigation to one acre of wetland adversely impacted. The corps indicted that he 

needed approximately 17.7 acres of restored and/or created wetland, which they figured would cost him about $77,000. 

The corps’ claim to jurisdiction over this property is based upon a hydrologic connection of the field to an unnamed wetland which is adjacent to another unnamed 

wetland which is adjacent to an unnamed tributary which is adjacent to the nonnavigable creek, which is said to be a tributary to the non-navigable upper reach 

of a river. 

The scary part of this example is this; the navigable portion of any water is more 

than 160 miles as the crow flies from this land. The tenuous hydrologic connection 

that exists between the farmland and the corps ‘‘tributary’’ is generated by runoff 

and only ‘‘occasionally’’ exits this farmers’ property through a culvert in a levee that 

his center pivot irrigation system uses to make its circle. The frequency and volume 

of the surface water runoff is generally very limited. In fact, the flow through the 

unnamed wetland is non-existent most of the year. Any water that leaves this property continues through property immediately abutting his property. If any water 

reaches the adjoining property, it encounters various water management structures 

designed to obstruct and prevent the surface flow into the unnamed tributary. 

The 130 acres and the 11.8 acres the corps is calling a ‘‘wetland’’ have been 

farmed for almost a century. This land is not navigable water; it’s nowhere near 

navigable water. If this land can be regulated as navigable waters, just about any 

land can. 

Question 3. You raise the issue of property rights. In the Supreme Court decision 

in Bayview Homes, this issue was explicitly addressed. The Court found that, ‘‘Neither the imposition of the permit requirement itself nor the denial of a permit necessarily constitutes a taking.’’ The Court goes on to say that there is Federal legislation providing the authority to provide compensation for takings that may result 

from the corps’ exercise of jurisdiction over wetlands. I have read nothing in 

Rapanos-Carabell that addresses this question in any manner. Can you articulate 

in more depth where in the decision we are reviewing during this hearing that issue 

is addressed? 

Response. If I own a tractor, I should be able to use it in the normal conduct of 

my farming operations. From my perspective, when the Federal Government takes 

something away—it’s a taking. Rapanos and Carabell were just trying to use their 

land. If the corps designates an area on my property as a wetland, preventing me 

from using my property, that is a taking. The Rapanos decision is all about private 

property rights. 

Question 4. In your written statement you say, ‘‘In its decision in SWANCC and 

Rapanos, the Supreme Court has worked to check this usurpation of congressional 

authority by the executive branch of the Government. . . ’’ In the Rapanos-Carabell 

case, the Administration provided pages of legislative and regulatory history sup-
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1 Legislative History 250-51. Representative Dingell’s statement 2 Legisltative History 178. Senator Muskie’s floor statement in support of the 1970 act. See 

116 Cong. Rec. 8985; see also H.R. Rep. No. 92-1323, 31 (quoting the same language). 

porting their case. Can you tell me exactly which part of the legislative history of 

the Clean Water Act supports your view that the executive branch of the Government has gone beyond the authority granted them by Congress? 

Response. I am not an attorney but as a citizen, I have should be able to understand the Government’s interpretation of the word navigable. As a citizen, I understand it to be as the dictionary defines it ‘‘sufficiently deep and wide to provide passage of vessels. Navigable waters—provides passage for vessels.’’ The term navigable must be related to a common understanding. It is common sense that the average citizen should be able to understand what Congress had in mind as its authority in enacting the CWA. 

In reading through the Legislative History, Congressman Dingell talked about defining the term ‘‘navigable waters’’ broadly’’ His statement in context supported including waterways which would be ‘‘susceptible of being used (in interstate commerce)—with reasonable improvement,’’ as well as those waterways which include 

sections presently obstructed by falls, rapids, sand bars, currents and floating debris.’’1 Senator Muskie made the following statement—‘‘One matter important 

throughout the legislation is the meaning of the term ‘‘navigable water of the United 

States’’. . . The term ‘‘navigable waters’’ includes all waters bodies, such as lakes, 

streams, and rivers, regarded as public navigable waters in law which are navigable 

in fact. It is further intended that such waters shall be considered to be navigable 

in fact when they form, in their ordinary condition by themselves or be uniting with 

other waters or other systems of transportation, such as highways or railroads, a 

continuing highway over which commerce is are or may be carried on with other 

States or with foreign countries in the customary means of trade an travel in which 

commerce is conducted to day (1972). In such case the commerce on such waters 

would have a substantial economic effect on interstate commerce.’’2

In sum, I am sure there is a lot of legislative history but I believe the plain language and the above history of the 1972 amendments suggest that Congress intended for the word navigable to mean ‘‘navigable in fact’’. 

Question 5. In your testimony, you state that, ‘‘. . . the Administration should 

look to the common elements of the Scalia and Kennedy decisions to determine the 

new standard for CWA jurisdiction.’’ You base this statement on Marks v. United 

States. During the hearing, neither the Department of Justice, Dr. Adler or Dr. 

Buzbee, professors of law, agreed with your interpretation. On what legal basis do 

you assert that the common elements of Scalia and Kennedy should be used as the 

standard for CWA jurisdiction? 

Response. Professor Adler testified ‘‘therefore, the concurring opinion of Justice 

Kennedy and the grounds of the agreement between Justice Kennedy and the plurality offered by Justice Scalia form a holding of the Court.’’ Further, Marks v. 

United States represents the view of the Supreme Court as to how to determine the 

rule that results from a divided court. Chief Justice Roberts, in his concurring opinion, indicated that, ‘‘this situation is certainly not unprecedented,’’ and pointed to 

Marks v. United States. 

Question 6. In your testimony, you state that, ‘‘Justice Kennedy emphasized the 

importance of frequency of flow, volume of flow, and proximity to traditional navigable waters in determining whether nonnavigable water has a ‘‘significant nexus’’ 

with traditional navigable waters.’’ On the contrary, Justice Kennedy spends pages 

12-14 of his opinion specifically refuting the viewpoint offered by Justice Scalia on 

these issues. On page 13 of Justice Kennedy’s opinion he states, ‘‘The plurality’s 

first requirement—permanent standing water or continuous flow. . . makes little 

practical sense.’’ On page 15, he states, ‘‘The plurality’s second limitation—exclusion 

of wetlands lacking a continuous surface connection to other jurisdictional waters— 

is also unpersuasive.’’ Justice Scalia writes that the dissent’s rationale for determining Clean Water Act jurisdiction is ‘‘demonstrably inadequate.’’ Your testimony 

implies that the Kennedy and Scalia opinion are in agreement on these issues. On 

which specific passages in Justice Kennedy’s opinion do you base your statements? 

Response. In part ‘‘B’’ of Justice Kennedy’s opinion, he refers to the Corps’ existing standard for ‘‘tributaries.’’ His opinion states that the corps’ existing standard, 

‘‘may provide a reasonable measure of whether specific minor tributaries bear a 

sufficient nexus with other regulated waters to constitute ‘‘navigable waters’’ . . .

Yet the breadth of this standard . . . leaves wide room for regulation of drains, 

ditches, and streams remote form any navigable-in-fact waters and carrying only 

minor water-volumes—preclud[ing] its adoption as the determinative measure of 
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whether adjacent wetlands are likely to play an important role in the integrity of 

an aquatic system comprising navigable waters as traditionally understood . . . Indeed, in many cases wetlands adjacent to tributaries covered by this standard might 

appear little more related to navigable-in-fact waters than were the isolated ponds 

held to fall beyond the Act’s scope in SWANCC.’’ (page 25) 

Further, Justice Kennedy states ‘‘ . . . mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkange 

to establish the required nexus with navigable waters as traditionally understood.’’ 

(page 28). 

He goes on to argue that Rapanos must be reheard because ‘‘the record gives little 

indication of the quantity and regularity of flow in the adjacent tributaries—a consideration that may be important in assessing the nexus.’’ ( page 29) 

Finally, Justice Kennedy states ‘‘. . . the corps bases its jurisdiction solely on 

the wetlands’ adjacency to the ditch opposite the berm on the property’s edge. As 

explained earlier, mere adjacency to a tributary of this sort is insufficient; a similar 

ditch could just as well be located many miles from any navigable-in-fact water and 

carry only insubstantial flow towards it.’’ (page 30). 

Question 7. Your testimony indicates that you tend to agree that the Clean Water 

Act should not protect certain wetlands and tributary streams. Do you have an estimate about what percentage of the Nation’s streams and wetlands should not have 

Federal protection under your view of the current law? 

Response. No. 

Question 8. There is only one definition of ‘‘waters of the U.S.’’ under the Clean 

Water Act. Do you agree that whatever intermittent streams and wetlands are ‘‘too 

remote’’ in your view to be regulated should not be covered by any Clean Water Act 

program, including those designed to prevent raw sewage from entering such 

waterbodies? 

Response. States, including Oklahoma have health and safety codes that dictate 

how individuals must handle and treat ‘‘raw sewage.’’ No one in Oklahoma can lawfully discharge ‘‘raw sewage’’ anywhere—period. So my State has taken care of that 

health problem without the help of the Corps and EPA. 

Question 9. In your testimony, you say there is a need for agency rulemaking to 

clarify the Clean Water Act to let landowners and others know what the law is and 

in the interest of ‘‘those members of the public who are concerned with protecting 

as much water resources as possible within the actual jurisdiction of the Corps’’. But 

you didn’t say anything about what Congress should do. As the body that enacted 

the Clean Water Act, doesn’t it make more sense for Congress to say what waters 

should be covered by the Clean Water Act? 

Response. Like all businessmen and women, farmers and ranchers need a clear 

set of rules by which to plan and run their businesses. Even if Congress were to 

more clearly identify what waters should be covered by the Clean Water Act, the 

Corps and EPA would still be required to issue regulations implementing the new 

statutory definition. The agencies must act to conform their regulatory practice to 

the Supreme Court’s decisions in SWANCC and Rapanos. The call for such regulations was loud and clear in the Rapanos decision. 

Question 10. You suggest that the way to read the opinions is to find the places 

where the plurality and Justice Kennedy agree, and you say that the agencies 

should do a rulemaking, but Justice Kennedy and the plurality don’t agree about 

what the agencies could accomplish in rulemaking. In fact, Justice Kennedy points 

out that ‘‘because the plurality presents its interpretation of the Act as the only permissible reading of the plain text. . . the corps would lack discretion, under the 

plurality’s theory, to adopt contrary regulations.’’ Are you hoping that the agencies 

will change the rules to mirror Justice Scalia’s opinions? 

Response. As I’ve indicated above, the common elements from Scalia’s plurality 

opinion together with Kennedy’s concurring opinion provide the rule to be applied 

from the Rapanos decision. I would point out though that Justice Scalia’s opinion 

does track the plain language of the text and would be far easier for the regulated 

community to understand than the current Federal interpretations or Kennedy’s significant nexus test. 
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