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S. HRG. 110–1232 

THE CLEAN WATER ACT FOLLOWING THE RECENT 

SUPREME COURT DECISIONS IN SOLID WASTE 

AGENCY OF NORTHERN COOK COUNTY AND 

RAPANOS-CARABELL 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

DECEMBER 13, 2007 

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

( 

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

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

JAMES M. INHOFE, Oklahoma 

JOHN W. WARNER, Virginia 

GEORGE V. VOINOVICH, Ohio 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

LARRY E. CRAIG, Idaho 

LAMAR ALEXANDER, Tennessee 

CHRISTOPHER S. BOND, Missouri 

BETTINA POIRIER, Majority Staff Director and Chief Counsel 

ANDREW WHEELER, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

DECEMBER 13, 2007 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from The State of California ....................... 1 

Kyl, Hon. Jon, U.S. Senator from The State of Arizona ....................................... 78 

WITNESSES 

Curry, Hon. Ron, Cabinet Secretary, New Mexico Environment Department ... 1 

Prepared statement .......................................................................................... 3 

Yaich, Scott C., Director, Conservation Operations, Ducks Unlimited ............... 5 

Prepared statement .......................................................................................... 7 

Responses to additional questions from Senator Boxer ................................ 12 

Desiderio, Duane, Legal Affairs, Staff Vice President, National Association 

of Home Builders .................................................................................................. 17 

Prepared statement .......................................................................................... 19 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 36 

Senator Inhofe ........................................................................................... 39 

Mannina, George J. Jr., Attorney At Law, O’connor And Hannan, LLP ............ 40 

Prepared statement .......................................................................................... 41 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 55 

Senator Inhofe ........................................................................................... 58 

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

Resources Law Program, Emory Law School, Director, Center on Federalism and Intersystemic Governance .............................................................. 59 

Prepared statement .......................................................................................... 61 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 71 

Senator Inhofe ........................................................................................... 74 

ADDITIONAL MATERIAL 

Statements: 

Compliance Consultants, Inc ........................................................................... 80 

National Cattlemen’s Beef Association ........................................................... 82 

The National Stone, Sand & Gravel Association ........................................... 89 

Letters regarding S. 1870, the ‘‘Clean Water Authority Restoration Act of 

2007’’ .....................................................................................................................97-158 

(1) 

THE CLEAN WATER ACT FOLLOWING THE RECENT SUPREME COURT DECISIONS IN 

SOLID WASTE AGENCY OF NORTHERN 

COOK COUNTY AND RAPANOS-CARABELL 

THURSDAY, DECEMBER 13, 2007 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC. 

The full committee met, pursuant to notice, at 9 a.m. in room 

406, Dirksen Senate Office Building, Hon. Barbara Boxer (chairman of the full committee) presiding. 

Present: Senators Boxer, Inhofe, Barrasso. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Welcome, everybody. And I am starting this 30 

seconds early. We have a horrific schedule today, and we want to 

hear from you. So I have determined we are going to waive all 

opening statements, including that of myself and the Ranking 

Member. 

We are dealing here with a couple of Supreme Court decisions 

that deal with the Clean Water Act. I would ask unanimous consent to place into the record, in addition to my own opening statement, that of any other member and also Senator Russ Feingold, 

who sent a statement in. He has a bill on the subject. 

[The referenced prepared statement of Senator Boxer was not 

submitted in time for print.] 

[The referenced prepared statement of Senator Feingold was not 

submitted in time for print.] 

Senator BOXER. So we are going to get started right away. I welcome all members and our panel. We will start with Hon. Ron 

Curry. We are going to have 5 minutes per, we are going to have 

to end this in 35 minutes. So please, sir, go ahead. 

STATEMENT OF HON. RON CURRY, CABINET SECRETARY, NEW 

MEXICO ENVIRONMENT DEPARTMENT 

Mr. CURRY. Good morning. My name is Ron Curry. I am Cabinet 

Secretary of the New Mexico Environment Department in the administration of Governor Bill Richardson. 

Senator BOXER. Sir, I can’t hear you. Thank you. 

Mr. CURRY. My name is Ron Curry. I am Cabinet Secretary of 

the New Mexico Environment Department in the administration of 

2 

Governor Bill Richardson. I want to thank you for allowing me to 

be here today to talk about the Clean Water Act, which has been 

our Nation’s main tool in ensuring the continued protection of the 

water we drink, enjoy for recreation and that wildlife communities 

rely on. 

Unfortunately, the effectiveness of this tool has been blunted by 

two recent Supreme Court decisions. This is especially troubling in 

New Mexico, an arid State that has relied on the Clean Water Act 

to help us protect our limited but very precious water resources. It 

is important for us all to remember, I think, that the Clean Water 

Act is one of our Nation’s great successes. My objective today is to 

urge you to support the solution that clears the waters that have 

been muddied, and I encourage you to join Governor Richardson in 

supporting the Clean Water Restoration Act. 

Prior to these Supreme Court decisions, the scope of the Clean 

Water Act was interpreted broadly to provide protection for all the 

Nation’s water bodies, from small upland streams that flow intermittently in response to storm events to the numerous wetlands 

that provide shelter for wildlife and create a natural filtration system for our aquifers. These waters are valued, just as we placed 

value on the large rivers that are conduits for commerce and industry. 

As the person that is charged by Governor Richardson with protecting New Mexico’s very limited water supply from pollution, I 

can tell you that basing the decision on what water deserves to be 

clean by whether or not you can float a boat on it is complete lunacy. These court decisions do not take into account the types of 

intermittent water flows found in the Southwest, which experiences 

a dry season as well as a monsoon season in New Mexico. There 

are times in the summer months when you can’t even float a small 

raft down the mighty Rio Grande, which is New Mexico’s main surface water water resource. 

Nowhere have the limitations created by these two recent Supreme Court decisions been felt more acutely than in the desert 

Southwest. We simply have no water to waste there, and therefore, 

water we have and its quality is of utmost importance to the continued health of our citizens and the future economic development 

of our region. By excluding isolated, interState, non-navigable 

streams and waters from protections previously guaranteed in the 

Clean Water Act, these decisions could remove Federal protections 

for more than 90 percent of our State’s water bodies, because they 

only flow intermittently. 

Additionally, waters within the closed basins that cover up to one 

fifth, one fifth of New Mexico would also be left vulnerable to pollution. This includes 84 miles of perennial streams, 3,900 miles of 

intermittent waters, 4,000 playa wetlands and numerous headwater springs, cienegas and isolated wetlands. Threatened basins 

include the Tularosa, Mimbres, San Augustine, Estancia and Salt 

in central, south central and southwestern New Mexico. The water 

beneath just one of those basins, the Salt, has been estimated by 

the U.S. Geological Survey to contain as much as 57 million acre 

feet of water, including 15 million that is potable. 

Finally, the Southwest is currently in the grips of a year’s long 

drought, putting our already limited water resources at an even 

3 

higher premium. To weaken environmental oversight now, we believe, is to invite disaster. 

Removing the protections afforded by the Clean Water Act from 

the critical portions of our Nation’s aquatic systems and protecting 

only selected reaches of our waters will result in real costs for our 

citizens, costs to the economy, the environment and to our quality 

of life. The citizens of New Mexico depend on the protection of a 

clean environment and a sustainable water supply. If we are to ensure that New Mexico’s waters and the Nation’s waters are protected now and for future generations, we must act collectively to 

restore the purpose, the scope, the clarity and the predictability of 

the Clean Water Act, so that it will once again serve as the primary and comprehensive protection of our Nation’s water. 

Thank you. 

[The prepared statement of Mr. Curry follows:] 

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

INTRODUCTION

My name is Ron Curry and I am the Cabinet Secretary of the New Mexico Environment Department in the administration of Governor Bill Richardson. Thank you 

for the opportunity to provide testimony regarding the importance of restoring Clean 

Water Act protections to many of America’s rivers, lakes and streams. 

The Clean Water Act has been our nation’s main tool in ensuring the continued 

protection of the water we drink, enjoy for recreation and that wildlife communities 

rely upon. Unfortunately, the effectiveness of this tool has been blunted by two recent Supreme Court decisions. The court’s rulings in Solid Waste Agency of Northern Cook County v. Corps of Engineers (SWANCC) in 2001 and Rapanos et ux., et 

al. v. United States (Rapanos) in 2006 have severely limited the waters that receive 

protection under the Clean Water Act. This is especially troubling in New Mexico, 

an arid State that has relied on the Clean Water Act to help us protect our limited 

but precious water resources. 

It is important for us to remember that the Clean Water Act is one of this nation’s 

successes. Waters that thirty years ago were thick with waste discharges now support thriving recreational and economic activities. The U.S. Environmental Protection Agency’s broad policy of ensuring protection for nearly all waters was a benefit 

to everyone. Our quality of life improved and so did the sustainability of aquatic 

species and wildlife. But now those protections are mired in widespread confusion 

and bureaucratic gridlock because it is no longer clear what waters will continue 

to be protected. My objective today is to urge your support for a solution that clears 

waters that have been muddied and encourage you to join Governor Bill Richardson 

in supporting the Clean Water Restoration Act (S. 1870). 

THE PROBLEM

Prior to these Supreme Court decisions, the scope of the Clean Water Act was interpreted broadly to provide protection for all the nation’s water bodies, from small 

upland streams that flow intermittently in response to storm events, to the numerous wetlands that provide shelter for wildlife and create a natural filtration system 

for our aquifers. These waters were valued, just as we place value on the large rivers that are conduits for commerce and industry. First in 2001, and again last year, 

the courts scaled back these broad protections, defining ‘‘navigable waters’’ narrowly. These decisions have created great uncertainty for Federal, State and local 

officials as well as communities and land owners regarding what waters are protected. 

In effect, the Supreme Court has ruled that there are two classes of water, one 

class that can be tied directly to ‘‘navigability’’ and deserves Federal protection from 

pollution, and a second class that is completely abandoned or must undergo a case 

by case ‘‘significant nexus’’ test whereby tributaries or wetlands would be dropped 

from protection if the government cannot directly prove they empty into navigable 

waters. As the man charged by Governor Richardson with protecting New Mexico’s 

limited water supply from pollution, I can tell you that basing the decision on what 

4 

water deserves to be clean or whether or not you can float a boat on it is lunacy. 

These Court decisions do not take into account the types of intermittent water flows 

found in the Southwest, which experiences a dry season as well as a ‘‘monsoon’’ season. There are times in the summer months when you can’t even float a boat down 

the mighty Rio Grande, New Mexico’s main surface water resource. 

To put it another way, many of you today have glasses of water before you. As 

an analogy, imagine that these glasses collectively made up all the waters of the 

United States. Before the 2001 SWANCC decision, the water in those glasses was 

protected by the Clean Water Act. However, today, because the SWANCC and 

Rapanos decisions, as much as one half of those glasses may no longer be protected. 

I want you all to have good, clean water in those glasses, but if these Supreme 

Court decisions stand, I just can’t say for sure if you will. 

The Clean Water Restoration Act solves this problem by replacing the term ‘‘navigable waters of the United States’’ with ‘‘waters of the United States.’’ This fix simply restores protections that were in place for three decades during which time the 

quality of America’s rivers, lakes, wetlands and streams improved dramatically. It 

also restores Congress’ original intent when it passed the Clean Water Act in 1972, 

to protect our nation’s water resources for future generations. 

LOCAL IMPACT

Nowhere have the limitations created by these two recent Supreme Court decisions been felt more acutely than in the desert Southwest. We simply have no water 

to waste, and therefore the water we have—and its quality—is of utmost importance 

to the continued health of our citizens and the future economic development of our 

region. By excluding isolated, intrastate, non-navigable waters from protections previously guaranteed under the Clean Water Act, these decisions could remove Federal protections from more than 90 percent of our state’s waterbodies because they 

flow only intermittently. Additionally, waters within closed basins that cover up to 

one fifth of New Mexico would also be left vulnerable to pollution. This includes 84 

miles of perennial streams, 3,900 miles of intermittent waters, 4,000 playa wetlands, and numerous headwaters, springs, cienegas and isolated wetlands. Threatened basins include the Tularosa, Mimbres, San Augustine, Estancia and Salt in 

central, south central and southwestern New Mexico. 

These misguided rulings also threaten New Mexico’s precious, limited groundwater resources—the source of 90 percent of our clean drinking water. Surface 

water bodies are often directly linked to groundwater resources. Unregulated, damaging surface dumping will therefore ultimately lead to pollution in the aquifer. We 

cannot allow this to happen. The water beneath just one of these basins—the Salt— 

has been estimated by the U.S. Geological Survey to contain as much as 57 million 

acre feet of water, including 15 million that is potable. That could prove to be a 

vital, and needed, future water supply for the rapidly growing city of Las Cruces 

in southern New Mexico. However, if this aquifer is allowed to be polluted by surface dumping, its benefits for future New Mexicans will be severely curtailed. 

New Mexico also supports efforts to ensure this bill preserves our traditional powers over our groundwater resources. 

Finally, the Southwest is currently in the grips of a years-long drought, putting 

our already limited water resources at an even higher premium. To weaken environmental oversight now is to invite disaster. That is why Governor Richardson has 

taken an aggressive leadership position on this issue. 

STATE ACTIONS

Governor Richardson has been a leader on the issue of restoring protections to 

New Mexico’s waters. In March 2003, he filed formal comments with the U.S. Environmental Protection Agency petitioning that New Mexico’s closed basins and other 

imperiled waters remain protected under the Federal Clean Water Act. He also 

strongly supported the Clean Water Authority Restoration Act of 2003, a precursor 

to the legislation before you today. 

More recently, Governor Richardson successfully opposed oil and gas drilling in 

the Valle Vidal of Northern New Mexico, and in order to protect its world class trout 

streams, he fought to have those streams listed as Outstanding National Resource 

Waters. He is also fighting to protect the Salt Basin Aquifer (whose untapped water 

resources I mentioned before) from energy development at Otero Mesa. Governor 

Richardson recently launched a multi-million dollar effort—the first in State history—to provide a State funding source for river ecosystem restoration. Finally, he 

also led an effective collaboration with the State of Texas to address salinity issues 

in the lower Rio Grande. States can do a lot, but without lasting Federal Clean 

5 

Water Act protection, the state’s efforts to restore and defend its waters could be 

severely eroded. 

CLEAN WATER RESTORATION ACT

Removing protections afforded by the Clean Water Act from critical portions of 

our nation’s aquatic systems and protecting only selected reaches of our waters will 

result in real costs for our citizens—costs to the economy, the environment and to 

our quality of life. 

The Clean Water Restoration Act of 2007 provides a logical and practical solution 

by restoring the traditional scope of the Clean Water Act and clarifying the purpose 

of the Act based on long-standing regulatory definitions. This is not an expansion 

of Federal authority but a return to a clear and comprehensive common goal. This 

action will also allow continued state-Federal partnerships to provide streamlined 

and efficient regulatory programs such as those that have been in operation for 

more than 30 years. 

The Citizens of New Mexico depend on the protection of a clean environment and 

sustainable water supply. If we are to ensure that New Mexico’s waters and the nation’s waters are protected now and for future generations, we must act collectively 

to restore the purpose, the scope, the clarity and the predictability of the Clean 

Water Act so that it will once again serve as the primary and comprehensive protection of our Nation’s waters. 

Thank you for inviting me here today to testify on this important issue. I look 

forward to your questions. 

Senator BOXER. Thank you very much. 

Senator Inhofe. 

Senator INHOFE. Yes, for clarification, the gentleman said something about the particular legislation that has been introduced. 

This is not a hearing on that legislation, even though it is a hearing on the underlying—— 

Senator BOXER. That is correct. But I think colleagues can say 

whether they are for it. 

Senator INHOFE. Oh, that is fine. 

Senator BOXER. That is true, we are not having a hearing on that 

legislation at this time. 

Dr. Scott Yaich, Director of Conservation Operations, Ducks Unlimited. Welcome, sir. 

STATEMENT OF SCOTT C. YAICH, DIRECTOR, CONSERVATION 

OPERATIONS, DUCKS UNLIMITED 

Mr. YAICH. Thank you. 

Madam Chairman and members of the Committee, my name is 

Dr. Scott Yaich, and I am the Director of Conservation Operations 

at Ducks Unlimited’s national headquarters. 

I appreciate the opportunity to speak today on behalf of Ducks 

Unlimited and our more than one million supporters, as well as for 

the National Wildlife Federation, Trout Unlimited, Wildlife Management Institute, Theodore Roosevelt Conservation Partnership, 

Pheasants Forever, Izaak Walton League and The Wildlife Society. 

DU’s mission is to conserve, restore and manage wetlands and associated habitats for North America’s waterfowl and for the benefits they provide other wildlife and the people who enjoy and value 

them. DU and our partners are science-based conservation organizations, so our perspectives on the Clean Water Act are grounded 

in wetland and water related scientific disciplines. 

To ensure that we begin with a common understanding, it is 

worthwhile to State that, from a scientific perspective, a wetland 

is an area that has hydric soils and is subject to being flooded or 

saturated for a portion of the growing season, and supports or is 

6 

capable of supporting wetland vegetation. Also, there are at least 

two different perspectives from which the definition of ‘‘waters of 

the United States.’’ can be viewed: the legal perspective and the 

scientific one. The former is currently a legal uncertainty and the 

latter is a reality. 

From a scientific perspective, ‘‘waters of the United States.’’ is an 

inclusive term reflecting the fact that the Nation’s waters are interconnected. The legal definition of the waters and wetlands that 

should be jurisdictional under the Clean Water Act should be the 

large sub-set of those waters that must be regulated to fulfill the 

objective of the Act, which is to ‘‘maintain and restore the chemical, 

physical and biological integrity of the Nation’s waters.’’ 

I would like to emphasize five primary points in my comments 

this morning. The first is that of the original 221 million acres of 

wetlands in the U.S., over half have already been lost. This has significantly reduced the ability of the remaining wetlands and other 

waters to fulfill Federal and public interests, among them the capability of the Nation’s wetlands to support internationally shared 

waterfowl populations. 

I spent 17 years working in Arkansas, much of it in the Cache 

and White River Basins, historically among the most important 

wintering waterfowl habitats in North America. Arkansas has lost 

almost 80 percent of these wetlands, and the numbers of waterfowl 

coming into the region now are consequently much lower than they 

once were. 

My second point is that wetlands serve important ecological and 

societal functions in addition to providing wildlife habitat. Wetlands hold water and provide natural flood control during times of 

high rainfall and subsequently slowly release it and help maintain 

baseflows of streams and rivers. In Minnesota, for example, watersheds with higher percentages of remaining wetlands and lakes 

have been shown to have lower levels of damaging flooding. 

Wetlands also recharge aquifers, such as the High Plains Aquifer 

shared by eight States. Along the South Platte River in Colorado, 

geographically isolated wetlands provide water directly to the river 

via groundwater connections. The water from some wetlands there 

can take 12 years to reach the river, but because of the demonstrated certainty of these significant hydrologic nexuses, the 

water in these wetlands has economic value and is being bought 

and sold as part of an interState and Federal agreement. 

The negative side of these kinds of connections between geographically isolated wetlands and other waters is that the water 

can transport pollutants. For example, in one county in Michigan, 

there are a number of geographically isolated wetland Superfund 

sites from which compounds such as polychlorinated biphenyls and 

heavy metals have leached into aquifers, private drinking wells 

and ultimately to the Clinton River. 

Scientific studies and wetland systems across the Country document these hydrologic and ecologic linkages between wetlands and 

other waters. These studies support my third point, which is that 

virtually all wetlands, in combination with similar wetlands in a 

region, do possess significant nexuses with navigable and other waters and have a direct effect on their quantity and quality. In the 

Rapanos decision, Justice Kennedy strongly indicated the imporVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
7 

tance he placed on the aggregate impacts of wetland loss when he 

stated that an example of the public purposes that should be 

served by the Clean Water Act was to address water quality issues 

such as the Gulf of Mexico’s hypoxic or dead zone. This problem 

can only be addressed by approaching it at the interState landscape scale, including protecting or restoring some of those 60 million acres of wetlands in the Mississippi River watershed whose 

losses contributed to the hypoxia problem. 

My fourth point is that as a result of the Supreme Court decision 

and subsequent agency guidance not being based upon the best 

available wetland science, tens of millions of acres of wetlands 

across the Country are now at significantly increased risk of being 

lost. Although Justice Kennedy’s significant nexus test provides a 

science-based conceptual approach to wetland regulation, the nature of the nexuses between wetlands and other waters makes such 

as test virtually impossible to efficiently apply in a regulatory context. The net effect, then, has been decreased protection of wetlands, increased regulatory uncertainty and increased administrative burdens and processing times required for permits. 

So, my concluding point is that due to the nature and almost universal scope of the connections between wetlands and other waters 

of the U.S., fulfilling the primary purposes of the Clean Water Act 

requires that the wetland protections that existed prior to the 

SWANCC decision must be restored. Legislation that clarifies that 

central point is the only apparent remedy for restoring the necessary Clean Water Act protections. 

Thank you. 

[The prepared statement of Mr. Yaich follows:] 

STATEMENT OF SCOTT C. YAICH, DIRECTOR, CONSERVATION

OPERATIONS, DUCKS UNLIMITED

Mr. Chairman, members of the Committee, my name is Dr. Scott Yaich. I am the 

Director of Conservation Operations at Ducks Unlimited’s (DU) National Headquarters in Memphis, Tennessee. I am certified as a Professional Wetland Scientist 

and Certified Wildlife Biologist by the Society of Wetland Scientists and The Wildlife Society, the professional organizations of these respective scientific disciplines. 

I have worked for DU since 2001, and previously served as Wetlands Program Coordinator and Assistant Director for the Arkansas Game and Fish Commission for 13 

years. My current duties include responsibility for overseeing DU’s scientific review 

and response to issues related to the Clean Water Act. 

I appreciate the opportunity to present our testimony to you today on behalf of 

Ducks Unlimited. Our organization was founded in 1937 by concerned and farsighted sportsmen conservationists. Our mission is to conserve, restore, and manage 

wetlands and associated habitats for North America’s waterfowl, and for the benefits these resources provide other wildlife and the people who enjoy and value them. 

DU has grown from a handful of people to an organization of over 1,000,000 supporters who now make up the largest wetlands and waterfowl conservation organization in the world. With our many private and public partners we have conserved 

over 12 million acres of habitat for waterfowl and associated wildlife in the U.S., 

Canada, and Mexico. Ducks Unlimited is a science-based conservation organization. 

Every aspect of our habitat conservation work is rooted in the fundamental principles of scientific disciplines such as wetland ecology, waterfowl biology, hydrology, 

and landscape ecology. Thus, our perspectives on the Clean Water Act and related 

issues are based on our extensive grounding in these scientific disciplines. 

DEFINITION OF ‘‘WATERS OF THE UNITED STATES’’ 

There are at least two vastly different but ultimately closely intertwined perspectives on the focus of this hearing, i.e., the definition of ‘‘waters of the U.S.’’ The one 

that is the subject of debate and controversy is the legal definition of ‘‘waters of the 

8 

U.S.’’ for purposes of delineating the water bodies and wetlands that fall within the 

regulatory jurisdiction of the Clean Water Act. This legal definition of ‘‘waters of the 

U.S.’’ is one with which Ducks Unlimited claims no special expertise. However, because much of our on-the-ground conservation work involves impacts to wetlands 

and other waters, DU, like the rest of the ‘‘regulated community,’’ is subject to all 

the requirements of the Sec. 404 regulatory process. This exposes us to both sides 

of the issue and provides us a first-hand awareness of the perspectives of the regulated community. 

The other perspective of the definition of ‘‘waters of the U.S.’’ is the one in which 

Ducks Unlimited has genuine expertise, and that is the ecological perspective. Because this definition relates to the real, physical world and is not simply a legal construct, it is something to which we can apply science. Scientifically, as we will explain, virtually all ‘‘waters of the U.S.’’ (including wetlands) are interconnected, and 

from an ecological perspective ‘‘waters of the U.S.’’ must therefore be an inclusive 

definition. To achieve the objective of the Clean Water Act, i.e., ‘‘to restore and 

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

therefore makes sense that the scientific definition should inform the more restrictive legal definition which seeks to define the subset of the Nation’s waters that 

needs to be protected by the Clean Water Act in order to achieve its objectives. 

Our testimony will therefore primarily address the scientific perspective of the 

definition of ‘‘waters of the U.S.’’ and wetlands in particular, and on the ecological, 

economic and societal consequences and potential impacts of the broad regulatory 

interpretations of the U.S. Supreme Court’s narrow decisions in the Solid Waste 

Agency of Northern Cook County and Rapanos-Carabell cases. 

WETLAND STATUS AND TRENDS

The Clean Water Act (CWA) has been an important component of the national 

framework of wetland conservation for over 30 years. It has been one of the most 

successful environmental programs in the nation’s history, and many aspects of the 

country’s water quality have improved measurably since 1972. Although the CWA 

has likely contributed to past declines in the rate of wetland loss, recent judicial 

decisions and regulatory actions have put much of the nation’s remaining wetland 

resources at increased risk of loss by effectively removing them from Federal CWA 

jurisdiction. 

The status of wetlands in the United States provides important context for our 

concerns about the extent to which they are protected by the Clean Water Act. Over 

50 percent of the estimated 221 million acres of wetlands originally present in the 

United States have been lost. Although the rate of wetland loss has decreased since 

the mid–1950’s, at least in some measure due to the passage of the Clean Water 

Act in 1972, recent studies document that nationwide losses of wetlands that are 

most important to waterfowl and other wildlife continue to exceed 80,000 acres per 

year. Discounting the addition of ponds that have little wildlife value, the Nation 

has had a net loss of over 16 million acres of wetlands since the mid–1950’s. Since 

1986, the Nation has lost over 2 million acres of vegetated wetlands and 1.4 million 

acres of freshwater marshes, among the most important types of wetlands for waterfowl and other wildlife. These kinds and magnitudes of losses not only have a cumulative negative impact on the waterfowl that our one million supporters care so passionately about, but also on the nation’s water quality and other Federal interests. 

WETLAND VALUES AND FUNCTIONS

Wetlands as Wildlife Habitat: Wetlands provide a broad array of ecosystem functions, each carrying some measure of ecological and societal value. For example, the 

millions of small wetlands of the prairie pothole region (PPR) of Minnesota, North 

and South Dakota, Montana and Iowa are among the most important wetlands to 

waterfowl on the continent. However, of the approximately 20 million potholes that 

once existed in the northern U.S., only about 7 million remain. Over 95 percent of 

the potholes in Minnesota and Iowa have been drained or filled. 

An estimated 50 percent of the average total annual production of ducks comes 

from the pothole region, and in wet years 70 percent or more of the continent’s duck 

production can originate in the PPR. One analysis suggested that duck production 

in the pothole region of the U.S. would decline by over 70 percent if all wetlands 

less than 1 acre in size were lost. However, wetland losses far less than this would 

significantly impact waterfowl numbers, and could result in closed waterfowl seasons with related economic impacts. In addition, 38 percent of the breeding ducks 

in the PPR of the Dakotas are associated with temporary and seasonal wetlands and 

wetlands less than one acre in size embedded in cropland. These wetland categories 

9 

are at the greatest risk of loss in the absence of adequate Clean Water Act protections. 

Unfortunately, significant losses of potholes continue to occur. The U.S. Fish and 

Wildlife Service’s most recent report on wetland status and trends for 1998–2004 

stated that, ‘‘Notable losses of freshwater vegetated wetlands occurred in the Prairie 

Pothole Region of eastern North and South Dakota, western Minnesota and Iowa.’’ 

The report also stated that 82,500 acres of freshwater wetlands across the country 

were lost annually during that period, with 85 percent being smaller than five acres 

in size, and 52 percent smaller than one acre. Small wetlands are among the most 

productive and valuable as habitat for wildlife. 

The prairie pothole region is but one example of a landscape that has lost a significant proportion of its wetlands, with the remaining wetlands being at significant 

risk. Wetland systems such as the playa lakes of the southern plains, vernal pools 

of California, and rainwater basins of Nebraska have been negatively impacted to 

a similar degree, or worse. Less than 400, fewer than 5 percent, of the original rainwater basins remain in Nebraska today. This means that migrating waterfowl are 

increasingly concentrated and increasingly dependent upon this diminished resource. Approximately 50 percent of the mid-continent mallards and 90 percent of 

mid-continent white-fronted geese depend upon these few wetlands during migration. When such large numbers of waterfowl are abnormally concentrated on so few 

water bodies, they are highly susceptible to outbreaks of virulent disease that can 

kill large percentages of whole populations. Thus, the continued declining trends in 

wetlands across the nation’s breeding, migration and wintering waterfowl habitats 

pose a significant threat to their future, to the future of waterfowl hunting, and to 

the other wetland-dependent and wetland-associated wildlife resources. 

Waterfowl are a valuable interState and international economic resource. Approxi- mately 1.8 million waterfowl hunters expended almost $1 billion in 2001 for hunting 

related goods and services, resulting in a total estimated economic output of $2.3 

billion, 21,415 jobs, and over $300 million in State and Federal tax revenue. Approximately 18 percent of waterfowl hunting in 2001 took place in a State other 

than the one in which the participant resided. For example, in North Dakota, 47 

percent of the state’s waterfowl hunters were non-residents, and in Arkansas over 

42 percent of 89,000 waterfowl hunters in 2002 traveled there from other states. 

Furthermore, commerce tied to the waterfowl resource and other wetland-associated 

fish and wildlife is not restricted to hunting. In 2001, nearly 20 million people participated in watching waterfowl and shorebirds, with an associated economic output 

of approximately $9.8 billion. 

Hydrologic Functions and Values of Wetlands: Wetlands provide important ecological goods and services to the Nation through the hydrologic functions they serve. 

For example, a primary function of wetlands is to store water, and this equates to 

protection of downstream landowners and communities from flooding. Floods cause 

an estimated $3.7 billion in annual damage in the U.S., and wetland losses have 

exacerbated this by causing ‘‘more flood for less rain.’’ The 1993 Midwest flood was 

(before Katrina) the largest flood disaster in U.S. history, causing $16 billion in 

damages. Approximately 60 million acres of wetlands in the Mississippi River watershed have been lost. Not entirely coincidentally, the three states with 75 percent 

of the damage in the 1993 flood (Illinois, Iowa and Missouri) have lost 89 percent, 

85 percent and 87 percent of their wetlands, respectively. The water storage function of our remaining wetlands is even more important now because, since the flood 

of 1993 in the St. Louis area alone and on land that was underwater in 1993, there 

have been 28,000 new homes built, population has increased by 23 percent, 6,630 

acres of commercial development has occurred, and there has been a total of $2.2 

billion in new development. 

Another example is the Red River Basin of northwest Minnesota and the eastern 

Dakotas. Approximately 75 percent of wetlands in this region have been drained, 

and the downstream portions of the area now experience major floods every 4–6 

years, and a flood classified as ‘‘devastating’’ every 10 years. Small pothole basins 

in the Devil’s Lake watershed in North Dakota could store 72 percent of the total 

runoff from a 2-year frequency flood and approximately 41 percent of the total runoff from a 100-year frequency flood. In a study of flooding in Massachusetts, the 

U.S. Army Corps of Engineers determined that flood damages would increase by $17 

million per year if the 8,400 acres of wetlands in the Charles River basin were 

drained. Thus, wetland protection is a critical element of reducing flood damage 

along the nation’s waterways, a hazard to which such areas are increasingly susceptible as a result of wetland loss. 

Other Wetland Functions: Virtually all wetlands improve the quality of water that 

they receive and then discharge, doing so through either direct, physical means such 

as trapping sediment and associated chemical constituents, or storing and recycling 

10 

nutrients and other chemicals. Evidence of the societal value of such water quality 

services is demonstrated by the actions of New York City to initiate a $250 million 

program to acquire and protect up to 350,000 acres of wetlands and riparian lands 

in the Catskills. The city is taking this action to protect the quality of its water supply as an alternative to constructing water treatment plants that could cost as much 

as $6–8 billion. In South Carolina, the wetland services provided by the Congaree 

Swamp negated the need for a $5 million wastewater treatment plant. Ducks Unlimited recently entered into a partnership with the National Association of Clean 

Water Agencies to help facilitate these kinds of actions. 

WETLANDS AT RISK: SCIENCE AND THE

LEGAL/REGULATORY LANDSCAPE

Estimating Wetlands at Risk: There are ranges of estimates of the percentage of 

the nation’s wetlands that have had Clean Water Act protections withdrawn from 

them as a result of the SWANCC and Rapanos/Carabell decisions in the U.S. Supreme Court, and the subsequent regulatory interpretations by the U.S. Army Corps 

of Engineers (USACE) and Environmental Protection Agency (EPA). The agencies 

estimated that 20 million acres would no longer be covered by the CWA as a result 

of the SWANCC decision. The Association of State Wetland Managers estimated it 

to be 30–60 million acres, or approximately 30–60 percent of the remaining wetlands. In the wake of the Rapanos/Carabell decision which resulted in the withdrawal of more wetlands from CWA jurisdiction, estimates have ranged from 40– 

80 million acres. 

In the wake of the SWANCC decision, Ducks Unlimited scientists reported in September 2001 the results of an assessment of the potential impact of the decision on 

wetlands in the landscapes most important to waterfowl. The post-SWANCC guidance had not yet been released, so a range of scenarios was evaluated. However, 

the worst-case scenario was closest to what has unfolded since 2001. This assessment estimated that up to 96 percent of the wetlands in the prairie pothole region 

and the Gulf Coast might no longer be considered jurisdictional (76 percent and 86 

percent of the area extent of wetlands in these regions, respectively). In the Great 

Lakes region, up to 90 percent of the remaining wetlands (33 percent of the wetland 

acreage) were considered at risk, whereas 88 percent of the wetlands (12 percent 

of the wetland acreage) of the mid-Atlantic Coast region were at risk. Overall, the 

vast majority of small, non-adjacent wetlands in the areas examined were put at 

significant risk of loss as a result of the SWANCC decision. The post-Rapanos guidance simply adds to the wetlands considered at risk in that evaluation. 

It is difficult, at best, for the scientific community to develop such estimates because terms such as ‘‘geographically isolated wetland’’ and ‘‘adjacent wetland’’ are 

legal constructs that lack any grounding in science. From a scientific standpoint, 

virtually all of the nation’s wetlands are linked to downstream or down slope navigable waters in one way or another. Although wetlands can be geographically isolated from navigable waters, and they can be sufficiently distant as to be referred 

to as non-adjacent in a colloquial sense, they almost always possess a hydrologic 

and/or ecologic nexus with navigable-in-fact waters. An appreciation of this fact is 

critical to understanding why the restoration of Clean Water Act protections is essential if the Nation is to fulfill the Act’s explicit purpose, which is ‘‘to restore and 

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

Significant Nexuses Between Geographically Isolated Wetlands and Navigable 

Waters Are the Rule: There are many examples of direct connections between navigable waters and wetlands that may on the surface appear to have no linkages between them, but the vast preponderance of related scientific studies document the 

significance of these connections to achieving the purposes of the CWA. During wet 

cycles in the pothole region, for example, water tables rise and surface water levels 

reach outlet elevations for most geographically isolated potholes, thereby augmenting other connections to downstream navigable waters. In the aggregate, these 

connections have a significant impact on downstream water quality and can significantly affect flood levels. These types of connections are demonstrable for many 

other wetland systems. 

In addition, geographically isolated and other wetlands very often contribute to 

groundwater recharge, and this groundwater then moves down slope toward flowing 

streams that ultimately terminate in navigable waters. For example, 20–30 percent 

of the water loss from prairie wetlands can be seepage to groundwater. Subsequent 

groundwater discharge into flowing streams over 16 miles away from these geographically isolated wetlands has been documented. The sand hill wetlands of Nebraska have direct linkages to the High Plains (Ogallala) aquifer, as do playa lakes 

farther south, and these wetlands are important recharge sites for the aquifer, 

11 

which stretches over thousands of miles and provides groundwater that is shared 

by eight states. Water is being withdrawn from this aquifer faster than it is being 

recharged, so additional loss of these types of geographically isolated, but 

hydrologically and ecologically connected wetlands will only exacerbate the decline 

of the aquifer with negative economic affects on farming, ranching, and communities 

in the region, and will result in the direct loss of critical wildlife habitat. In addition, this aquifer discharges naturally to flowing streams and springs that lead to 

the Platte, Republican and Arkansas Rivers. These linkages not only provide a connection that can affect water quality, but that are also important for maintaining 

base flows of navigable waters and their tributaries. If climate change, as is widely 

predicted, results in an increasingly variable climate with more frequent and severe 

drought in many areas, protecting wetlands that hold and slowly release water to 

downstream users will be increasingly important for maintaining wildlife habitat, 

and for providing the water that supports local and regional economies. 

In fact, the South Platte River in Colorado already has an economy built upon 

complex hydrologic models that incorporate knowledge of the time that water takes 

to move from sometimes far-removed, geographically isolated wetlands, to the river. 

Water has been valued and traded based on the knowledge that, in the example of 

the Tamarack project, it will take over a year for water in a wetland to makes its 

way to the river where it can then be used for base flows to support wildlife needs, 

irrigation, or other economic uses. The Brush Prairie Wetlands project is established 

on the basis of a 5-year transit time from the wetlands to the river, and the Little 

Bijou reservoir is 8 miles from the river with water being traded 12 years in advance of its transit via groundwater to the river. It is the certainty, significance, 

and predictability of these hydrologic nexuses that allows this water to be traded 

as a commodity with real value as part of an interstate/Federal agreement. 

The negative side of these kinds of hydrologic nexuses between geographically isolated wetlands and flowing waters is that pollutants can also be carried into navigable waters along with the water. For example, there are a number of Superfund 

sites in Macomb County, Michigan, the same county as the Carabell wetlands (June 

Carabell, et al. v. United States Army Corps of Engineers), in which volatile organic 

compounds, polychlorinated biphenyls, heavy metals and other compounds have 

leached from geographically isolated disposal sites into groundwater aquifers, private drinking water wells, and ultimately to the Clinton River. Without jurisdiction 

over geographically isolated wetlands, this kind of problem could become more widespread. 

Thus, wetland science clearly demonstrates the linkages that almost always exist 

between geographically isolated wetlands, remote tributaries, groundwater, and 

navigable waters, supporting the science-based contention that adjacency and significant nexus for determining jurisdictional wetlands must be interpreted from a 

functional perspective if water quality and quantity is to be protected as intended 

by the CWA. 

Science and the Post-Rapanos Guidance: Unfortunately, because of the variable 

and interacting interpretations of the scientific information and judicial perspectives 

of the nine justices, the Rapanos/Carabell decision ultimately created more uncertainty than previously existed. Five justices clearly understand that to fulfill the explicitly stated purpose of the Clean Water Act, wetlands and other waters with a 

significant nexus to navigable waters and Federal interests must be encompassed 

within the act’s jurisdiction. Justice Kennedy’s opinion was the pivotal one, and he 

articulated the concept of a significant nexus test, laying out the legal basis for a 

science-based conceptual approach with which to assess the jurisdictional status of 

wetlands and other waters. He explicitly stated that ecologic and hydrologic linkages, such as flood water storage, between wetlands and navigable waters should 

be considered. Most importantly for wetland ecosystems such as the prairie pothole 

region, rainwater basins, and playa lakes, he stated that the connections between 

navigable waters and the wetland in question in combination with similar wetlands 

in the region should be considered in a significant nexus test. In addition, he gave 

a strong indication of the importance he placed on such aggregate impact considerations when he stated that an example of the important public purposes that should 

be served by the Clean Water Act was to address water quality issues such as the 

huge hypoxic zone in the Gulf of Mexico, a significant problem that can only be addressed by protecting and restoring many wetlands across the interState landscape 

of the Mississippi River watershed. Thus, his opinion provided the opportunity to 

apply a scientific foundation for assessing jurisdictional status of all wetlands, regardless of distance or degree of isolation from navigable waters. 

Unfortunately, however, due to the nature of the above-described types of ecologic 

and hydrologic connections that exist between most wetlands and navigable waters, 

Justice Kennedy’s significant nexus test is virtually impossible to apply scientifically 

12 

and efficiently within an administrative and regulatory context. Thus, the agencies 

apparently struggled while developing the post-Rapanos guidance. Ironically, the 

net effect of the guidance is that it is in many ways the worst of all worlds it decreases the level of certainty and clarity that existed before the SWANCC and 

Rapanos cases, dramatically reduces the scope of Clean Water Act protections to the 

nation’s wetlands, and increases the administrative and regulatory burden on the 

agencies, thereby increasing the time required to adequately process permit applications. 

WETLAND PROTECTION AND PUBLIC OPINION

The public consistently demonstrates a fundamental concern for having clean, 

abundant water, and wetlands and other natural habitats that support healthy fish 

and wildlife populations and the associated recreational pastimes. A nationwide survey documented that 15 times more citizens believed there were too few wetlands 

than those who believed there were too many. The same survey showed that 91 percent of the public stated that it was important to protect and conserve wetlands, 

with only 3 percent being neutral or considering it unimportant. Furthermore, survey after survey has reinforced that the American public has a deep concern about 

water quality and has high expectations for water conservation. A recent Harris 

interactive poll documented that 74 percent of U.S. adults agreed that ‘‘protecting 

the environment is so important that requirements and standards cannot be too 

high, and that continuing environmental improvements must be made regardless of 

cost.’’ 

Thus, the American public, including Ducks Unlimited’s million supporters, expect 

that the health of our wetlands and other waters will be maintained for their individual interests and for the collective good of the Nation. 

CONCLUSIONS

This brief review outlines some of the key aspects of wetland and aquatic ecology 

that provides the scientific basis for protecting wetlands within the framework of 

the Clean Water Act, and including them within the legal definition of ‘‘waters of 

the U.S.’’ Some of the most important points are: 

• a majority of the nation’s wetlands have already been lost, and this has had 

a negative impact on the remaining wetlands and waters of the U.S. and related 

Federal and public interests; 

• wetlands serve important ecologic and societal functions, including providing 

critical habitats for waterfowl and other wildlife, providing flood control and base 

flows for rivers, streams and groundwater aquifers, and protecting and improving 

the quality of water that flows downstream to other users; and, these functions have 

an increasing value as wetlands continue to be lost; 

• as a consequence of recent Supreme Court decisions and subsequent interpretations by agencies that resulted in a regulatory framework that has not relied upon 

the best available science to ‘‘restore and maintain the chemical, physical and biological integrity of the Nation’s waters,’’ millions of acres of wetlands are now at 

significantly increased risk of loss due to the withdrawal of important CWA protections and increased regulatory uncertainty; 

• science supports the generalization that virtually all wetlands, in combination 

with similar wetlands in a particular region, possess significant hydrologic and 

ecologic nexuses with navigable waters and have a direct effect on the quantity and 

quality of such waters; 

• fulfillment of the primary purpose of the Clean Water Act requires the restoration of wetland protections that existed prior to the SWANCC decision. 

In light of all the above, it is clear that the nation’s remaining wetlands are at 

significant risk of loss, and the waterfowl, other wildlife, and related interests that 

depend upon these wetlands are similarly at risk. Passage of legislation such as the 

Clean Water Restoration Act is the only apparent remedy for restoring wetland protections that are at least as strong as those that existed prior to 2001. Wetland and 

hydrologic science provides the basis for such protection under the Clean Water Act. 

RESPONSES BY SCOTT C. YAICH TO ADDITIONAL QUESTIONS

FROM SENATOR BOXER

Thank you for the opportunity to address the five questions that Senator Boxer 

posed in follow-up to the December 13, 2007 Environment and Public Works ComVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
13 

mittee hearing on the topic of the Clean Water Act and wetland conservation. My 

answers appear below, following the questions as requested. 

Question 1. Carl Strock, the former Chief of Engineers for the Army Corps of Engineers has testified before this Committee about the role that wetlands play in natural flood control. During significant flooding, wetlands can act as a natural sponge, 

soaking in excess water. As a wetlands scientist, do you agree with this assessment 

and could you elaborate on these effects and benefits for the Committee? What role 

do wetlands play in protecting the integrity of traditional navigable waters and 

their tributaries from adverse effects of major weather events, such as Hurricane 

Katrina? 

Response. Wetlands, including geographically isolated wetlands, serve a critical 

function in any watershed in storing and holding water and associated pollutants 

(including sediment) that otherwise could flow swiftly and directly to navigable waters via their tributaries. Thus, they play a significant role in regional water flow 

regimes by intercepting storm runoff and storing and releasing those waters in a 

delayed fashion, either through surface or groundwater discharge. The presence of 

many wetlands decreases runoff velocity and volume by releasing water over an extended period, the net effect being to abate flooding by lowering and moderating the 

peaks of flood stages, thereby reducing flood damages. Study after study clearly documents this relationship, for example: one study showed that the presence of wetlands in watersheds was a significant factor in the reduction of 50-to 100-year 

floods; for selected watersheds in Minnesota the mean annual flood increases were 

inversely related to the percentage of lakes and wetlands within the watersheds; the 

decrease of 80 percent of the storage capacity of the Mississippi River as a result 

of levees and loss of forested and other wetlands is widely considered an important 

factor in the increased frequency of flooding along the Mississippi River; for relatively low frequency floods (those occurring with 100-year interval or greater, but 

those with the greatest potential for catastrophic losses) the increase in peak 

streamflow was significant for all sizes of streams when wetlands were removed 

from the watershed. Viewed on the whole, these kinds of studies provide a clear illustration that the collective contributions of small wetlands distributed across a 

landscape, and often located within topographically higher portions of the watershed 

and geographically isolated from flowing waters, can exert a very significant and demonstrable cumulative effect on floodwater storage and water quality improvement. 

The Prairie Pothole Region is the most important waterfowl breeding area on the 

North American continent. A number of studies concluded that the loss of 2/3 of 

these pothole wetlands has contributed significantly to flooding and increases in associated damages along the Red River of North Dakota and in portions of Minnesota 

and Iowa. Small wetlands in the Devil’s Lake watershed in North Dakota (many, 

if not most, geographically isolated) could store 72 percent of the total runoff from 

a 2-year frequency flood and approximately 41 percent of the total runoff from a 

100-year frequency flood. Studies in landscapes with other types of isolated wetlands have similarly demonstrated that drainage of such wetlands results in increased peak flows of navigable waters and their tributaries. 

The net effect of wetland loss and the loss of floodwater storage capacity, from 

the perspective of a landowner or community living downstream of the wetland 

losses, is simply stated as ‘‘more flood for less rain.’’ It is not entirely coincidental, 

for example, that the states of Illinois, Iowa, and Missouri experienced 75 percent 

of the approximately $16 billion of damage in the 1993 Midwest floods (the largest 

flood disaster in U.S. history before Katrina). These three states have lost 89 percent, 85 percent, and 87 percent of their wetlands, respectively. And, without adequate wetland protection and associated regulatory controls, there is an increased 

risk of flood damage. For example, on land that was underwater in 1993 in the St. 

Louis area alone, there have been 28,000 new homes built, a human population increase of 23 percent, 6,630 acres of commercial and industrial development, and a 

total of $2.2 billion in new development. These people, businesses, communities, 

their insurers, and taxpayers cannot afford to be subjected to ‘‘more flood for less 

rain.’’ 

As an illustration of the recognized value of these types of functional contributions 

of wetlands (including those that are isolated) to flood abatement in a watershed, 

the city of Boston is acquiring 5,000 acres of wetlands in the Charles River watershed to avoid the necessity of constructing a $100 million dam for flood control. In 

a related study, the U.S. Army Corps of Engineers determined that flood damages 

would increase by $17 million per year (in 1972 dollars) if the 8,400 acres of wetlands in the Charles River basin were drained. The University of North Dakota has 

studied flood control options in the Red River basin, where 75 percent of the wetlands have been drained and there is now a major flood every 4–6 years and a devastating flood every 10 years. These researchers have demonstrated that the storage 

14 

of flood water in the basin using non-structural flood control mechanisms (including 

wetland conservation) would cost an estimated $32–37 per acre-foot of water, compared to $91/acre——foot to $213/acre-foot using conventional structural approaches 

(e.g., dams and levees). They indicated that the $2–3 billion in flood damages resulting from a 1997 flood could have been avoided with less than a $90 million investment in non-structural flood control, including wetland conservation. 

With respect to coastal storm events such as Hurricane Katrina, it is known that 

coastal marshes can reduce the extremely damaging effects of storm surges. It was 

estimated that the storm surge of Hurricane Andrew, for example, was reduced by 

4.4 to 6 feet by coastal marsh. As a general estimate, storm surge is reduced by 

approximately one foot for every 2.7 miles of wetlands. Thus, the extensive loss of 

coastal marsh that has taken place along the Gulf Coast resulted in greater damage 

to inland areas from Hurricanes Katrina and Rita than would otherwise have occurred. 

Question 2. Many of southern California’s waterways flow intermittently, yet they 

provide critically important habitat to numerous species of wildlife. Can you elaborate on the ways seasonal streams are important for fish and wildlife habitat? 

Response. I must admit that I am a wetland scientist and not a stream scientist, 

so there are others who could provide much stronger and more complete answers 

to this question. For that I apologize, but I will attempt to provide some perspective 

and information related to the topic of intermittent streams, by relating below a section (written by a colleague, Dr. Helen Neville of Trout Unlimited) taken from a 

soon-to-be-released jointly published report. 

‘‘Small springs and streams can have tremendous biological value, even when 

intermittent, unconnected to waters outside the State (i.e., ‘‘terminal’’), or ephemeral. In the Southwest, [including southern California,] many streams and even 

mainstem rivers are at least spatially intermittent, drying up in all or portions of 

their run during dry seasons. Yet, despite not using them at certain times of the 

year, trout and other fishes, amphibians, and many aquatic invertebrates in the 

Southwest are adapted to persisting in these environments, by either moving to 

seek deeper waters and re-colonizing previously dry reaches when available, or becoming dormant until flow levels increase. These seasonally dry streams not only 

provide habitat that simply adds more space in which these organisms can live, but 

they provide specific and unique habitat some species require during certain life 

stages. For instance, small and even intermittent streams provide important spawning and rearing habitat for trout, with requisite lower flows for early life stages and 

protection from competitors or predators that cannot spawn in or use these smaller 

habitats. Furthermore, because of their complex nature, small headwater streams 

provide a diversity of habitat and are important sources of biodiversity. Species such 

as salamanders, minnows and aquatic insects often have very small geographic 

ranges, and in many cases substantial proportions of their ranges are found only 

in first or second order streams. Additionally, many waters in the Southwest are 

considered terminal, but because they are the majority of waters in some regions 

they encompass large amounts of habitat for many species. In Nevada, for instance, 

terminal waters comprise the entire range for important federally listed species 

such as Lahontan cutthroat trout. 

Aside from providing habitat directly, small streams including those that are 

intermittent or ephemeral provide an essential interface between land and water 

and upstream and downstream habitats. Many organisms depend on allochthonous 

sources of food, or food which is deposited in water from terrestrial habitats, and 

the transfer of these food types is much greater in these small streams characterized by a higher land-water interface. These streams also export adult emerging 

aquatic insects to terrestrial systems, providing an important food source for higher 

levels in the food chain. According to [one] study, emerging adult stream insects can 

provide 25-100 percent of the energy to organisms such as birds, bats, salamanders, 

beetles, spiders, and these organisms support yet many others of recreational and 

ecological value higher in the food chain. Desert streams can be particularly productive in this sense because warmer water temperatures facilitate rapid insect growth 

and a greater flux of food to terrestrial organisms. In fact, as the authors of the 

Baxter study put it, in streams of arid ecosystems ‘‘the export of emergent insects 

may be essential to fuel terrestrial predators.’’ Furthermore, small streams transfer 

invertebrates and organic material to downstream reaches that are critical for the 

maintenance of species in these habitats. In one case, fishless headwater streams 

were estimated to export enough drifting insects and other invertebrates to support 

approximately half of the fish production in downstream waters.’’ 

Question 3. This Committee has spent a considerable amount of time on the issue 

of global warming this year. What are the likely impacts of global warming on wetVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
15 

lands and other waters of the United States? What are those likely impacts on 

water quality, wildlife, and America’s recreation economy? 

Response. Climate change likely will affect wetlands, waterfowl, and water quality 

and quantity in a variety of ways. Some degree of climate impacts is predicted for 

wetlands and other habitats in nearly every region important to waterfowl in North 

America. Increasing greenhouse gas concentrations will cause a rise in air, soil and 

water temperatures—including wetlands, lakes, streams, rivers, estuaries, and 

oceans—which will challenge even the most adaptive wetland plants and animals. 

Changes in precipitation and more intense storm events associated with intense 

rainfall and associated erosion will have a negative impact on streams and wetlands 

in some areas. While it is certain that climate plays an important role in the health, 

functioning and distribution of wetlands, specifically how and to what extent climate 

change will impact particular regions and the wetlands there is not yet predictable 

with certainty. 

Wetland and waterfowl habitat conservation presents opportunities to reduce net 

CO2 emissions to the atmosphere or to increase the net uptake of carbon from the 

atmosphere through biological carbon sequestration. Protecting these habitats will 

help the country prevent or mitigate some climate change impacts. One of the most 

significant and costly impacts of climate change is the sea level rise that will cause 

inundation of coastal areas, shoreline erosion, and destruction of important wetland 

and mangrove ecosystems. In past eras of sea level rise, wetland systems could naturally retreat inland, but roads and coastal infrastructure has precluded this option 

along much of the U.S. coastline. Thus, the area of coastal wetlands is predicted to 

diminish greatly during this century. Reduction in coastal marsh habitats is expected to be most severe along the U.S. Gulf and Atlantic coasts where effects of 

sea level rise is compounded by subsidence and freshwater and sediment diversions. 

Water quality and quantity can also be affected by climate change in several 

ways. According to the EPA Climate and Policy Assessment Division, in a warmer 

climate, higher temperatures, increased evaporation, and changes in precipitation 

could significantly influence runoff in the Mississippi Alluvial Valley. Lower river 

flows, lake levels, and groundwater levels in the summer would affect water availability and increase competition among domestic, industrial, and agricultural uses 

of water, as is being observed in other parts of the Southeast. Declining groundwater levels are already a significant concern throughout parts of Mississippi, Louisiana and Arkansas. Warmer and drier conditions, particularly when accompanied 

by sea level rise, could compound problems of inadequate water supplies due to 

higher demand and lower flows. If increased precipitation occurred, it could help alleviate some water supply problems, but would increase flooding, erosion, and levels 

of pesticides and fertilizers in runoff from agricultural lands, a major water quality 

issue there. 

The quality of groundwater is also being degraded in several areas of the U.S. by 

a variety of factors that could be made worse as a result of climate change, including saltwater intrusion. As groundwater pumping increases to serve municipal and 

agricultural demand along the coast and less recharge occurs, groundwater aquifers 

are increasingly affected by seawater. Surface water supplies, which are more sensitive to climate change and variability, are being relied upon more, which further 

exacerbates water quantity conflicts. 

From an economic perspective, sportsmen and sportswomen spend approximately 

12 million days hunting waterfowl annually in the U.S. Waterfowl viewing is also 

popular among the more than 46 million birders. The effects of increased drought 

in the Prairie Pothole Region of the northern U.S. and central Canada, brought on 

by climate change, could significantly reduce the average population of ducks. Declines in duck numbers would have an impact on waterfowl hunting and viewing 

opportunities and a subsequent loss of revenue associated with waterfowl-related 

recreation. Declines from loss of breeding habitat could be exacerbated by loss of migratory habitat. In 2001, there were 1.8 million waterfowl hunters who spent nearly 

30 million recreational days each year hunting waterfowl. They expended nearly $1 

billion annually for waterfowl hunting on trips and equipment (not including boats, 

campers, vehicles, etc.). This economic activity generated a total economic output of 

$2.3 billion, 21,415 jobs, and $725 million in employment income, in addition to over 

$330 million in taxes. Waterfowl hunting is big business and any major changes in 

hunting opportunity as a result of climate change will have significant impacts on 

that business. 

Question 4. Many scientists agree that wetlands provide significant water quality 

benefits. Could you explain how healthy wetlands help improve the quality of water 

that our families depend on each day? Do wetlands lessen the need for water treatment infrastructure, and if so, are there cost savings to communities? 

16 

Response. It is well established that wetlands provide significant water quality 

benefits by trapping, precipitating, transforming, recycling, and/or exporting many 

of its chemical and waterborne constituents. They serve as a natural buffer zone between upland drainage areas and open or flowing water. They can improve water 

quality by removing heavy metals and pesticides from the water column, and by facilitating the settling out of sediment particles to which many pollutants are attached. Wetlands remove excess nutrients, e.g., phosphorus and nitrogen compounds, by incorporating them into plant tissue or the soil structure and by fostering an environment in which microbial and other biological activity pulls these 

compounds out of the water, thereby enhancing its quality. 

Importantly, water quality contributions of wetlands can occur no matter where 

the wetland occurs on the landscape, and even geographically isolated waters also 

serve as chemical and nutrient sinks, trapping and holding these compounds. For 

example, it has been shown that when water naturally filters through Delmarva 

bays instead of being circumvented through drainage canals to flowing waters, it 

flows through groundwater pathways and reaches the Chesapeake Bay with much 

of its nitrogen having been removed. Nitrogen is one of the principal pollutants of 

concern in the waters of the Chesapeake Bay. In another study, a wetland receiving 

discharges of treated sewage removed 4.9 tons of phosphorous, 4.3 tons of ammonia, 

and 138 pounds of nitrate each day, while adding 10 tons of life-supporting oxygen 

to water entering a tributary to the Delaware River. 

Even geographically ‘‘isolated’’ playa lake wetlands can improve the water quality 

of storm runoff, with the water quality in some playas being better than that found 

in storm runoff entering wetlands. Playas are often a source of groundwater recharge, so this wetland function contributes to maintaining the quality of groundwater used for drinking and irrigation and shared by several states. Because some 

of this groundwater discharges naturally into streams and springs, from a functional perspective, there is therefore a significant nexus between the status and 

water quality of the playas and the status and water quality of groundwater 

aquifers, and finally flowing waters and tributaries. 

It has been demonstrated recently that some wetlands in California were able to 

remove an average of 69 percent of the selenium contained within agricultural runoff to the wetlands, thereby naturally reducing the availability of this trace element 

which becomes toxic when it is bioaccumulated through the food chain. Studies have 

also shown the ease with which changes in the chemistry of surface waters, including wetlands, are transported and reflected in the water quality of groundwater. For 

example, where protection has been lax and toxic chemicals have been introduced 

into some isolated wetlands in the same county in Michigan in which the Rapanos 

wetlands are located, domestic water supply wells have been contaminated and the 

wetlands and immediate vicinity had to be declared a superfund site. 

The increased flood flow that is directly associated with the loss of wetlands is 

an important factor in streambank erosion, which is a significant water quality 

problem in many downstream areas in the U.S., contributing significantly to sediment pollution loads in flowing waters. Sedimentation, including streambank erosion, has created navigation and ecological problems on the Illinois River. 

The tangible economic value of water quality services provided by wetlands, including isolated wetlands, is demonstrated by the example of New York City in 

which conserving wetlands enabled the city to save billions of dollars. A program 

was initiated to acquire and protect up to 350,000 acres of wetlands and riparian 

lands in the Catskills at the cost of several hundred million dollars to protect and 

maintain the city’s drinking water quality to EPA standards. This action by the city 

has successfully maintained the quality of its water supply as an alternative to constructing water treatment plants which could cost as much as $6-8 billion plus annual operating costs of $300 million. In South Carolina, a study documented that 

without the wetland services provided by the presence of Congaree Swamp a $5 million wastewater treatment plant would be required. 

These are but a few examples of how wetlands benefit water quality, communities, and individual taxpayers and homeowners. If wetlands are unprotected and 

continue to be lost, the quality of the nation’s surface and groundwater will inevitably suffer, and the costs of treating drinking water and water for other domestic 

uses will unavoidably increase. 

Question 5. Once streams, tributaries, wetlands and other aquatic habitat are 

filled and lost, is there any effective way to mitigate for or replace such losses? 

Response. Again, being a wetland scientist, I will speak to the question from a 

wetland perspective. Although not a stream scientist, I am aware that restoration 

of stream habitats is an art and science that is still in its earliest stages. It lags 

behind the science of wetland restoration and mitigation, thus the issues and conVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
17 

cerns I will point out relative to wetlands are even more serious concerns when 

viewed from the perspective of streams and tributaries. 

There are two perspectives from which to view the effectiveness of mitigation of 

wetland losses regulatory effectiveness, and functional effectiveness. Both were addressed by the National Academy of Sciences in 2001 in their exhaustive examination and 322-page report on ‘‘Compensating for Wetland Losses Under the Clean 

Water Act.’’ It is important to note that they conducted their review prior to the 

U.S. Supreme Court’s SWANCC decision. Their primary conclusion was that ‘‘the 

goal of no net loss is not being met for wetland functions by the mitigation program, 

despite progress in the last 20 years.’’ Another conclusion was that ‘‘performance expectations in the Section 404 permits have often been unclear, and compliance has 

often not been assured nor attained.’’ Thus, even before the SWANCC and Rapanos 

decisions, wetland losses were not being effectively mitigated. With the removal of 

millions of acres of wetlands from regulatory protection in the wake of SWANCC 

and Rapanos, it is safe to say that wetland losses in the U.S. are being mitigated 

even less in 2008 than they were at the time of the National Academy of Sciences 

report. 

From the standpoint of whether the functions of wetlands and other aquatic habitats can be effectively replaced or mitigated, the answer must be qualified. The most 

accurate overarching answer would be, ‘‘no, there is no effective way to mitigate for 

or replace such losses.’’ However, that answer must be qualified because some will 

point out that some individual wetland functions can be mitigated in a reasonably 

effective way. For example, a hypothetical 100-acre wetland that averages 2 feet in 

depth could provide a floodwater storage function for 200 acre-feet of water. If that 

wetland were drained or filled, that water storage function could be mitigated with 

an excavated 10-acre hole that was 20 feet deep. 

However, without the vegetation that naturally occurred in the 100-acre wetland 

and which could not be regenerated in the artificial waterbody, that 10-acre waterfilled hole would not provide mitigation for the wildlife habitat that was lost with 

the 100-acre wetland. It would also not be able to provide the water quality maintenance and improvement functions that were being provided in the natural wetland. 

Other functions would similarly not be effectively replaced. 

Thus, while some studies document adequate mitigation of some wetland functions in replacement wetlands, at a national scale the broad spectrum of functions 

provided by natural wetlands is not being completely and cost-effectively mitigated. 

This fact underscores the importance of protecting the Nation’s remaining wetlands. 

It is far more effective and efficient to protect existing wetlands than it is to attempt 

to replace wetland functions through artificial mitigation. As a result of the uncertainties associated with the nascent art and science of stream restoration, this is 

even truer for streams and tributaries. 

On behalf of Ducks Unlimited, I would like to express my appreciation for the opportunity to provide answers to Senator Boxer’s questions, and expand upon our testimony on this critical issue. I hope that my answers will provide perspectives that 

are useful to the committee members. 

Senator BOXER. Thank you, sir. Just perfect timing. 

Our next speaker is Duane Desiderio, Legal Affairs, Staff Vice 

President, for the National Association of Home Builders. Welcome, 

sir. 

STATEMENT OF DUANE DESIDERIO, LEGAL AFFAIRS, STAFF 

VICE PRESIDENT, NATIONAL ASSOCIATION OF HOME BUILDERS 

Mr. DESIDERIO. Thank you, Madam Chair, Ranking Member 

Inhofe and distinguished members of the Committee. Thank you 

for the opportunity to testify on behalf of the National Association 

of Homebuilders. 

NAHB represents over 235,000 corporate members that in turn 

employ millions of individuals in all facets of the residential construction industry. NAHB’s members are proud to be part of the 

Clean Water Act’s great success. As they provide housing for our 

Nation’s citizens, our members avoid and minimize impacts on 

aquatic resources through residential site design and routinely provide mitigation beyond project impacts. 

18 

As you are well aware, the housing industry is experiencing one 

of the greatest downturns in history. This has had a profound effect on the national economy, as housing affordability and finance 

have been severely impacted throughout 2007. NAHB believes that 

Congress should focus its limited time and resources on legislation 

to help homeowners overcome the current crisis rather than pursue 

measures that will restrict the industry’s ability to recover. 

Recent legislation proposals that would expand the Clean Water 

Act’s scope to cover virtually all intraState waters would harm our 

already distressed industry. Stretching the Act to include features 

like isolated ponds, ephemeral washes and drainage ditches will require the agencies to process thousands of more permits, straining 

an already-burdened regulatory program. 

Such changes would not be consistent with the original intent of 

Congress when it enacted the Act back in 1972. Current supporters 

of expansive Federal control cite to a 1972 conference report that 

the term ‘‘navigable waters’’ must be given the broadest possible 

constitutional interpretation. That statement must be placed in 

proper historic context. 

Back in 1972, Congress expressed frustration that the Army 

Corps was not regulating to the fullest extent regulated by case 

law. Courts had confirmed that traditional navigable waters encompassed waters that are wholly intraState, which served as links 

in the chain of commerce and connected to land-based channels of 

transportation. Congress sought to expand Federal power to encompass features like Lake Chelan in Washington State, a body of 

water 55 miles long, almost 2 miles wide, and navigable in fact but 

intraState, and not connected to other water-based highways of 

commerce. This is what the 1972 conferees had in mind when they 

wanted to give the broadest possible constitutional interpretation 

to the phrase navigable waters. The founders of the Clean Water 

Act had no intent to subject isolated ponds, ephemeral washes, upland ditches or the like to Federal control. 

Sweeping such features within the Federal regulatory net would 

raise serious constitutional questions. As the Supreme Court stated 

in the 2001 SWANCC case, regulation of isolated intraState waters 

invokes the outer limits of Congress’ navigation authority. It also 

overrides the usual balance of Federal and State powers so intrinsic to our constitutional framework. 

In a case prior to SWANCC, the Fourth Circuit Court of Appeals 

declared illegal Corps and EPA regulations over intraState lakes, 

wetlands, prairie potholes and other features that lacked any nexus 

whatsoever to traditional navigable waters. As the Fourth Circuit 

wrote in this case, were this regulation a statute duly enacted by 

Congress, it would present serious constitutional difficulties. Thus, 

if Congress now enacted legislation of such immense jurisdictional 

magnitude, it would immediately raise the specter of its constitutionality. 

Advocates for a broader jurisdictional scope also maintain that 

the Supreme Court’s recent decision in Rapanos confused the regulatory landscape. It is true that Rapanos failed to garner a majority 

of the Court. However, five Justices did agree to important principles that have provided necessary and valuable instruction. Chief 

among them is that while non-navigable features can be subject to 

19 

the Clean Water Act, they must bear more than a hypothetical or 

potential connection to traditionally navigable waters. 

As Justice Kennedy wrote in concurrence, when wetlands’ effects 

on water quality are speculative or insubstantial, they fall outside 

the zone fairly encompassed by the phrase navigable waters. As a 

result of this consensus among the Justices, lower courts are now 

taking a close look at the facts before them to determine if a particular non-navigable water feature has the required connection to 

navigable in fact waters. Clean Water Act law and policy only 

stand to gain as the agencies develop better factual evidence in the 

field to support their jurisdictional determinations over private 

property. 

Thank you for your consideration. I look forward to answering 

your questions. 

[The prepared statement of Mr. Desiderio follows:] 

STATEMENT OF DUANE DESIDERIO, LEGAL AFFAIRS, STAFF VICE PRESIDENT, 

NATIONAL ASSOCIATION OF HOME BUILDERS

Madame Chair, Ranking Member Inhofe, and distinguished members of the Committee, thank you for the opportunity to testify on behalf of the National Association 

of Home Builders (NAHB). My name is Duane Desiderio and I am Staff Vice President for Legal Affairs at NAHB. I appreciate the opportunity to talk about the case 

law and legislative history surrounding the Clean Water Act (CWA) over the past 

35 years. NAHB is a Washington, DC.-based trade association representing 235,000 

corporate members that, in turn, employ millions of individuals in the home building, remodeling, multifamily construction, property management, subcontracting, 

design, housing finance, building product manufacturing, and light commercial construction industries. NAHB’s chief goal is to provide and expand opportunities for 

all consumers to have safe, decent and affordable housing. 

NAHB and its members have been advocates of the CWA since its inception. The 

CWA has helped the Nation make significant strides in improving the quality of our 

water resources. Due to the nature of home building activities, NAHB members 

must often obtain section 402 and 404 permits for their home building projects. Beyond the permit requirements, our members regularly design their projects to avoid 

sensitive areas, showcase natural resources, and mitigate adverse impacts. As an organization, NAHB has tirelessly advocated for the CWA and an associated permitting scheme that is consistent, predictable, timely, and focused on protecting true 

aquatic resources. NAHB has also strongly supported implementing measures that 

honor the congressional intent to provide a cooperative Federal and State program 

where the Corps’ and EPA’s efforts are complemented by states’ efforts. 

As you are well aware, while NAHB and its members have continued to work 

with the Corps and EPA on required permits, the housing industry has been experiencing one of the greatest housing downturns in recent memory. Housing affordability, accessible housing and housing finance, primary components to NAHB’s mission and philosophy, have been severely impacted throughout 2007. NAHB believes 

that Congress should focus its limited time and resources on legislation to help 

homeowners overcome the current crisis, rather than pursue legislative ideas that 

will restrict the industry’s ability to recover. 

By improving its implementation, removing redundancy, and further clarifying 

roles, the CWA can do an even better job at facilitating compliance and protecting 

the aquatic environment. For years, landowners and regulators alike have been 

frustrated with the continued uncertainty with the scope of Federal jurisdiction over 

‘‘the waters of the United States’’ under the CWA. However, legislative amendments 

or changes to the CWA that would vastly increase Federal regulatory power over 

private property, and open the door for increased litigation and permit requirements, will not benefit the home building industry. Such proposed changes are not 

consistent with the original legislative intent of the CWA back in 1972. They would 

also represent a marked departure from Supreme Court decisions and raise significant constitutional questions. This testimony will show: 

1. In 1972, the 92d Congress was frustrated that, at that point in time, the Corps 

was taking a too-narrow view of its authority over traditional navigable waters. 

Thus, in enacting the CWA, Congress intended to expand jurisdiction to cover all 

aquatic links in the chain that served as a highway of interState commerce. The 

20 

original intent of the CWA framers in 1972 was to include a greater number of waters that served as channels of interState commerce, as long as they connected to 

land-borne modes of transportation—even though such aquatic features were themselves intraState and did not connect to other waterbodies. Review of the legislative 

history reveals that, in 1972, Congress did not intend to sweep all intraState features that did not support commercial traffic, such as isolated waters, drainage 

ditches, and erosional depressions, into the Federal regulatory net. 

2. Prior to Solid Waste Agency of Northern Cook County (SWANCC), there was 

rampant confusion in the courts regarding the CWA’s scope. Several of the U.S. circuit courts of appeals questioned the validity of the migratory bird rule, the primary 

theory used by Federal agencies to assert CWA jurisdiction over isolated, intraState 

waters in the pre-SWANCC era. One court went so far as to strike regulations of 

the U.S. Army Corps of Engineers (‘‘Corps’’) as illegal, because they raised significant questions under the Commerce Clause of the U.S. Constitution. Contrary to the 

belief held by those who now seek CWA expansion beyond all magnitude, SWANCC 

clarified the pre-existing confusion in the courts regarding the status of isolated waters. 

3. While the Rapanos decision did not garner a majority of the Court to articulate 

an over-arching test for CWA jurisdiction to apply in all situations, there are many 

areas of consensus among the five Justices who concurred in the judgment. Questions remain after Rapanos, but that case has clarified many points of law to which 

the lower courts are now adhering. Chief among them is that a majority of the 

Court stated that CWA jurisdiction could not be supported though a remote, attenuated connection to traditional navigable waters. Moreover, the Justices called for 

agency rulemaking, and the Federal Government’s recent effort to address Rapanos 

with field guidance should be given a chance to work. 

CONGRESS’S INTENT IN 1972, WHEN IT ENACTED THE CLEAN WATER

ACT, WAS TO EXPAND ONLY THE SCOPE OF TRADITIONAL NAVIGABLE

WATERS SERVING AS HIGHWAYS OF COMMERCE. 

The Conference Report supporting the 1972 Act states: 

The conferees fully intend the term ‘‘navigable waters’’ be given the broadest possible constitutional interpretation, unencumbered by agency determinations which 

have been made or may be made for administrative purposes. 

S. Rep. No. 92-1236, at 144 (1972), reprinted in 1 congressional Research Serv., 

Legisl. Hist. of the Water Pollution Control Act Amends. of 1972, at 327 (hereafter, 

‘‘CWA Legislative History’’). To gain a full understanding of what the 1972 conferees 

actually intended, it is critical to consider the full context of congressional action 

in the water arena back in the 1970’s. Scrutiny of the legislative history shows that 

the 1972 CWA indeed expanded the Federal role over water features, to advance 

the national effort to control water pollution. The crucial point, however, is this: 

Congress’s intent in 1972 was to enlarge the scope of waters that served as highways for commerce. Its purpose was not to assert Federal authority over all intraState waters that had remote, trivial, or tenuous connections to interState commerce. 

A. Early 1970’s congressional Oversight Regarding the Rivers and Harbors Act. 

In the months immediately preceding the CWA’s 1972 enactment, Congress held 

hearings regarding the Corps’s implementation of the Rivers and Harbors Act of 

1899 (‘‘RHA’’). Among other things, the RHA outlaws ‘‘obstruction to the navigable 

capacity of any of the waters of the United States,’’ and authorizes the Corps to 

issue permits for excavation or fill within ‘‘any navigable water of the United 

States.’’ RHA section 10, 33 U.S.C. § 403. Congress expressed frustration that, at 

that time, the Corps took a too-constrictive view of its RHA jurisdiction over traditional navigable waters. See generally Virginia S. Albrecht and Stephen M. 

Nickelsburg, Could SWANCC Be Right? A New Look at the Legislative History of 

the Clean Water Act, 32 ELR 11042, 11044–46 (2002). A 1972 report from the 

House Committee on Government Operations stated that the Corps ‘‘narrowly defined the waters to which [the RHA’s] provisions apply, and thus severely limited 

the scope of the law.’’ H.R. Rep. 92–1323, at 27. Congress believed that the Corps 

unnecessarily bounded its RHA purview to the time-worn test for navigability announced 100 years earlier in The Daniel Ball, 77 U.S. 557, 563 (1870), that waters 

are ‘‘navigable in law when they are navigable in fact. And they are navigable in 

fact when they are used, or susceptible of being used, in their ordinary condition, 

as highways for commerce, over which trade or travel are or may be conducted.’’ The 

House Committee believed that the Corps had ignored jurisprudence from the first 

21 

half of the 20th century, where the Supreme Court recognized that Federal authority stretched to encompass non-navigable waters that may be made navigable-in-fact 

with ‘‘reasonable improvements.’’ United States v. Appalachian Elec. Power Co., 311 

U.S. 377, 407-09 (1940). See also Econ. Light & Power Co. v. United States, 256 

U.S. 113, 118 (1921) (non-navigable points on Des Plaines River ‘‘above the head 

of steamboat navigation’’ regarded as navigable-in-law). 

Accordingly, in 1972 hearings, the House took the Corps to task for not exercising 

RHA jurisdiction consistent with modern judicial expansions. The Government Operations Committee reported that Corps regulations at that time ‘‘were based on 

similar language used over 100 years ago in. . . The Daniel Ball,’’ but: 

[M]ore recent judicial opinions have substantially expanded that limited view of 

navigability to include waterways which could be ‘‘susceptible of being used. . .

with reasonable improvements,’’ as well as those waterways which include sections 

presently obstructed by falls, rapids, sand bars, currents, floating debris, etc. 

H.R. Rep. No. 92-1323, at 29-30. Those ‘‘recent judicial opinions’’ cited by the 

House were nine cases from 1874 through 1965, including Appalachian Power and 

Economy Light. None of those decisions involved anything remotely resembling a 

drainage ditch, an ephemeral wash, or an isolated pond. Rather, this 1972 House 

Report endorsed Federal regulation over non-navigable features, or non-navigable 

segments of navigable waters, as needed to service the constitutional power to regulate navigation under the Commerce Clause: 

The plenary Federal power over commerce must be able to develop properly with 

the needs of that commerce which is the reason for its existence. It cannot properly 

be said that the Federal power over navigation is enlarged by the improvements to 

the waterways. It is merely that improvements make applicable to certain waterways the existing power over commerce. 

Appalachian Power, 311 U.S. at 409 (emphasis supplied). Thus, the court cases 

considered by Congress in its early 1970’s review of the RHA upheld Federal authority over non-navigable features, but only as necessary to effectuate the Federal navigation power. 

The 1972 House strongly encouraged the Corps to extend its regulations beyond 

the limits of The Daniel Ball, and to encompass large intraState bodies of water 

that connect as part of a land-based chain of commerce including roads, railroads, 

and other transportation channels. What Congress had in mind for Federal protection, which had escaped Corps regulation to that point in the early 1970’s, were bodies of water like Lake Chelan in Washington State: 

Another instance of the [C]orps’ limited view of its responsibilities has been its 

opinion that it cannot exercise jurisdiction over waters which, although clearly navigable, do not ‘‘form in their ordinary condition by themselves, or by uniting with 

other waters, a continued highway over which commerce is or may be carried on 

with other states or foreign countries. . . .’’ For example, the Acting Chief of Engineers informed the subcommittee, by letter of February 20, 1970, that Lake Chelan—a body of water 55 miles long and almost 2 miles wide in the State of Washington, and clearly navigable—‘‘is not considered by the Corps of Engineers to be 

a navigable waterway of the United States,’’ because ‘‘navigation on Lake Chelan 

cannot form a part of either the interState or international system.’’ 

Although most interState commerce 150 years ago was accomplished on waterways, there is no requirement in the Constitution that the waterway must cross a 

State boundary in order to be within the interState commerce power of the Federal 

Government. Rather, it is enough that the waterway serves as a link in the chain 

of commerce among the States, as it flows in the various channels of transportation 

(highways, railroads, air traffic, radio and postal waterways, etc.) The ‘‘gist of the 

Federal test’’ is the waterways’ use ‘‘as a highway,’’ not whether it is ‘‘part of a navigable interState or international highway.’’ Utah v. United States, 403 U.S. 9, 11 

(1971). . . . 

H.R. Rep. No. 92-1323, at 30 (emphasis supplied). The Government Operations 

Committee thus urged the Corps to enlarge its RHA jurisdiction, to regulate ‘‘all waterways. . . which are now, or were, or may in the future be, capable of being used 

for purposes of interState or foreign commerce, irrespective of whether the waterway itself crosses a State line, irrespective of when, how or by what mode, such use 

actually occurs, and irrespective of the quantity or kind of items of commerce such 

use affects.’’ Id. at 31-32. Following this congressional oversight, the Corps expanded 

its regulations. See 37 Fed. Reg. 18279 (Sept. 9, 1972). 

Thus, the issue for Congress in the early 1970’s, while it deliberated the extent 

of the RHA’s reach and Corps administrative interpretations there under, was that 

the agency did not go as far as it needed in regulating traditional navigable waters. 

Congress perceived ample room within the available bounds of the navigation power 

under the Commerce Clause—which the Corps was not exercising. 

22 

B. Legislative History of the 1972 Clean Water Act. 

The legislative debate surrounding enactment of the Federal Water Pollution Control Act Amendments of 1972 draws important context from Congress’s contemporaneous RHA analysis. Indeed, key Members of Congress who endorsed 1972 CWA reform cited portions of the RHA legislative history verbatim to explain their views 

of the new law. 

It was logical for the CWA amenders to place heavy reliance on the congressional 

reports regarding the RHA. Both statutes depend on concepts of navigability as 

touchstones for their jurisdictional reach. Rep. John D. Dingell (D-MI), the House 

floor manager for the 1972 CWA, cited key passages from the House Government 

Operations Committee report discussed above, in making his personal statement on 

the CWA conference bill. In remarking on the conferees’ new definition of ‘‘navigable 

waters’’ as ‘‘the waters of the United States’’ (which remains the current definition 

codified at 33 U.S.C. § 1362(7)), Rep. Dingell stated: 

The new and broader [CWA] definition is in line with more recent judicial opinions which have substantially expanded that limited view of navigability—derived 

from the Daniel Ball case . . .—to include waterways ‘‘susceptible of being 

used. . . with reasonable improvements,’’ as well as those waterways which include sections presently obstructed by falls, rapids, sand bars, currents, floating debris, et cetera. . . . 1 CWA Legislative History, at 250 (emphasis supplied); compare to H.R. Rep. No. 

92-1323, at 29-30 (discussed supra p. 5). Thus, just like Congress’s study of the 

RHA, Rep. Dingell sought the same expansion of ‘‘navigable waters’’ beyond The 

Daniel Ball test, but he did so here for CWA purposes. And as evidence of these 

‘‘more recent judicial opinions,’’ Rep. Dingell cited the same nine court cases as the 

House did in its RHA report, including the Supreme Court decisions in Appalachian 

Power and Economy Light. Ibid. He drew a direct connection between the new CWA 

definition of ‘‘navigable waters’’ as ‘‘the waters of the United States,’’ and the outmoded view that frustrated Congress during its parallel RHA review: ‘‘No longer are 

the old, narrow definitions of navigability, as determined by the [C]orps. . . going 

to govern matters covered by this [conference] bill.’’ Id. at 251 (emphasis supplied). 

Moreover, in opining on the new, broader ‘‘navigable waters’’ definition in the 

CWA conference bill, Rep. Dingell recalled the identical concern that the House addressed in the RHA context—namely, that Federal authority over the Nation’s waters needed to cover wholly intraState bodies that are part of a highway of commerce (although they are not themselves connected to a continuous, water-based 

channel of navigation). Again, he used the same reasoning, wording, and case law 

from the Government Operations Committee RHA report on the Lake Chelan situation: 

Although most interState commerce 150 years ago was accomplished on waterways, there is no requirement in the Constitution that the waterways must cross 

a State boundary in order to be within the interState commerce power of the Federal Government. Rather, it is enough that the waterway serve as a link in the 

chain of commerce among the States as it flows in the various channels of transportation—highways, railroads, air traffic, radio and postal communication, waterways, 

et cetera. The ‘‘gist of the Federal test’’ is the waterway’s use ‘‘as a highway, not 

whether it is ‘‘part of a navigable interState or international commercial highway.’’ 

Utah v. United States, 403 U.S. 9, 11 (1971). . . . 

1 CWA Legislative History 250-51 (statement of Rep. Dingell) (emphasis supplied); compare to H.R. Rep. No. 92-1323, at 30 (discussed supra p. 6). 

The sentiments of Sen. Edmund Muskie (D-ME) echoed those of Rep. Dingell. He 

remarked that the conference bill’s new definition of ‘‘navigable waters’’ should be 

‘‘given the broadest possible interpretation unencumbered by agency determinations,’’ to keep with his intent that: 

[S]uch waters shall be considered to be navigable in fact when they form, in their 

ordinary condition by themselves or by uniting with other waters or other systems 

of transportation, such as highways or railroads, a continuing highway over which 

commerce is or may be carried on with other States or with foreign countries in the 

customary means of trade and travel in which commerce is conducted today. In such 

case the commerce on such waters would have a substantial economic effect on 

interState commerce. 

1 CWA Legislative History at 178 (statement of Sen. Muskie) (emphasis supplied). 

Accordingly, Rep. Dingell and Sen. Muskie certainly intended for the term ‘‘navigable waters’’ to mean something more than features presently navigable-in-fact. 

Appalachian Electric and similar cases allowed them to effectuate their intent. 

These decisions clarified that, consistent with Commerce Clause power, congressional authority over traditional navigable waters could extend to ‘‘reasons unrelated to navigation.’’ John F. Baughman, Balancing Commerce, Geography and HisVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
23 

11 S. 1870 would re-define ‘‘waters of the United States’’ to mean ‘‘all waters subject to the 

ebb and flow of the tide, the territorial seas, and all interState and intraState waters and their 

tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, 

sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all 

impoundments of the foregoing, to the fullest extent that these waters, or activities affecting 

these waters, are subject to the legislative power of Congress under the Constitution.’’ S. 1870, 

§ 4(3), lines 14-25 (emphasis supplied). 

2See, e.g., Michael C. Blumm and D. Bernhard Zaleha, Federal Wetlands Protection Under 

the Clean Water Act: Regulatory Ambivalence, Intergovernmental Tension, and a Call for ReContinued 

tory: Defining the Navigable Waters of the United States, 90 Mich. L. Rev. 1028, 

1040 (1992). Furthermore: 

The Court [in Appalachian Electric] dropped the requirement that the waterway 

be navigable in its natural state. Rather, as long as a waterway could be made navigable through reasonable improvements, it would qualify as navigable. It is not even 

necessary that the improvements be made, or even authorized, just possible. The 

[C]ourt also endorsed the concept of ‘indelible navigability,’ under which a waterway 

once found to be navigable in fact remains permanently navigable in law. . . . Finally, the Court examined the physical characteristics of the river itself to demonstrate its capacity to support navigation. Under the Appalachian Electric doctrine 

the definition of navigable waters is extremely broad. . . . 

Ibid (citations omitted and emphasis supplied). Accordingly, with the scope of traditional navigable waters now greatly enhanced, and with the Supreme Court’s endorsement that Congress’s authority over traditional navigable waters was plenary, 

regulation on a vastly expanded universe of waters could be justified by virtually 

any purpose, even if unrelated to navigation—such as environmental protection. 

This was what the CWA conferees had in mind when they wanted to give ‘‘the 

broadest possible constitutional interpretation’’ to the phrase ‘‘navigable waters.’’ S. 

Rep. No. 92-1236, at 144 (1972), reprinted in CWA Legislative History, at 327. They 

accordingly defined ‘‘navigable waters’’ to mean ‘‘the waters of the United States.’’ 

But by no means did they intend to cover all water ‘‘in’’ the United States, as S. 

1870, the ‘‘Clean Water Restoration Act of 2007,’’ would do.1 The expansion of jurisdiction that the 1972 Congress had in mind pertained to intraState features like 

Lake Chelan, which where not themselves part of a continuous highway of waterbased commerce but provided linkages to land-based channels like roads, railroads, 

and telegraph lines. Thus, when the 1972 CWA conferees stated their intent was 

to give ‘‘navigable waters’’ the ‘‘broadest possible constitutional interpretation 

unencumbered by agency determinations,’’ their context was the broadest possible 

authority over traditional navigable waters, insofar as they served as channels of 

interState commerce. 

This is a key aspect of the Supreme Court’s holding, almost 30 years later, in 

SWANCC. In grounding the intent of the 1972 legislature, the Court identified the 

CWA’s constitutional basis as Congress’s ‘‘commerce power over navigation,’’ 531 

U.S. at 165 n.2. The Court explained that, back in 1972, Congress intended to exercise ‘‘its traditional jurisdiction over waters that were or had been navigable in fact 

or which could reasonably be so made.’’ Id. at 172. Parsing through the CWA’s legislative history shows that the SWANCC Court was faithful to that original intent. 

To conclude, the 1972 CWA significantly expanded Federal jurisdiction over water 

features. But that expansion solely pertained to the scope of traditional navigable 

waters, to encompass non-navigable features that affected navigation, or isolated 

intraState features that provided a link in the chain of commerce. There is no indication in the 1972 CWA’s history that Congress intended to exponentially stretch 

Federal authority to the extremes contemplated in S. 1870. Congress’s focus in 1972 

was indeed to provide ‘‘the broadest possible constitutional interpretation’’ of traditional navigable waters, insofar as such bodies affect navigation or provide linkages 

to channels of interState commerce. However, there is simply no evidence that the 

CWA’s founders sought to subject isolated ponds, erosional drainages, upland 

ditches, or the like, to Federal control. 

II. Questions of CWA Jurisdiction Have Always Been Complicated. They Were 

Confusing in the Era Before SWANCC, and They Remain Confusing Today. 

Advocates of S. 1870 seek to obtain the clarity they perceive existed from the era 

before the 2001 Supreme Court decision in Solid Waste Agency of Northern Cook 

County v. United States Army Corps of Eng’rs (SWANCC), 531 U.S. 159 (2001). 

This myth must be dispelled. As the legal scholarship prior to SWANCC overwhelmingly shows, questions about the CWA’s scope were as hotly contested then as they 

are today.2 An analysis of the case law bears out the CWA jurisdictional controversy 

between 1985 and 2001. 

24 

form, 60 U. Colo. L. Rev. 695, 713 (1989) (‘‘[t]he issues of which waters and which activities 

are subject to [CWA] regulation have been at the heart of most of the controversy surrounding 

the program’’); Stephen M. Johnson, Federal Regulation of Isolated Wetlands, 23 Envtl. L. 1, 

42 (1993) (‘‘the dispute regarding the Federal Government’s jurisdiction to regulate isolated wetlands remains unresolved’’); J. Blanding Holman, After United States v. Lopez: Can the Clean 

Water Act and the Endangered Species Act Survive Attack? 15 Va. Envtl. L.J. 139, 195 (1995) 

(‘‘[t]he regulation of isolated wetlands under the CWA based on the migratory bird rule was on 

tenuous Commerce Clause grounds even before Lopez was decided in the spring of 1995); 

Deanne E. Parker, Will United States v. Lopez Substantially Affect Federal Constitutional Authority to Regulate Isolated Wetlands? 16 J. Energy Nat. Resources & Envtl. L. 453 (1996) 

(‘‘[o]ne of the most controversial assertions of Federal jurisdiction is the regulation of isolated 

wetlands under the umbrella of the Clean Water Act’’); Marni A. Gelb, Leslie Salt Co. v. United 

States: Have Migratory Birds Carried the Commerce Clause Across the Borders of Reason? 8 

Vill. Envtl. L. J. 291 (1997) (Ninth Circuit decision on migratory bird rule ‘‘exemplifies the controversy concerning the proper scope of the CWA’s jurisdiction’’); Vickie V. Sutton, Wetlands 

Protection—A Goal Without a Statute, 7 S.C. Envtl. L.J. 179, 204 (Fall 1998) (discussing ‘‘the 

need to find a genuine Constitutional grounding for the protection of wetlands, the Constitutional basis of wetlands regulation, and the conflicts with State property laws’’); Jonathan H. 

Adler, Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence 

and the Limits of Federal Wetlands Regulation, 29 Envtl. L. 1,4 (1999) (‘‘[t]he Federal wetlands 

regulations promulgated under section 404 of the Clean Water Act have been one of the more 

contentious areas of Federal environmental policy for the past several years, spawning substantial litigation and political controversy’’). 3 S. 1870 would essentially codify the (a)(iii) regulation. See supra n. 1 (nearly identical language of S. 1870’s definition of ‘‘waters of the United States’’ compared to (a)(iii) regulation). 

However, as will be discussed below, the U.S. Court of Appeals for the Fourth Circuit struck 

the (a)(iii) regulation as illegal because it presented serious constitutional questions as to its 

validity under the Commerce Clause. United States v. Wilson, 133 F.3d 251 (4th Cir. 1997). 

A. Pre-SWANCC Cases. 

United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), sowed the 

seeds for the pre-SWANCC confusion. The Court decided that wetlands which ‘‘actually abut[ted] on a navigable waterway’’ were ‘‘adjacent’’ within Corps regulations 

and properly subject to CWA authority. Id. at 135. The Court specifically left open 

the question of whether the CWA covered ‘‘wetlands that are not adjacent to bodies 

of open water.’’ Id. at 131, n. 8. Following Riverside Bayview, courts and stakeholders struggled with this unanswered question. Debate swirled around the statutory propriety and constitutional validity of the regulatory vehicles used by Federal 

agencies to extend their professed authority over isolated intraState waters—namely, the ‘‘other waters’’ regulation and the ‘‘migratory bird rule.’’ 

In defining ‘‘the waters of the United States,’’ Corps and EPA regulations cover: 

waters that are or could be used for navigation; tidal waters; interState waters; tributaries of jurisdictional waters; and wetlands adjacent to jurisdictional waters. 33 

C.F.R. § 328.3(a)(Corps); 40 C.F.R. § 230.3(s)(EPA). They also profess to cover: 

All other waters such as intraState lakes, rivers, streams (including intermittent 

streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, 

playa lakes, or natural ponds, the use, degradation or construction of which could 

affect interState commerce. . . . 

Id. § 328.3(a)(iii)(Corps); § 230.3(s)(iii)(EPA). This regulation remains on the agencies’ books today.3 Further, in the preamble to 1986 CWA regulations, the agencies 

defined ‘‘other waters’’ within (a)(iii) to include those waters: 

a. Which are or would be used as habitat by birds protected by migratory bird 

treaties; or 

b. Which are or would be used as habitat by other migratory birds which cross 

State lines. . . . 

51 Fed. Reg. 42,206, 41,217 (Nov. 13, 1986). Reading subsection (a)(iii) and the 

migratory bird rule conjunctively, the Corps and EPA deemed that a wetland (or 

‘‘other water’’) had a sufficient effect on commerce if it could possibly be used by 

migratory birds crossing State lines. Accordingly, the migratory bird rule was ‘‘a 

limiting rule with no limits.’’ J. Blanding Holman, After United States v. Lopez: Can 

the Clean Water Act and the Endangered Species Act Survive Attack? 15 Va. Envtl. 

L.J. 139, 197 (1995). CWA control was thereby extended to ‘‘other waters’’ that were 

susceptible to possible bird use—and what backyard puddle, schoolyard field, or 

farm lot pond isn’t subject to possible bird use? Indeed, under the Corps’s delineation guidelines, an area can be completely dry at the surface for 365 days per year, 

year in and year out, and still qualify as a jurisdictional wetland. See Environmental Laboratory, Dep’t of the Army, Technical Rep. Y-87-1, Corps of Engineers 

Wetland Delineation Manual 34-41 (Jan. 1987). Thus, before SWANCC, the migratory bird rule brought into Federal jurisdiction millions of shallow, damp low spots 

throughout the United States, because birds ‘‘could’’ use them. 

25 

The infinite scope that the ‘‘other waters’’ regulation and the migratory bird rule 

attempted to achieve predictably rendered them targets for court challenges 

throughout the 1990’s—belying any claims of jurisdictional clarity before SWANCC. 

When the Corps applied the bird rule to assert jurisdiction over certain wetlands 

in the Commonwealth of Virginia, the landowner argued the rule was invalid. The 

U.S. Court of Appeals for the Fourth Circuit agreed, upholding a district court decision that the bird rule was illegal under the Administrative Procedure Act because 

it was a substantive rule that was never subject to notice and comment rulemaking 

proceedings. Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726 (E.D. Va. 1988), 

aff’d, 885 F.2d 866 (4th Cir. 1989). In response to Tabb Lakes, the Corps and EPA 

issued guidance that they ‘‘intend to undertake as soon as possible an APA rulemaking process regarding jurisdiction over isolated waters.’’ See U.S. EPA and U.S. 

Dep’t of Army, ‘‘Clean Water Act Section 404 Jurisdiction Over Isolated Waters in 

Light of Tabb Lakes v. United States’’ (Jan. 24, 1990). Almost 18 years later, the 

agencies still have not initiated such a rulemaking. 

The Seventh Circuit seriously struggled with the bird rule in the decade before 

SWANCC. In Hoffman Homes, Inc. v. EPA, 961 F.2d 1310 (1992), a home builder 

filled a 0.8 acre isolated, intrastate, bowl-shaped depression, without a permit. EPA 

deemed the feature a jurisdictional wetland. The agency presented no evidence that 

migratory birds or any other wildlife used the area, but it nonetheless issued a compliance order and required site restoration. After a lengthy evidentiary hearing, an 

administrative law judge decided EPA had no CWA authority over the isolated wetland because it had no effect on interState commerce. But then EPA’s chief judicial 

officer reversed, imposing a $50,000 fine and deciding that the wetland had a ‘‘minimal, potential effect’’ on interState commerce because migratory birds could use the 

area. Id. at 1312. Following these contradictory administrative challenges—even 

EPA did not know how to treat isolated wetlands at this time—the courts became 

involved. The Seventh Circuit found ‘‘the Clean Water Act does not give the EPA 

the authority to regulate isolated wetlands. Isolated wetlands, unlike adjacent wetlands, have no hydrological connection to any waterbody.’’ Id. at 1314. Moreover, the 

Seventh Circuit further decided that the isolated wetland was ‘‘not within the reach 

of the Commerce Clause,’’ and this was a ‘‘second reason’’ to reverse EPA. Id. at 

1317. Because ‘‘EPA ha[d] not even attempted to construct a theory of how filling 

[the wetland] affects interState commerce,’’ application of the bird rule in this instance could not be sustained under the Commerce Clause: ‘‘The idea that the potential presence of migrating birds itself affects commerce is. . . far-fetched.’’ Id. 

at 1320. 

EPA then petitioned for rehearing, and the Seventh Circuit vacated its prior decision with no explanation and a directive for the parties to explore settlement to 

moot the need for a court decision. Hoffman Homes, Inc. v. EPA, 975 F.2d 1554. 

Those discussions failed, and the case went back to the original panel for a new decision. This time, the Seventh Circuit flip-flopped on its policy decision but maintained its judgment against EPA. The court now decided that the migratory bird 

rule was consistent with the CWA and within Commerce Clause limits. Hoffman 

Homes, Inc. v. EPA, 999 F.2d 256, 261 (7th Cir. 1993). Thus, the same Seventh Circuit panel reached contradictory opinions on the migratory bird rule and its constitutional implications—in the same case and on the same set of facts—in under 

18 months. 

A Ninth Circuit case from the same period wended a similarly tortured path 

through the judicial system. In Leslie Salt Co. v. United States, 700 F. Supp. 476 

(N.D. Cal. 1989), the Corps mobilized the bird rule to assert CWA authority over 

calcium chloride pits at a salt mining site, which collected rainwater that migrating 

birds could possibly use. The district court stated its role was ‘‘not to sit as a superecologist’’ (id. at 478), and it decided that the pits did not fall within the (a)(iii) regulation: ‘‘the mere ponding of water on otherwise dry land is not enough to convert 

that land into ‘other waters.’ ’’ Id. at 485. On appeal, a 2–1 Ninth Circuit panel reversed, 896 F.2d 354, 360 (9th Cir. 1990). The court rendered the ‘‘legal conclusion’’ 

that the Commerce Clause could be satisfied upon a showing that migratory birds 

and one endangered species ‘‘may have used the property.’’ Id. at 360-61. A dissent, 

however, decided that the pits were not ‘‘other waters’’ because ‘‘there is nothing in 

the record to show that water flows directly or indirectly. . . [from the pits] into 

another body of water.’’ Id. at 361 (Rymer, J., dissenting). There was a remand back 

to the trial court (820 F. Supp. 478 (N.D. Cal. 1992), followed by another appeal, 

where the Ninth Circuit decided its prior decision ‘‘cannot be considered clearly erroneous’’—hardly a ringing judicial endorsement that the Commerce Clause permitted 

regulation of any wet spot due to potential bird use. 55 F.3d 1388, 1396 (9th Cir. 

1995). The Ninth Circuit admitted that the migratory bird rule ‘‘certainly tests the 

limits of Congress’s commerce powers and, some would argue, the bounds of reason.’’ 

26 

Id. But, ‘‘while Cargill’s arguments might well deserve closer consideration,’’ the 

court had enough of the issue and refused to re-consider its prior decision. Id. Moreover, the Ninth Circuit dodged the conclusion reached by the Fourth Circuit in Tabb 

Lakes, as to whether the bird rule required public notice and comment proceedings. 

The court stated if that issue was submitted earlier in the proceedings, ‘‘a much 

more detailed examination of the migratory bird rule’s effect on agency decisionmaking might be in order.’’ Id. at 1394. 

A request was then put to the Supreme Court to address the validity of the bird 

rule, but certiorari was denied. Cargill, Inc. v. United States, 516 U.S. 955 (2005). 

However, Justice Thomas issued a rare dissent from the denial of certiorari. In light 

of the Court’s decision in United States v. Lopez, 514 U.S. 549 (1995) from the immediately prior term, he expressed ‘‘serious doubts about the propriety of the Corps’ 

assertion of jurisdiction’’ based on migratory bird use. Cargill, 516 U.S. at 958 

(Thomas, J. dissenting from cert. denial). Justice Thomas further questioned the validity of the (a)(iii) regulation, because ‘‘[t]he ‘other waters’ provision. . . does not 

require an activity substantially affect interState commerce, only that the activity 

‘could affect interState or foreign commerce.’ ’’ Id. (original emphasis). All of this 

‘‘stretches Congress’ Commerce Clause powers beyond the breaking point.’’ Id. 

It would take another 6 years before the high Court considered the merits of the 

migratory bird rule in SWANCC. In the interim, the Fourth Circuit widened the judicial divide on CWA authority. United States v. Wilson, 133 F.3d 251 (4th Cir. 

1997), struck the Corps’s (a)(iii) regulation as illegal because it brushed against the 

Constitution’s outer limits. The court found the ‘‘other waters’’ regulation ‘‘is unauthorized by the Clean Water Act as limited by the Commerce Clause and therefore 

is invalid.’’ Id. at 254: 

The [(a)(iii)] regulation requires neither that the regulated activity have a substantial effect on interState commerce, nor that the covered waters have any sort 

of nexus with navigable, or even interstate, waters. Were this regulation a statute, 

duly enacted by Congress, it would present serious constitutional difficulties, because, at least at first blush, it would appear to exceed congressional authority 

under the Commerce Clause. . . . [A]s a matter of statutory construction, one 

would expect that the phrase ‘‘waters of the United States’’ when used to define the 

phrase ‘‘navigable waters’’ refers to waters which, if not navigable in fact, are at 

least interState or closely related to navigable or interState waters. 

Id. at 257 (underscoring original; italics supplied). The Fourth Circuit further 

found that a jury instruction ‘‘intolerably stretche[d]’’ CWA jurisdiction because it 

‘‘included adjacent wetlands ‘even without a direct or indirect surface connection to 

other waters of the United States.’ ’’ Id. at 258 (original emphasis). Following the 

Wilson decision, the Corps and EPA issued a memorandum stating that they intended to initiate a rulemaking on the (a)(iii) regulation. See U.S. EPA and U.S. 

Dept. of Army, ‘‘Guidance for Corps and EPA Field Offices Regarding Clean Water 

Act Section 404 Jurisdiction Over Isolated Waters in Light of United States v. 

James J. Wilson’’ (May 29, 1998). Almost a decade later, the agencies have not commenced a rulemaking on the validity of the (a)(iii) regulation or their CWA authority to regulate isolated waters. 

Thus, the era of CWA jurisprudence leading up to SWANCC was most decidedly 

not clear. Then, as now, the courts struggled with questions regarding connections 

to interState waters, and there was no consensus on the required nexus between 

wetlands and traditional navigable waters. These very same issues are with us 

today, as stakeholders continue to consider the extent of CWA jurisdiction following 

SWANCC. As a congressional research report explains, ‘‘[f]ederal regulation of isolated waters—nonnavigable, intraState waters lacking surface hydrological connections to navigable waters—plainly raises the issue of whether an adequate nexus 

with interState commerce is present.’’ Robert Meltz, congressional Research Service, 

‘‘Report for Congress—Constitutional Bounds on Congress’ Ability to Protect the Environment,’’ at 9 (RL 30670; updated Dec. 18, 2002), at 9. The argument that S. 

1870 would afford clarity to CWA jurisdiction, the likes which have not been seen 

since SWANCC, is not convincing. S. 1870 would simply bring us back to the 

present. 

B. Solid Waste Agency of Northern Cook County 

In 2001, the Supreme Court decided SWANCC, 531 U.S. 159 (2001). The case concerned whether CWA section 404(a) conferred Corps authority over isolated, seasonal ponds at an abandoned sand and gravel pit in suburban Chicago, because they 

were susceptible to migratory bird use. In briefing at the certiorari stage, the petitioners asked the Court to intervene to address the judicial confusion created by 

Tabb Lakes, Hoffman Homes, Leslie Salt and Wilson, as discussed above. The 

SWANCC Court itself recognized that it now had the opportunity to answer the unresolved and disputed question from Riverside Bayview, as to whether the CWA covVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
27 

ered ‘‘’wetlands that are not adjacent to bodes of open water. . . .’’ Id. at 167-68 

(citing Riverside Bayview, 474 U.S. at 131-132 n. 8). 

The Court answered, ‘‘no.’’ It identified the constitutional authority for the CWA 

as the ‘‘commerce power over navigation,’’ 531 U.S. at 165 n.2, and explained that 

Congress intended to exercise ‘‘its traditional jurisdiction over waters that were or 

had been navigable in fact or which could reasonably be so made.’’ Id. at 172. 

Former Chief Justice Rehnquist, writing for the majority, observed that the holding 

in Riverside Bayview ‘‘was based in large measure on Congress’ unequivocal acquiescence to, and approval of, the Corps’ regulations interpreting the CWA to cover 

wetlands adjacent to navigable waters.’’ SWANCC, 531 U.S. at 167. The majority 

thus rejected the Corps’s assertion of jurisdiction because ‘‘the text of the statute 

will not allow’’ coverage of ponds that ‘‘are not adjacent to open water.’’ 531 U.S. 

at 168 (original emphasis). The Court found ‘‘§ 404(a) to be clear’’ that non-navigable isolated ponds fell outside the CWA’s scope. Id. at 172. Otherwise, the word 

‘‘navigable’’ in the CWA would ‘‘’not have any independent significance’ ’’ and ‘‘no effect whatever.’’ Id. The majority reinforced the need for an ‘‘inseparable’’ relationship between non-navigable and navigable features: ‘‘It was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA 

in Riverside Bayview Homes.’’ Id. at 167 (emphasis added). Accordingly, finding no 

inseparable relationship between the non-navigable, isolated ponds at issue in 

SWANCC and a body of ‘‘open water,’’ the Court held that the Corps’s claim of jurisdiction ‘‘exceeds the authority granted to [the Corps] under section 404(a) of the 

CWA.’’ Id. at 174. In the end, the Corps was unable to ‘‘overcome[e] the plain text 

and import’’ of the CWA, so its assertion of jurisdiction over isolated ponds received 

no deference. Id. at 170. 

SWANCC also raised the constitutional question regarding the bird rule’s validity 

under the Commerce Clause, but the Court avoided it by invoking the ‘‘clear statement’’ rule. ‘‘This requirement stems from our prudential desire not to needlessly 

reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority.’’ Id. at 172–73. Where an agency interprets a statute in a manner 

that ‘‘invokes the outer limits of Congress’s power’’ or ‘‘overrides. . . [the] usual 

constitutional balance of Federal and State powers,’’ the Supreme Court ‘‘expect[s] 

a clear indication that Congress intended that result.’’ Id. The majority found that 

the migratory bird rule was just such an interpretation that pressed against the 

outer boundaries of the Commerce Clause which, ‘‘though broad, is not unlimited.’’ 

Id. at 173 (citing United States v. Morrison, 529 U.S. 598 (2000); United States v. 

Lopez, 514 U.S. 549 (1995)). SWANCC found ‘‘nothing approaching a clear statement from Congress that it intended § 404(a) to reach an abandoned sand and gravel pit. . . .’’ Id at 174. Furthermore, the clear statement requirement is ‘‘heightened’’ where an agency interprets a statute in a manner that would ‘‘alter[ ] the 

Federal-State framework by permitting Federal encroachment upon a traditional 

State power.’’ Id. at 173. The regulation of land and water use within a state’s borders is a traditional State function, and the Court found that claims of ‘‘Federal jurisdiction over ponds and mudflats falling within the ‘Migratory Bird Rule would result in a significant impingement’’ of State prerogatives. Id. at 174 (citing Hess v. 

Port Authority Trans-Hudson Corporation, 513 U.S. 30, 44 (1994)). In the end, the 

Court held that the (a)(iii) regulation, ‘‘as clarified and applied to petitioner’s balefill 

site pursuant to the ‘Migratory Bird Rule’. . . exceeds the authority granted to respondents under § 404(a) of the CWA.’’ Id. at 174. 

Like any case, SWANCC did not resolve all of the pertinent statutory and constitutional questions implicated in the matter. And there has been some disagreement over the breadth of the Court’s holding. Those advocating a narrow view State 

that the majority merely invalidated the bird rule and nothing more. However, 

much of the language in the Court’s opinion goes beyond the bird rule, and instructs 

that all isolated, intraState waters are outside the CWA’s scope. Indeed, the 

SWANCC dissenters adopted this broader view, reading the majority opinion as ‘‘excising’’ from the CWA ‘‘intermittent rivers, streams, tributaries and perched wetlands that are not contiguous or adjacent to navigable waters.’’ Id. at 189, 190 n.14 

(Stevens, J., dissenting). ‘‘[D]epending on which part of the opinion one looks at,’’ 

SWANCC held ‘‘either that Congress never intended section 404 to extend to isolated waters at all, or that Congress never intended section 404 to extend to isolated 

waters solely on the basis of the migratory bird rule.’’ Robert Meltz, congressional 

Research Service, ‘‘Report for Congress—Constitutional Bounds on Congress’ Ability 

to Protect the Environment,’’ at 9 (RL 30670; updated Dec. 18, 2002), at 10. 

In any event, SWANCC afforded much needed clarity to the confusing and contradictory case law that preceded it. At a minimum, the migratory bird rule—the 

jurisdictional modus operandi of the Corps and EPA throughout the 1990’s—was deVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
28 

clared illegal. The agencies could no longer base their jurisdictional determinations 

on it, and were forced to develop other theories that provide Federal jurisdiction 

over a body of water. 

III. THE 2006 RAPANOS DECISION HAS HELPED CLARIFY

THE CWA’S SCOPE. 

To summarize thus far, as the CWA entered its third decade, two Supreme Court 

decisions provided directives on the Act’s scope. First, Riverside Bayview in 1985 

ruled that wetlands, though non-navigable themselves, were subject to Corps and 

EPA jurisdiction if they actually abutted a traditional navigable waterway. In these 

circumstances, they were ‘‘adjacent’’ and appropriately within Federal power. Second, SWANCC in 2001 decided an open question from Riverside Bayview, ruling 

that isolated, intraState waters fall outside the Act. 

Thus, on one end of the jurisdictional spectrum, abutting wetlands are ‘‘in.’’ On 

the other end of the spectrum, isolated, intraState features are ‘‘out.’’ This was the 

jurisprudential landscape after 2001. But after the migratory bird rule was declared 

illegal, the Federal agencies needed a new rule for jurisdiction. Through litigation 

briefing and not from any deliberative rulemaking or policy process, they developed 

‘‘the hydrologic connection theory.’’ Like the bird rule before it, the hydrologic connection theory spawned much confusion and controversy in the courts. 

A. Pre-Rapanos Cases. 

Under the hydrologic connection theory, the Corps and EPA asserted CWA authority over non-navigable features simply if they had a possible aquatic link to jurisdictional waters. Cases abounded with similar fact patterns: wetlands lied next 

to an upland ditch, and water in that ditch flowed through a series of more nonnavigable ditches, canals, and creeks, which ultimately connected to truly navigable 

waters miles away. The distant wetland would be deemed jurisdictional in either 

of two ways. First, the agencies would boldly claim that because of the hydrologic 

connection, the wetland was adjacent to the truly navigable water, no matter the 

distance between them. In the alternative, the agencies would assert that the nonnavigable drainage ditch was a tributary to the truly navigable water, and that the 

wetland was therefore adjacent to a tributary. In either case, the agencies declared 

that every inch along the watercourse was subject to CWA coverage, as they traced 

drops of water from one point to the next. 

United States v. Deaton, 332 F.3d 698 (4th Cir. 2003), cert. denied, 541 U.S. 972 

(2004), exemplified the Corps’s use of the hydrologic connection theory. The agency 

brought a civil action against the Deatons because they discharged fill without a 

section 404 permit, by digging a drainage ditch through wetlands on their property. 

That ditch drained into a rural roadside ditch fronting their parcel. The Corps 

claimed that the roadside ditch was a ‘‘tributary’’ to the navigable-in-fact Wicomico 

River, which lied eight miles away over a course punctuated by five culverts, three 

ponds, and five dams. They deemed the wetlands ‘‘adjacent’’ to the ditch ‘‘tributary’’ 

and were thus jurisdictional. Id. at 702–03. Nothing in the record showed that a single grain of sediment left the site and entered the roadside ditch, much less flowed 

downstream to reach a truly navigable water. 

The Fourth Circuit upheld the Corps’s jurisdiction. Ignoring the ‘‘clear statement’’ 

rule (see supra p. 17), the court leapfrogged to the constitutional issue first. 

Downplaying the specific roadside ditch at issue, the court asked whether, categorically, non-navigable tributaries to navigable waters could be regulated under the 

Commerce Clause. Id. at 707–08. It reasoned that any pollutant in a non-navigable 

tributary has the ‘‘potential to move downstream’’ and degrade navigable waters 

and, thus, the Corps’s regulation of tributaries was constitutional. Id. at 709. Then 

the Fourth Circuit turned to the statutory question. It deferred to the agency’s interpretation under the CWA that the roadside ditch was part of a ‘‘tributary system, 

that is, all of the streams whose water eventually flows into navigable waters.’’ Id. 

at 710 (emphasis added). Because there was ‘‘a’’ remote nexus between the roadside 

ditch and the Wicomico River, the Fourth Circuit concluded that ‘‘[t]he Act thus 

reaches to the roadside ditch and its adjacent wetlands.’’ Id. at 712. 

The Fifth Circuit pointedly disagreed with Deaton. In In re Needham, 354 F.3d 

340 (5th Cir. 2003), oil was pumped from a containment basin and spilled into a 

drainage ditch. The ditch flowed into Bayou Cutoff, which led to Bayou Folse, which 

was adjacent to Company Canal, ‘‘an open body of navigable water.’’ Id. at 346. Because oil residue was found 10–12 miles away in Bayou Folse, which flowed ‘‘directly into’’ the navigable-in-fact Company Canal, the court found the spill ‘‘implicated navigable waters and triggered Federal regulatory jurisdiction. . . .’’ Id. at 

347. It stressed there was a ‘‘significant nexus’’ between Bayou Folse and Company 

Canal. Id. However, the Fifth Circuit considered and rejected the government’s arVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
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gument that statutory ‘‘navigable waters’’ means ‘‘all waters . . . that have any 

hydrological connection with ‘navigable water.’ ’’ Needham, 354 F.3d at 345. The 

Needham court recognized that Deaton accepted ‘‘this expansive interpretation’’ 

(id.), but declared that theory ‘‘unsustainable under SWANCC’’ because ‘‘[t]he CWA 

and the [Oil Pollution Act] are not so broad as to permit the Federal Government 

to impose regulations over ‘tributaries’ that are neither themselves navigable nor 

truly adjacent to navigable waters.’’ Id. The court likewise held that ‘‘the term ‘adjacent’ cannot include every possible source of water that eventually flows into a navigable-in-fact waterway.’’ Id. at 347. And it refused to defer to the hydrologic connection theory, because the position advanced by the government pushed ‘‘to the outer 

limits of the Commerce Clause and raise[s] serious constitutional questions. . . .’’ 

Id. at 345 n. 8. 

Just as birds might stop anywhere, all water must flow somewhere. Thus, the hydrologic connection theory proved just as limitless, and therefore controversial, as 

the migratory bird rule; both jurisdictional tests presupposed Federal power based 

on potential connections to traditional navigable waters and interState commerce. 

It is thus unsurprising that judicial debate was re-ignited during the ‘‘hydrologic 

connection’’ years. The stage was set for the Supreme Court to re-engage in Rapanos 

v. United States, 126 S.Ct 2208 (2006). Indeed, as shown below, what SWANCC was 

for the migratory bird rule, Rapanos became for the hydrologic connection theory. 

B. Rapanos and its Areas of Consensus. 

Rapanos concerned two consolidated cases: Rapanos v. United States, 376 F.3d 

704 (6th Cir. 2004), and Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d 704 (6th 

Cir. 2004). They both followed the same, familiar fact-pattern: wetlands miles away 

from traditional navigable waters, that drained through multiple ditches, culverts, 

and creeks, which eventually flowed to traditional navigable waters. In both matters, the Sixth Circuit upheld Corps determinations that wetlands, connected 

through an attenuated aquatic chain to navigable-in-fact bodies, were jurisdictional. 

The Court issued a 4-1-4 plurality opinion. Five of the Rapanos Justices concurred 

in the judgment that the Corps’s assertion of jurisdiction under the hydrologic connection theory was impermissible, and they vacated the Sixth Circuits’ decision affirming the agency’s actions. See Rapanos, 126 S.Ct. at 2235 (Scalia, J., plurality); 

id. at 252 (Kennedy, J., concurrence). However, the Justices could not form a majority as to the proper test for CWA jurisdiction. Justice Scalia, writing for a plurality 

that included himself, Chief Justice Roberts, and Justices Thomas and Alito, decided 

that CWA coverage extended to ‘‘only those relatively permanent, standing, or continuously flowing bodies of water ‘forming geographic features’ that are described 

in ordinary parlance as ‘stream[s,]. . . oceans, rivers, [and] lakes.’’ Id. at 2225. The 

plurality also developed a jurisdictional rule for wetlands in particular: ‘‘[O]nly those 

wetlands with a continuous surface connection to bodies that are ‘waters of the 

United States’ in their own right, so that there is no clear demarcation between ‘waters’ and ‘wetlands,’ are ‘adjacent to’ such waters and covered by the Act.’’ Id. at 

2226 (original emphasis). 

Justice Kennedy, who concurred in the judgment, wrote separately for himself. He 

elevated the concept of ‘‘significant nexus,’’ first used by the Court in SWANCC to 

describe the nature of the aquatic features in Riverside Bayview, to the appropriate 

test for jurisdiction: ‘‘[W]etlands possess the requisite nexus, and thus come within 

the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, 

physical, and biological integrity of other covered waters more readily understood 

as ‘navigable.’ ’’ Rapanos, 126 S.Ct. at 2248 (Kennedy, J., concurring; emphasis supplied). ‘‘Consistent with SWANCC and Riverside Bayview and with the need to give 

the term ‘navigable’ some meaning, the Corps’ jurisdiction over wetlands depends 

on a significant nexus between the wetlands in question and navigable waters in 

the traditional sense.’’ Id. at 2249 (emphasis supplied.) Justice Stevens, writing in 

a dissent joined by Justices Breyer, Souter, and Ginsburg, would have accepted the 

hydrologic connection theory, upheld the Corps’s exercise of jurisdiction, and affirmed the Sixth Circuit’s decisions. Id. at 2252 (Stevens, J., dissenting). 

Some have maligned Rapanos because the Justices failed to reach a majority opinion that announced the ‘‘correct’’ test for CWA jurisdiction, talismanic and overarching for all cases. Such criticism is unjustified. The Supreme Court has never 

announced a definitive test for CWA jurisdiction; in Riverside Bayview we learned 

that ‘‘actually abutting’’ wetlands are covered, and in SWANCC we learned that isolated, intraState waters are not. But while neither opinion articulated an uber-test 

for CWA jurisdiction, this does not diminish the important guidance they provided 

in ascertaining the Act’s scope. The same holds true for Rapanos. 

Moreover, advocates for legislation like S. 1870 have urged that the appropriate 

response to Rapanos is simply to cast the broadest possible regulatory net and codVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
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4 Justice Scalia: ‘‘Riverside Bayview. . . explicitly rejected. . . case-by-case determinations 

of ecological significance for the jurisdictional question whether a wetland is covered, holding 

instead that all physically connected wetlands are covered.’’ Rapanos v. United States, 126 S.Ct. 

2208, 2233 (original emphasis). ‘‘Since the wetlands at issue in Riverside Bayview actually abutted waters of the United States, the case could not possibly have held that ‘neighboring’ wetlands came within the Corps’ jurisdiction.’’ Id. at 2226 n.10. Justice Kennedy: ‘‘When the Corps 

seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction. Absent more specific regulations, however, the Corps must establish a 

significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency 

to nonnavigable tributaries.’’ Id. at 2249 (emphasis supplied). 5 Justice Scalia: ‘‘Isolated ponds were not ‘waters of the United States’ in their own right [in 

SWANCC,] and presented no boundary-drawing problem that would have justified the invocation of ecological factors to treat them as such.’’ Id. at 2226. Because SWANCC excluded isolated 

ponds from CWA jurisdiction ‘‘which, after all, might at least be described as ‘waters’ in their 

own right,’’ then ‘‘a fortiori, isolated, swampy lands do not constitute ‘waters of the United 

States.’ ’’ Id. at 2230 (original emphasis). Justice Kennedy: In SWANCC, the Corps ‘‘assert[ed] 

jurisdiction pursuant to a regulation called the ‘Migratory Bird Rule’. . . . The Court rejected 

this theory.’’ Id. at 224-41. 6 Justice Scalia: Rejecting the Agencies’ hydrologic connection theory in holding that the 

phrase ‘‘the waters of the United States’’ ‘‘cannot bear the expansive meaning that the Corps 

would give it.’’ Id. at 2220. ‘‘[R]elatively continuous flow is a necessary condition for qualification 

as a ‘water,’ not an adequate condition.’’ Id. at 2223 n.7. Justice Kennedy: ‘‘The Corps’ theory 

of jurisdiction in these consolidated cases—adjacency to tributaries however remote and insubstantial—raises concerns that go beyond the holding of Riverside Bayview, and so the Corps’ 

assertion of jurisdiction cannot rest on that case.’’ Id. at 2250. ‘‘[M]ere hydrologic connection 

should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage 

to establish the required nexus with navigable waters as traditionally understood.’’ Id. at 2251. 

ify Federal power over all intraState waters. That response would be needlessly extreme. It ignores that the five concurring Justices reached important consensus on 

many issues. They re-confirmed Riverside Bayview, that jurisdiction categorically 

extends to adjacent wetlands that actually abut navigable-in-fact waters.4 They also 

re-confirmed SWANCC, that CWA jurisdiction cannot cover isolated aquatic features, at least to the extent where migratory bird use is offered to provide the requisite connection to interState commerce.5

The most significant clarification that Rapanos provided was that the five Justices 

agreed CWA jurisdiction does not reach non-navigable features merely because they 

are hydrologically connected to downstream navigable-in-fact water.6 In short, the 

hydrologic connection theory was disapproved—just as the migratory bird rule was 

disapproved in SWANCC. 

But there are other key areas of consensus as well. Review of Rapanos shows that 

five Justices would reach agreement on the following salient points: 

1. Agency rulemaking is needed to clarify the CWA’s jurisdictional scope. Even 

dissenting Justice Breyer wrote separately to emphasize this point. 

• Chief Justice Roberts: The Agencies would be ‘‘afforded generous leeway’’ if 

they conducted a rulemaking interpreting statutory ‘‘navigable waters.’’ Id. at 2235. 

‘‘[T]he Corps and EPA would have enjoyed plenty of room to operate in developing 

some notion of an outer bound to the reach of their authority.’’ Id. at 2236 (original 

emphasis). 

• Justice Breyer: The various Rapanos opinions, ‘‘taken together, call for the 

Army Corps of Engineers to write new regulations, and speedily so.’’ Id. at 2266. 

• Justice Kennedy: ‘‘Through regulations or adjudication, the Corps may choose 

to identify categories of tributaries that, due to their volume of flow (either annually 

or on average), their proximity to navigable waters, or other relevant considerations, 

are significant enough that wetlands adjacent to them are likely, in the majority of 

cases, to perform important functions for an aquatic ecosystem incorporating navigable waters.’’ Id. at 2249. 

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

Rapanos and Carabell. 

• Justice Scalia: ‘‘We vacate the judgments of the Sixth Circuit in both No. 04- 

1034 [Rapanos] and No. 04–1384 [Carabell], and remand both cases for further proceedings.’’ Id. at 2235. 

• Justice Kennedy: ‘‘In these consolidated cases I would vacate the judgments of 

the Court of Appeals and remand for consideration whether the specific wetlands 

at issue possess a significant nexus with navigable waters.’’ Id. at 2252. 

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

• Justice Scalia: ‘‘The Act’s term ‘navigable waters’ includes something more 

than traditional navigable waters. . . .’’ 126 S. Ct. at 2220. The Scalia plurality ‘‘afVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
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7 For a wetland to be jurisdictional under the Scalia approach, the ‘‘continuous surface connection’’ he contemplated is not satisfied upon a mere running trickle to a body of water navigable 

in its own right; indeed, Scalia rejected the Corps’s use of the ‘‘mere hydrologic connection’’ test. 

Rather, he makes clear that a ‘‘continuous connection’’ is one that implicates the difficult boundary-drawing question between land and water, of the sort that the Court addressed in Riverside 

Bayview. In this regard, the discussion of Scalia’s methodology in United States v. Cundiff, 480 

F.Supp.2d 940, 946-47 (W.D. Ky. 2007) is instructive: 

firmatively reject[ed]’’ an interpretation that the CWA ‘‘includes only navigable-infact waters.’’ Id. at 2231. • Justice Kennedy: ‘‘Congress’ choice of words creates difficulties, for the Act contemplates regulation of certain ‘navigable waters’’ that are not in fact navigable.’’ 

Id. at 2247. 

4. The word ‘‘navigable,’’ in the phrase ‘‘navigable waters,’’ has meaning. 

• Justice Scalia: ‘‘[T]he traditional term ‘navigable waters’. . . carries some of 

its original substance. . . .’’ Id. at 2222 (original emphasis). • Justice Kennedy: ‘‘[T]he dissent reads a central requirement out [of the 

CWA]—namely, the requirement that the word ‘navigable’ in ‘navigable waters’ be 

given some importance.’’ Id. at 2247. ‘‘Consistent with SWANCC and Riverside 

Bayview and with the need to give the term ‘navigable’ some meaning, the Corps’ 

jurisdiction over wetlands depends on a significant nexus between the wetlands in 

question and navigable waters in the traditional sense.’’ Id. at 2249. 

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

• Justice Scalia: Rejecting the Agencies’ hydrologic connection theory in holding 

that the phrase ‘‘the waters of the United States’’ ‘‘cannot bear the expansive meaning that the Corps would give it.’’ Id. at 2220. ‘‘[R]elatively continuous flow is a necessary condition for qualification as a ‘water,’ not an adequate condition.’’ Id. at 

2223 n.7. • Justice Kennedy: Criticizing the dissent because it ‘‘would permit Federal regulation whenever wetlands lie alongside a ditch or drain, however remote or insubstantial, that may flow into traditional navigable waters.’’ Id. at 2247. ‘‘The Corps’ 

theory of jurisdiction in these consolidated cases—adjacency to tributaries however 

remote and insubstantial—raises concerns that go beyond the holding of Riverside 

Bayview [which extended the CWA to encompass wetlands that actually abut traditionally navigable waters], and so the Corps’ assertion of jurisdiction cannot rest on 

that case.’’ Id. at 2250. ‘‘[M]ere hydrologic connection should not suffice in all cases; 

the connection may be too insubstantial for the hydrologic linkage to establish the 

required nexus with navigable waters as traditionally understood.’’ Id. at 2251. 

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

CWA jurisdiction. 

• Justice Scalia: ‘‘[T]he phrase ‘the waters of the United States’ includes only 

those relatively permanent, standing, or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘stream[s,]. . .

oceans, rivers, [and] lakes.’’ Id. at 2225 (emphasis supplied). ‘‘[O]nly those wetlands 

with a continuous surface connection to bodies that are ‘waters of the United States’ 

in their own right, so that there is no clear demarcation between ‘waters’ and ‘wetlands,’ are ‘adjacent to’ such waters and covered by the Act.’’ Id. at 2226 (original 

emphasis).7

In discussing the boundary drawing problem, the Rapanos plurality noted that in 

Riverside Bayview the Supreme Court had acknowledged that there was an inherent ambiguity in drawing the boundaries of any ‘‘waters’’: ‘‘[T]he Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid 

ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs-in short, a 

huge array of areas that are not wholly aquatic but nevertheless fall far short of 

being dry land. Where on this continuum to find the limit of ‘waters’ is far from 

obvious.’’ Rapanos, 126 S.Ct. at 2225 (quoting Riverside Bayview, 474 U.S. at 132, 

106 S.Ct. 455.) According to the Rapanos plurality, because of this inherent ambiguity, the Supreme Court in Riverside Bayview ‘‘held, the agency could reasonably 

conclude that a wetland that ‘adjoin[ed]’ waters of the United States is itself a part 

of those waters.’’ Id. (citing Riverside Bayview, 474 U.S. at 132, 135, & n. 9, 106 

S.Ct. 455). • Justice Kennedy: ‘‘[T]he dissent would permit Federal regulation whenever 

wetlands lie alongside a ditch or a drain, however remote or insubstantial, that may 

eventually flow into traditionally navigable waters. The deference owed to the 

Corps’ interpretation of the statute does not extend so far.’’ Id. at 2247. ‘‘The Corps’ 

32 

8 These statements of the Scalia plurality were emphasized by the Ninth Circuit in United 

States v. Moses, 2007 WL 2215954 (9th Cir. Aug. 3, 2007), at 6, to find that a creek that ‘‘rises 

and becomes a rampaging torrent’’ during times of runoff is covered by the CWA. 

theory of jurisdiction—adjacency to tributaries, however remote and insubstantial— 

raises concerns that go beyond the holding of Riverside Bayview; and so the Corps’ 

assertion of jurisdiction cannot rest on that case.’’ Id. at 2248 (emphasis supplied). 

‘‘When. . . wetlands’ effects on water quality are speculative or insubstantial, they 

fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’ ’’ 

Id. at 2248 (emphasis supplied). In remanding Carabell back to the Sixth Circuit, 

Justice Kennedy stated that ‘‘[t]he conditional language in [the Corps’s] assessments—‘potential ability, ‘possible flooding’—could suggest an undue amount of 

speculation and a reviewing court must identify substantial evidence supporting the 

Corps’ claims. . . .’’ Id. at 2251 (Kennedy, J.). In Carabell, ‘‘the Corps based its jurisdiction solely on the wetlands’ adjacency to the ditch opposite the berm on the 

property’s edge. . . . [M]ere adjacency to a tributary of this sort is insufficient; a 

similar ditch could just as well be located many miles away from any navigable-infact water and carry only insubstantial flow toward it.’’ Id. at 2252 (emphasis supplied). 

7. Mere presence of an ordinary high water mark does not render a feature a jurisdictional ‘‘tributary,’’ or the wetlands next to such a feature jurisdictional ‘‘adjacent wetlands.’’ 

• Justice Kennedy: ‘‘[T]he Corps deems a water a tributary if it feeds into a traditional navigable water (or tributary thereof) and possesses an ordinary high-water 

mark. . . . This standard presumably provides a rough measure of the volume and 

regularity of flow. [T]he breadth of this standard—which seems to leave wide room 

for regulation of drains, ditches, and streams remote from any navigable-in-fact 

water and carrying only minor water-volumes toward it—precludes its adoption as 

the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as 

traditionally understood. Indeed, in many cases wetlands adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters 

than were the isolated ponds held to fall beyond the Act’s scope in SWANCC.’’ Id. 

at 2248-2249. 

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

• Justice Scalia: ‘‘By describing ‘waters’ as ‘relatively permanent,’ we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought.’’ Id. at 2221 n.5. 

9. CWA jurisdiction is not lost simply because a waterbody is regularly wet during 

certain seasons and dry during others. 

• Justice Scalia: Recognizing that the Los Angeles River would be jurisdictional 

under the CWA, and stating: ‘‘We. . . do not necessarily exclude seasonal rivers, 

which contain continuous flow during some months of the year but no fly during 

dry months—such as the 290-day continuously flowing stream postulated by Justice 

STEVENS’ dissent. . . .’’ Id. at 2221, n.5. ‘‘[N]o one contends that Federal jurisdiction appears and evaporates along with water in such regularly dry channels.’’ Id. 

at 2221, n.6.8

• Justice Kennedy: ‘‘The Los Angeles River, for instance, ordinarily carries only 

a trickle of water and often looks more like a dry roadway than a river. . . Yet 

it periodically releases water-volumes so powerful and destructive that it has been 

encased in concrete. . . over a length of some 50 miles. . . Though this particular 

waterway might satisfy the plurality’s test, it is illustrative of what often-dry watercourses can become when rain waters flow.’’ Id. at 2242 (emphasis supplied). 

10. CWA jurisdiction can cover regular floods from waterbodies. 

• Justice Scalia: In the statutory term ‘‘the waters of the United States,’’ the 

phrase ‘‘ ‘the waters’ refers more narrowly to. . . ‘the flowing or moving masses, 

as of waves or floods, making up such streams or bodies.’ ’’ Id. at 2220. ‘‘It seems 

to us wholly unreasonable to interpret the statute as regulating only ‘floods’ and ‘inundations’ rather than traditional waterways. . . .’’ Id. at 2221, n.4. Thus, the plurality believed regular floodwaters from permanent rivers and lakes are encompassed within ‘‘navigable waters.’’ Importantly, however, the plurality also criticized 

Corps interpretations and case law concluding that lands within the 100-year floodplain are included in ‘‘the waters of the United States.’’ Id. at 2218. 

• Justice Kennedy: ‘‘The term ‘waters’ may mean ‘flood or inundation,’. . .

events that are impermanent by definition. . . .’’ Id. at 2242. ‘‘The Court in Riverside Bayview rejected the proposition that origination in flooding was necessary for 

33 

9 ‘‘[W]hile both the plurality and Justice KENNEDY agree that there must be a remand for 

further proceedings, their respective opinions define different tests to be applied on remand. 

Given that all four Justices who have joined this opinion would uphold the Corps’ jurisdiction 

in both of these cases-and in all other cases in which either the plurality’s or Justice KENNEDY’s test is satisfied-on remand each of the judgments should be reinstated if either of those 

tests is met.’’ Rapanos, 126 S.Ct. at 2265 (Stevens, J. dissenting). 10 See, e.g., United States v. Johnson, 467 F.3d 56, 60 (1st Cir. 2006), reh’g and reh’g en banc 

denied (‘‘We conclude that the United States may assert jurisdiction over the target sites if it 

meets either Justice Kennedy’s legal standard or that of the plurality’’); Simsbury-Avon Preservation Soc’y, LLC v. Metacon Gun Club, 472 F.Supp.2d 219 (D.Conn. 2007), appeal pending (2d 

Cir.) (‘‘this Court will consider under both the plurality’s and Justice Kennedy’s standards the 

issue of whether the plaintiffs have demonstrated a genuine factual dispute about whether 

Metacon munitions are being discharged into the waters of the United States’’); United States 

v. Cundiff, 480 F.Supp.2d 940, 944 (W.D. Ky. 2007) (‘‘After a review of the case law, the court 

adopts the First Circuit’s approach and concludes that the United States may establish jurisdiction over the Cundiff site if it can meet either Justice Kennedy’s or the plurality’s standard as 

set forth in Rapanos’’). Cf. United States v. Sea Bay Development Corp., 2007 WL 1169188 at 

3 (E.D. Va. Apr. 18, 2007) ( ‘‘it is important to note’’ that Justice Stevens’s dissent said that 

Continued 

jurisdiction over wetlands. It did not suggest that a flood-based origin would not 

support jurisdiction; indeed it presumed the opposite. . . . [A] continuous connection is not necessary for moisture in wetlands to result from flooding—the connection might well exist only during floods.’’ Id. at 2244. 

11. As a general matter ‘‘navigable waters’’ and ‘‘point sources’’ are not the same 

thing, and normally a feature cannot be both. 

• Justice Scalia: ‘‘Most significant of all, the CWA itself categorizes the channels 

and conduits that typically carry intermittent flows or water separately from ‘navigable waters,’ by including them in the definition of ‘point source.’ ’’ Id. at 2222. The 

CWA’s definitions ‘‘conceive of ‘point sources’ and ‘navigable waters’ as separate and 

distinct categories. The definition of ‘discharge’ would make little sense if the two 

categories were significantly overlapping.’’ Id. at 2223. • Justice Kennedy: ‘‘[E]ven were the statute read [as the plurality does] to require continuity of flow for navigable waters, certain waterbodies could conceivably 

constitute both a point source and a water.’’ Id. at 2243 (emphasis supplied). 

Of course, all stakeholders would have benefited from an opinion in Rapanos that 

garnered a clear majority. However, proponents for legislative action in the 110th 

Congress ignore the important points of agreement among the five Justices, as outlined above—including the very first point enumerated (supra p. 23), where the Justices called for regulatory action. Not a single member of the Court thought the appropriate solution was for Congress to amend the CWA—much less to legislate a 

jurisdictional requirement to cover all intraState waters. 

C. Post-Rapanos Cases. 

The arc of judicial history interpreting the scope of statutory navigable waters is, 

by now, predictable: the Supreme Court issues an opinion on the meaning of ‘‘the 

waters of the United States,’’ which clarifies certain questions but leaves others unanswered, and the open issues are subsequently debated in the lower courts. The 

1985 Riverside Bayview opinion ruled that actually abutting wetlands are jurisdictional, but did not resolve the issue of isolated waters. The lower courts wrestled 

with that topic, issued conflicting opinions, and then in 2001 SWANCC decided that 

isolated waters are non-jurisdictional, at least insofar as the justification for regulating them is migratory bird use. But SWANCC did not address whether waters 

that are far away from traditional navigable waters could be regulated, if there is 

only a tenuous hydrological connection to navigable-in-fact features. Debate ensued 

in the lower courts on the hydrological connection issue, and in 2006, Rapanos 

showed that five Justices concurred that the hydrologic connection theory is not the 

appropriate test for CWA coverage. 

Accordingly, Rapanos fits the pattern going back over 20 years, to Riverside 

Bayview in 1985. Now, in the post-Rapanos era, the lower courts are debating: 

Which opinion controls, the Scalia plurality or the Kennedy concurrence? Within the 

view of the Scalia plurality, what is a ‘‘relatively permanent waterbody’’ and when 

does a wetland have a ‘‘relatively continuous surface connection’’ to navigable-in-fact 

water? For purposes of Justice Kennedy’s opinion, what does it mean for a wetland 

to have a ‘‘significant nexus’’ to a traditional navigable water? 

Since Rapanos was decided, the lower courts are divided as to whether the controlling test for CWA jurisdiction derives from the Scalia opinion, the Kennedy opinion, or both. In his Rapanos dissent, Justice Stevens maintained that either the plurality or the concurrence should control in a given case.9 Some lower courts have 

followed Justice Stevens’ ‘‘either/or’’ view.10 Other courts have adopted the position 

34 

‘‘navigable waters’’ should be determined by either the Scalia plurality or the Kennedy concurrence). 11 United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007) (‘‘[W]e join the Seventh and 

Ninth Circuits’ conclusion that Justice Kennedy’s ‘significant nexus’ test provides the governing 

rule of Rapanos’’); Northern California River Watch v. Healdsburg, 496 F.3d 993, 995 (9th Cir. 

2007), cert. pet. filed, 76 USLW 3260 (Nov. 5, 2007, 07–625) (‘‘In a 4–4–1 decision, the controlling opinion is that of Justice Kennedy who said that to qualify as a navigable water under the 

CWA the body of water itself need not be continuously flowing, but that there must be a ‘significant nexus’ to a waterway that is in fact navigable. Adjacency of wetlands to navigable waters 

alone is not sufficient’’); United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 

2006), cert. denied, 128 S.Ct 45 (2007) (‘‘When a majority of the Supreme Court agrees only on 

the outcome of a case and not on the ground for that outcome, lower-court judges are to follow 

the narrowest ground to which a majority of the Justices would have assented. . . . In Rapanos, 

that is Justice Kennedy’s ground’’). 

that Justice Kennedy’s ‘‘significant nexus’’ test is the sole determinant for CWA jurisdiction.11

While the courts differ on the controlling test for CWA jurisdiction, a significant 

pattern of consistency is definitely emerging in the post-Rapanos cases. Consistent 

with consensus points numbered 5 and 6 above (supra pp. 25–26), the lower courts 

are now taking a more thorough examination of the facts before them. In the cases 

before them, they are focusing on whether there is sufficient evidence of a close relationship between the non-navigable aquatic feature at issue and traditional navigable waters. The courts are largely in agreement in recognizing that proof of a tenuous and remote hydrologic connection is not sufficient; more is needed to invoke 

CWA jurisdiction. For example: 

• In N. Cal. River Watch v. city of Healdsburg, 496 F.3d 993 (9th Cir. 2007), 

the court delved deeply into the facts and found a significant nexus between a pond, 

its surrounding wetlands, and navigable-in-fact water. The trial court ‘‘found that 

the concentrations of chloride in the groundwater between the Pond and the Russian River are substantially higher than in the surrounding area. Chloride, which 

already exists in the Pond due to naturally occurring salts, reaches the River in 

higher concentrations as a direct result of Healdsburg’s discharge of sewage into the 

Pond. . . . At a monitoring well between the Pond and the River, the underground 

concentration is diluted to some 30 parts per million. Ultimately, a chloride concentration of 18 parts per million appears on the west side of the River. The district 

court thus found that chloride from the Pond over time makes its way to the River 

in higher concentrations than naturally occurring in the River. This finding was further supported by Dr. Larry Russell, one of River Watch’s trial experts.’’ Id. at 996– 

97. • In San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700 (9th Cir. 2007), 

the court found there was not sufficient proof of a ‘‘significant nexus’’ to support 

CWA jurisdiction. ‘‘By any permissible view of the evidence, the effect of Cargill’s 

Pond on Mowry Slough is speculative or insubstantial; the Pond does not significantly affect the integrity of the Slough. First, there is no evidence that any water 

has ever flowed from the Pond to the Slough. One expert asked whether ‘given the 

right hydrology conditions,’ water could flow from the Pond to the Slough, answered 

that ‘it is possible.’ There is no evidence, however, that those ‘right hydrology conditions’ have ever existed or were likely to exist. This testimony fits the definition of 

‘speculative.’ ’’ Id. at 708. • In United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), the court remanded for a new trial because a jury instruction improperly allowed evidence of 

CWA jurisdiction upon a mere hydrologic connection. ‘‘[A] ‘mere hydrologic connection’ will not necessarily be enough to satisfy the ‘significant nexus’ test. . . .The 

district court here did not mention the phrase ‘significant nexus’ in its ‘navigable 

waters’ instruction to the jury or advise the jury to consider the chemical, physical, 

or biological effect of Avondale Creek on the Black Warrior River.’’ Id. at 1222. 

‘‘Here, the government failed to satisfy its burden. Although Wagoner (the EPA investigator) testified that in his opinion there is a continuous uninterrupted flow between Avondale Creek and the Black Warrior River, he did not testify as to any ‘significant nexus’ between Avondale Creek and the Black Warrior River. The government did not present any evidence, through Wagoner or otherwise, about the possible chemical, physical, or biological effect that Avondale Creek may have on the 

Black Warrior River, and there was also no evidence presented of any actual harm 

suffered by the Black Warrior River.’’ Id. at 1223. 

• In Simsbury-Avon Preservation Soc’y, LLC v. Metacon Gun Club, Inc., 472 

F.Supp.2d 219, 230 (D. Conn. 2007), appeal pending (2d Cir), the court found no 

CWA jurisdiction over vernal pools and surrounding wetlands. ‘‘Plaintiffs’ inconclusive water sampling data cannot buttress the rest of plaintiffs’ record so as to demVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
35 

onstrate that a rational trier of fact could find the required substantial nexus. . . . [T]his is a case in which the ‘wetlands’ effects on water quality are speculative or 

insubstantial, [thus] fall[ing] outside the zone fairly encompassed by the statutory 

term ‘navigable waters.’ ’’ • In Envt’l Prot. Ctr. v. Pac. Lumber Co., 2007 WL 43654 (N.D. Cal. Jan. 8, 

2007), at *14, another court emphasized the need to prove more than a mere hydrologic connection. ‘‘A hydrologic connection without more will not comport with the 

Rapanos standard in this case. Because the evidence indicates that certain of the 

Class II and all of the Class III streams are intermittent or ephemeral watercourses, EPIC must demonstrate that these streams have some sort of significance 

for the water quality of Bear Creek. None of the evidence offered by EPIC—field 

observations, the GIS map, or expert testimony—address this part of the substantial 

nexus standard.’’ • In United States v. Cundiff, 480 F.Supp.2d 940, 945 (W.D. Ky. 2007), the government met its evidentiary burden to prove the existence of a significant nexus to 

traditional navigable waters. The government expert testified that ditching activity 

‘‘diminished the capacity of the wetlands in question to store water,’’ and the resultant increases in frequency and extent of downstream flooding ‘‘impact[s] navigation, 

crop production in bottomlands, downstream bank erosion, and sedimentation’’ (emphasis supplied). Further, ‘‘[w]hen the acid mine drainage and associated sediments 

move too quickly downstream. . . there are direct and significant impacts to navigation (via sediment accumulation in the Green River. . . .’’ (Emphasis supplied.) 

In summary, while issues are left to be resolved after Rapanos, the lower courts 

are solid on the point that the mere hydrologic connection theory is not the basis 

for CWA coverage. And, they are undertaking thorough record examinations of the 

evidence before them to determine if the requisite nexus exists between non-navigable features and traditional navigable waters. That some courts might find the 

required connection in certain cases, while others do not, is unsurprising. ‘‘[E]ach 

determination as to navigability must stand on its own facts.’’ United States v. Appalachian Power Co., 311 U.S. 377, 403 (1940) (quoting United States v. Utah, 283 

U.S. 64, 87 (1931)). Considering that the CWA imposes great intrusions into the 

uses of private property, and effects significant land use controls that are traditionally within the province of State and local governments, close judicial scrutiny of 

the proof offered by Federal regulators is a positive result generated by Rapanos. 

CWA law and policy only stand to gain as the agencies develop better factual evidence in the field to support CWA jurisdictional determinations. 

The agencies have already made important strides in this regard. Their postRapanos field guidance is the opening salvo in discussions that will continue on the 

appropriate evidentiary showing for CWA jurisdiction. See Headquarters Memorandum to EPA Regions and Corps of Engineers Field Offices, CWA Jurisdiction 

Following the U.S. Supreme Court Decision in Rapanos v. United States (2007), 

available at http://www.usace.army.mil/cw/cecwo/reg/cwa—guide/app—a—rapanos— 

guide.pdfThe public has been asked to provide input on the Rapanos guidance package, and comments are due on January 21, 2008. This process must be given sufficient time to run its course. 

IV. CONCLUSION

The entire history of the CWA, as it has been debated in Congress, implemented 

by the agencies, and considered in the courts, has been an effort to balance important public policy considerations within the framework of the Constitution and the 

principles of federalism. NAHB believes Congress must not expand the CWA’s scope 

to cover all intraState waters for the following reasons: 

1. Such an approach would greatly disserve the original intent of the 1972 Act, 

which struck a reasonable balance between modernizing Federal power over traditional navigable waters and maintaining State oversight of intraState waters that 

have no demonstrable nexus to channels of interState commerce; 

2. A massive expansion of Federal control over all intraState waters raises serious 

constitutional questions. Certain legislative proposals pending before Congress 

would only resuscitate the very same constitutional debate that caused confusion in 

the courts and on the ground in the pre-SWANCC years; and 

3. In the post-Rapanos era, the Federal agencies are finally starting to do the 

hard, factual work of evaluating evidence as to whether a particular non-navigable 

water feature has substantial connections to traditional navigable waters. Congress 

should allow this process to continue before seeking legislation. 

There is no doubt that wetlands and other non-navigable features serve important 

ecological and societal functions. Their protection is necessary and is provided for 

by a cooperative effort between the Federal Government and the individual states. 

36 

CWA regulation cannot go to extreme lengths so as to subvert the Act’s purpose to 

‘‘recognize, preserve, and protect the primary rights and responsibilities of States’’ 

to control water resources and address water pollution within their borders. 33 

U.S.C. at 1254(b) (emphasis supplied). With these considerations in mind, it would 

be highly controversial and constitutionally questionable for Congress to amend the 

CWA in a manner that protects all intraState waters. Such an approach would wander far astray from the 1972 Act’s original intent. It would greatly undermine the 

careful balance among competing policies that Congress, the Supreme Court, and 

the Executive Agencies have been searching for in the 35 years since the CWA’s enactment. 

RESPONSES BY DUANE DESIDERIO TO ADDITIONAL QUESTIONS

FROM SENATOR BOXER

Question 1. InsideEPA recently reported that the National Association of Home 

Builders requested to be allowed to bypass the jurisdictional step in the Clean 

Water Act permit process because, it said, the assessment process under Rapanos/ 

Carabell could take regulators ‘‘months or possibly even years to complete.’’ Can you 

please explain in detail what difficulties and delays have been experienced by the 

Home Builders’ Association members as a result of Rapanos/Carabell? 

Response. The following issues affecting home builders have become evident since 

the Supreme Court decided Rapanos: 

• Jurisdictional determinations (JDs) and Corps Section 404 permits are taking 

longer than ever; • higher costs have resulted for those who submit JDs; and • no quantified criteria or threshold requirements have been established for a significant nexus determination, required by the Rapanos Guidance issued by the 

Corps and EPA which is now subject to a notice and comment process. 

While there are difficulties and delays regarding JDs and permit issuance since 

Rapanos, NAHB recognizes that not a single Member of the Court called for congressional action to resolve debate around CWA jurisdiction over the scope of statutory ‘‘navigable waters.’’ Indeed, several Justices explicitly called upon the Corps 

and EPA to conduct rulemaking to determine the scope of their authority. See 

Desiderio Testimony at pp. 23–24. NAHB agrees that matters concerning interpretation of Rapanos are best left to the agencies. The notice and comment process on 

their joint Rapanos Guidance must be allowed to run its course and be followed by 

rulemaking proceedings. NAHB believes a rulemaking, rather than a legislative fix, 

is a more appropriate response to any delays. • JDs and Permits are Taking Longer Than Ever. During his testimony before the 

House Transportation and Infrastructure Committee on October 18, 2007, Mr. John 

Woodley, Assistant Secretary of the Army for Civil Works, admitted that the Corps 

is taking longer to issue Section 404 permits because of the additional work for staff 

required by the new Guidance procedures. In addition, regulatory requirements at 

33 CFR 325.2(d)(3) provide that District engineers must make decisions on permit 

applications not later than 60 days after receipt of a complete application. In practice, the Corps Districts have often been unable to meet that deadline. Statistics 

published on the Corps website indicate that in 2003 the average permit decision 

took about 6 months. However, since the Guidance, permit delays have become 

worse. Some Districts are now informing applicants that their permits are likely to 

take a minimum of 6–12 months. 

• Higher Costs Have Resulted for Those who Submit JDs Information garnered 

from NAHB’s members, their consultants, and from comments already submitted to 

the Rapanos Guidance docket, shows that costs have increased for those applicants 

who fill out the JD forms. The escalation in costs is due to the increased information 

needed to fill out the forms, and to the increased time and attention required to ensure that the application continues to move through the permitting process and is 

not disregarded for other applications that may get favored treatment for a variety 

of reasons, such as not requiring a significant nexus decision. 

• No Quantified Criteria or Threshold Requirements Have Been Established for 

a Significant Nexus Decision Based on Science Page 6, Part C of the JD Form lists 

four questions to be considered to establish a significant nexus connection: 

• Does the tributary, in combination with its adjacent wetlands (if any), have the 

capacity to carry pollutants or flood waters to traditional navigable waters (TNWs), 

or to reduce the amount of pollutants or flood waters reaching a TNW? 

• Does the tributary, in combination with its adjacent wetlands (if any), provide 

habitat and lifecycle support functions for fish and other species, such as feeding, 

nesting, spawning, or rearing young for species that are present in the TNW? 

37 

• Does the tributary, in combination with its adjacent wetlands (if any), have the 

capacity to transfer nutrients and organic carbon that support downstream 

foodwebs? 

• Does the tributary, in combination with its adjacent wetlands (if any), have 

other relationships to the physical, chemical, or biological integrity of the TNW? 

The above questions are so subjective that they can be answered in the affirmative for virtually any wetland. Providing answers to these open-ended questions is 

burdensome, time consuming, and costly for NAHB’s members. The agencies should 

resolve these problems as they work through their review of comments on the 

Rapanos Guidance. Again, NAHB believes the notice and comment process needs to 

run its course, followed by rulemaking proceedings; a legislative fix, is not an appropriate response to the delays. 

Question 2. You say in your testimony that the Home Builders’ Association has 

been an advocate for the Clean Water Act since its inception. As you know, the purpose of the Act is to ‘‘restore and maintain the chemical, physical and biological integrity of the Nation’s waters.’’ 

• If a wetland, intermittent stream or other water is functionally connected to a 

navigable water or a tributary, in other words, if pollution or destruction of the wetland or intermittent stream could harm the chemical, physical or biological integrity 

of the navigable water, does the Home Builders’ Association agree that there should 

be protection under the Clean Water Act? 

Response. The question is unclear. The phrase ‘‘functionally connected’’ has no 

well-accepted meaning. 

In any event, the question is premised on the phrase ‘‘could harm’’—that is, 

whether pollution in a wetland or stream ‘‘could harm’’ a traditional navigable 

water. In the circumstance where impacts to an upstream aquatic feature might, potentially or hypothetically, harm a downstream traditionally navigable water, then 

under case holdings that upstream feature would not be covered by the Clean Water 

Act and would arguably exceed constitutional authority. For example, Justice Kennedy explained in Rapanos that, ‘‘[w]hen wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’ ’’ United States v. Rapanos, 126 S.Ct. 2208, 2248 (2006) 

(Kennedy, J., concurring). Similarly, the U.S. Court of Appeals for the Fourth Circuit struck regulations of the Corps that illegally based CWA coverage where destruction of ‘‘other waters’’ ‘‘could affect’’ interState commerce, because those regulations ‘‘require[d] neither that the regulated activity have a substantial effect on 

interState commerce, nor that the covered water have any sort of nexus with navigable, or even interstate, waters’’ (original emphasis). United States v. Wilson, 133 

F.3d 251, 257 (4th Cir. 1997). And the U.S. Court of Appeals for the Second Circuit 

has ruled that the ‘‘Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges—not potential discharges, and certainly not point sources 

themselves.’’ Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 505 (2d Cir. 2005) 

citing NRDC v. EPA, 859 F.2d 156, 170 (D.C. Cir. 1988) (original emphasis). 

• Are there certain categories of wetlands, intermittent streams and other waters 

that the Home Builders’ Association believes should not be protected by the Clean 

Water Act, even if that does result in harm to the chemical, physical or biological 

integrity of navigable waters and tributaries? If so, please list and describe in detail 

each category of water that in the Association’s view should not be protected under 

the Act. 

Please see answer to question #3, below, which provides principles for determining the extent of CWA coverage. 

• Consider the case where a certain type of water, such as a wetland, taken together with other similar wetlands, is important and necessary to protecting the integrity of a nearby water that is navigable under the traditional definition of that 

term. But assuming that such a wetland, considered individually, does not meet the 

Rapanos/Carabell test for Clean Water Act jurisdiction, is it the view of the Home 

Builders’ Association that there should be no protection of that wetland under the 

Act? What positions have the Association’s representatives taken on this issue in 

communications with the Corps of Engineers and/or the Environmental Protection 

Agency since the Rapanos/Carabell decision was issued? 

This question asks for an assumption that hypothetical wetlands ‘‘do[ ] not meet 

the Rapanos/Carabell test for Clean Water Act jurisdiction.’’ (Emphasis supplied.) 

However, a majority of Justices in Rapanos/Carabell failed to agree on an overarching, definitive test to determine whether particular aquatic features are covered 

by the CWA. Please see answer to question #3, below, which provides principles for 

determining the extent of CWA coverage. 

38 

In any event, the question can be considered in light of the following statement 

from Justice Kennedy’s opinion concurring in the Rapanos judgment: 

‘‘[W]etlands possess the requisite nexus, and thus come within the statutory 

phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’ 

When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term.’’ Rapanos, 

126 S.Ct. at 2248 (Kennedy, J., concurring; emphasis supplied). 

Justice Kennedy stated that ‘‘the wetlands,’’ to be considered jurisdictional, must 

have a significant (not speculative or insubstantial) effect on traditional navigable 

waters. Accordingly, his statement does not justify categorical license for jurisdiction 

over all wetlands in a region; the focus must be on ‘‘the’’ wetlands at issue in a 

given case, to determine if that particular feature is jurisdictional. 

Further instruction is needed to explain the phrase ‘‘similarly situated.’’ If that 

particular wetland alone does not have a significant effect on traditional navigable 

waters, then Justice Kennedy stated it could be combined only with other ‘‘similarly 

situated’’ wetlands. The phrase ‘‘similarly situated’’ has no reference point in any 

CWA case or regulation. While ‘‘similarly situated’’ is commonly used in cases concerning the Equal Protection Clause of the Fourteenth Amendment, it wholly lacks 

any well-accepted or understood meaning in the ‘‘navigable waters’’ context. Wetlands serve different functions and values, within and among varying watersheds 

and locations. Indeed, not all wetlands provide equivalent protection in terms of pollutant trapping, flood control, runoff storage, and habitat. Thus, before any wetland 

combination could occur to determine if particular wetlands are subject to the Act’s 

coverage, the agencies would need to define ‘‘similarly situated’’ through rulemaking. 

NAHB has taken no official position on the language quoted above from Justice 

Kennedy’s opinion, and it has not offered any official interpretation to either the 

Corps or EPA. 

Question 3. Does the Home Builders’ Association agree with the jurisdictional test 

stated by Justice Scalia in the Rapanos/Carabell case, as described at page 21 in 

your testimony, or does it support some other test, and if so what is that? 

Response. Although Rapanos announced no over-arching, definitive test to determine whether particular aquatic features are covered by the CWA., NAHB believes 

that the jurisdictional test articulated by Justice Scalia’s plurality opinion must be 

considered and applied on a case-by-case basis because it has been adopted by four 

members of the Supreme Court. Likewise, Justice Kennedy’s ‘‘significant nexus’’ test 

must be considered and applied on a case-by-case basis—although it cannot be considered a holding from Rapanos because only one member of the Court adopted it. 

NAHB believes that the following principles are applicable to determine if a particular aquatic feature is subject to CWA coverage: 

• Traditional navigable waters, and wetlands that actually abut them, are covered by the CWA. (See Desiderio Testimony at pp. 11–12.) 

• Isolated, intrastate, non-navigable water features are not covered by the CWA. 

(See Desiderio Testimony at pp. 16–18.) 

• Non-traditional navigable waterbodies that are intrastate, navigable-in-fact, 

and part of a chain of interState commerce, even though they are not part of a continuous navigable highway of commerce, are covered by the CWA (even though they 

are not traditional navigable waters). (See Desiderio Testimony at pp. 6–10.) 

• A mere hydrological connection between an aquatic feature and a traditional 

navigable water does not render that feature a ‘‘navigable water’’ for purposes of the 

CWA. (See Desiderio Testimony at p 25.) 

• Aquatic features that have only a hypothetical, speculative, insubstantial, or 

eventual connection to traditional navigable waters are not ‘‘navigable waters’’ for 

purposes of the CWA. (See Desiderio Testimony at pp. 25–26.) 

• Mere presence of an ordinary high water mark does not render a feature a jurisdictional ‘‘tributary,’’ or the wetlands next to such a feature jurisdictional ‘‘adjacent wetlands.’’ (See Desiderio Testimony at p. 27.) 

• CWA jurisdiction is not lost due to drought conditions. (See Desiderio Testimony 

at p. 27.) 

• CWA jurisdiction is not lost simply because a waterbody is wet during certain 

seasons and dry during others. (See Desiderio Testimony at pp. 27–28.) 

• CWA jurisdiction can cover regular floods from waterbodies. (See Desiderio Testimony at p. 28.) 

• Point sources, such as ditches, storm detention ponds, and municipal separate 

storm sewer systems and components thereof, are not ‘‘navigable waters’’ for purVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
39 

poses of the CWA. However, discharges of pollutants from such features require 

CWA permits. (See Desiderio Testimony at pp. 28–29.) 

RESPONSES BY DUANE DESIDERIO TO ADDITIONAL QUESTIONS

FROM SENATOR INHOFE

Question 1. Some have argued today that there is a point in the regulatory history 

to which we could return when jurisdiction was clear and agreed upon. Do you know 

of any such time that Congress could use as a benchmark should we decide that 

a legislative fix is in order? 

Response. In terms of the regulatory history of the Clean Water Act since its enactment in 1972, the answer is ‘‘no.’’ In terms of Federal regulation generally over 

water features, the answer is ‘‘yes.’’ Before the CWA’s enactment in 1972, it was 

relatively clear that Federal jurisdiction over water features extended only so far 

to reach traditional navigable waters as outlined by The Daniel Ball, 77 U.S. 557 

(1871), and as modified by United States v. Appalachian Elec. Power Co., 311 U.S. 

377 (1940) and other cases. Please see Desiderio Testimony pp. 4–5 for a discussion 

of these cases. 

Question 2. In your written statement, you discuss the 1997 Wilson decision which 

preceded the Supreme Court’s SWANCC decision. In the Fourth Circuit’s decision, 

the Court found that the Corps’ ‘‘other waters’’ regulation is unauthorized by the 

Clean Water Act as limited by the Commerce Clause. Does this decision provide us 

any insights as to what a Court might do were legislation passed that strikes the 

Commerce Clause as the basis behind congressional authority under the Clean 

Water Act? 

Response. Yes, the Wilson decision does provide insight into a court’s reaction into 

such a piece of legislation. Wilson struck the Corps’s (a)(iii) regulation, because it 

purported to regulate ‘‘other waters’’ which, if degraded, ‘‘could affect’’ interState 

commerce. The Fourth Circuit declared that regulation illegal because it ‘‘require[d] 

neither that the regulated activity have a substantial effect on interState commerce, 

nor that the covered water have any sort of nexus with navigable, or even interstate, waters.’’ Wilson, 133 F.3d at 257. Legislation that would purport to codify the 

‘‘could affect’’ regulations would encounter the same constitutional questions. Please 

see Desiderio Testimony pp. 15–16 for a discussion of Wilson. 

Question 3. Can you describe for the Committee what actions a homebuilder 

might take to protect local drinking water supplies during construction? 

Response. The Environmental Protection Agency (‘‘EPA’’) has determined that discharges from residential construction activities ‘‘consist predominantly of conventional pollutants’’—namely, sediment. EPA has formally determined that toxics are 

not pollutants of concern from construction and development activities. Thus, the 

agency has removed the construction industry from its congressionally required list 

of industries that discharge toxic and non-conventional pollutants in non-trivial 

amounts. See 69 Fed. Reg. 53,705, 53,718 (Sept. 2, 2004); 71 Fed. Reg. 76,644, 

76,664-65 (Dec. 21, 2006). 

As to sediment, home builders undertake myriad measures under Federal, state, 

and local law—often duplicative and sometimes contradictory—to reduce erosion 

and retain stormwater onsite. They undertake these requirements regardless of 

whether drinking water supplies might be affected. The following is a brief summary of requirements that derive from the Federal CWA. 

During construction activity, EPA’s implementing regulations under the National 

Pollutant Discharge Elimination System (‘‘NPDES’’) require home builders to obtain 

permit coverage for stormwater discharges. Under EPA’s stormwater Phase I and 

Phase II rules, any residential construction site in the country that is one acre or 

larger in size is subject to permitting requirements; even single lots, in subdivisions 

one acre or larger, must satisfy NPDES controls or state-equivalent measures approved by EPA. Before securing Section 402 permit coverage a house a homebuilder 

must complete a Storm Water Pollution Prevention Plan (‘‘SWPPP’’). A SWPPP lays 

out the specific pollution control practices that will be implemented onsite to safeguard the environment during construction. A SWPPP must accompany the request 

for coverage under a construction general permit (CGP). The relevant permitting 

agency, which may be the EPA, a state, a tribe, or a municipality, must review and 

approve the SWPPP before construction may begin. 

The SWPPP must not only identify all potential sources of pollution to storm 

water discharges from the construction site, but also identify Best Management 

Practices (‘‘BMPs’’) the homebuilder will use to reduce pollutants in stormwater discharges to ensure CGP compliance. Examples of controls that must be addressed in 

the SWPPP include descriptions of temporary and permanent stabilization practices 

40 

(e.g., seeding of vegetation, geotextiles, vegetative buffer strips, and preservation of 

trees); and structures that divert flows of storm water or treat storm water onsite 

(e.g., construction entrance pads, vehicle washing to maintain sediment onsite, silt 

fences, inlet protection, sediment traps, and sediment basins). The SWPPP must 

also contain a regular inspection and maintenance schedule. 

Drinking water supplies are protected by more stringent State or local ordinances 

or regulations. For example, building and site-development codes often impose additional erosion and sediment control BMPs on the homebuilder during construction. 

Land-use controls are also used to ensure that planned development will not compromise drinking water quality or groundwater discharge. States authorized to implement the Safe Drinking Water Act within their jurisdictions may also imposed 

additional barriers against sediment pollution through source water protection 

measures and additional onsite inspections. If there is an existing pollution problem 

with one or more pollutants affecting the quality of the local drinking water supplies, a Total Maximum Daily Load (TMDL) will specify waste load and load allocations for all pollution sources located on the stream or lake covered by the TMDL. 

In any case, all environmental requirements including any additional measures required to protect drinking water supplies must be addressed in the SWPPP and be 

approved by the permitting agency before construction may begin. 

Senator BOXER. Thank you very much. 

And our next speaker is George J. Mannina, Jr., attorney at law, 

O’Connor and Hannan, LLP. Welcome, sir. 

STATEMENT OF GEORGE J. MANNINA, JR., ATTORNEY AT LAW, 

O’CONNOR AND HANNAN, LLP 

Mr. MANNINA. Thank you, Madam Chairwoman and distinguished members of the Committee. Thank you for allowing me to 

appear before you today. I hope that the observations I might offer 

will be constructive to you as you chart your course for the future. 

At the outset, let me say that there always has been and will be 

confusion about what is a jurisdictional water of the United States. 

Areas that were not jurisdictional in 1975 became jurisdictional 

through regulatory changes in 1977. Other changes were made in 

1982 and 1986, bringing still other areas into the jurisdictional 

reach of the Clean Water Act, all absent any change in the legislation from the Congress. 

Similarly, if you ask the question, what areas are wetlands, you 

would receive a different answer, depending upon what year you 

asked that question. Recently, the Government Accountability Office said that the Corps’ district offices, all bound by the same set 

of regulations, are in fact using different standards to determine 

what is or is not subject to the jurisdiction of the Clean Water Act. 

And to digress for a minute, curiously, in 13 of the 16 Corps districts which the GAO surveyed, GAO found there was no written 

guidance by which the public could determine the standards being 

employed by the Corps to make these jurisdictional decisions. 

I think you ladies and gentlemen of this committee and this Congress have a choice. You are at a crossroad as to which direction 

to go. You can take one direction and follow in the steps of your 

predecessors, Senators like Mr. Muskie and Mr. Bentsen, who 

grounded the Act in navigability. The Supreme Court has said that 

has some limits to it, but that was the wisdom of the Congress 

through all these years. 

Alternatively, you could remove navigability from the Act and 

reach a far larger set of waters. There are some issues that you 

may wish to consider with respect to that. Specifically, let me recall 

the SWANCC case. The waters on the SWANCC site, and I litigated the SWANCC case, so I am familiar with this, those waters 

41 

1 Mr. Mannina is a senior partner in the environmental law practice of O’Connor & Hannan, 

LLP and was retained by the Solid Waste Agency of Northern Cook County (‘‘SWANCC’’) in 

challenging the jurisdiction of the Corps of Engineers under the Clean Water Act in the case 

which became Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 

531 U.S. 159 (2001) (‘‘SWANCC’’). 

were left over from strip mining. They were isolated ruts and 

trenches that filled with rain water. The Corps of Engineers said 

that they were not wetlands, they had no hydrological connection 

with any other water. The only basis for jurisdiction was the presence of migratory birds. 

If your purpose is to protect every wet area in the United States, 

then overturning SWANCC will get you there. If your purpose is 

to stay with the concept of navigability as your predecessors did, 

then you choose a different direction. I have heard it said that it 

would be simpler to return to the pre-SWANCC era. I am not certain that is exactly correct. In the first instance, you would still 

have before you the issues identified in the 2004 GAO report about 

the Corps district offices employing different standards in applying 

the same regulations. 

But in one respect it might be easier. The Government Accountability Office asked the Corps why they were using different standards, and the Corps people said, according to GAO, that we are 

truly, for the first time, wrestling with how to apply the regulations. Pre-SWANCC, virtually every area was jurisdictional because virtually every wet area could be subject to use by migratory 

birds. That made jurisdictional decisions somewhat easier. 

If you return to the pre-SWANCC era and resurrect the migratory bird rule, you will be making those jurisdictional decisions 

easier because there will be a much larger set of areas subject to 

the jurisdiction. But that is your choice, and I would be more than 

happy to answer any questions that you might have. 

Thank you. 

[The prepared statement of Mr. Mannina follows:] 

STATEMENT OF GEORGE J. MANNINA, JR1., ATTORNEY AT LAW, 

O’CONNOR AND HANNAN, LLP 

Madam Chairwoman and distinguished members of the Committee, I am pleased 

to have the opportunity to appear before you. As this is an oversight hearing, it is 

not my purpose to suggest or recommend a course of action for this Committee. Instead, I will offer commentary on the State of the law which I hope will be constructive as you and your colleagues determine the appropriate course of action regarding 

whether and how to amend the Clean Water Act. 

It may be helpful at the outset to recognize that there is, and always has been, 

uncertainty regarding what waters are jurisdictional under the Clean Water Act. Although Congress has never changed the definition of the term ‘‘navigable waters,’’ 

the Corps of Engineers (‘‘Corps’’) and the Environmental Protection Agency (‘‘EPA’’) 

have, over the years, employed different regulatory definitions of what is a navigable water subject to the Clean Water Act. What was not jurisdictional in 1975 

might have become jurisdictional in 1977, 1982, or 1986. 

Not only has the regulatory definition of what is a jurisdictional navigable water 

changed, but the answer to the question ‘‘what is a wetland’’ has been different depending on what year the question was asked. Complicating the problem from the 

public’s perspective is that as recently as 2004, the General Accounting Office 

(‘‘GAO’’) reported that different Corps District Offices, all of which were bound by 

the same regulations and the same Wetlands Delineation Manual, were applying 

these documents very differently in determining what is a navigable water. What 

is an adjacent wetland in one Corps District might not be in another. What is a 

tributary in one District is not in another. GAO also reports that in 13 of the 16 

District Offices it surveyed, there are no written standards the pubic can consult 

42 

to understand the criteria used to determine Clean Water Act jurisdiction. It is no 

wonder the public is often confused. 

I have heard it said that if we return to a simpler time, the era before Solid Waste 

Agency of Northern Cook County v. U.S. Army Corps of Engineers was decided, 

then this uncertainty would disappear because, in that era, everyone knew what 

was jurisdictional. I believe the issue is far more complex. That said, in one respect, 

returning to the pre-SWANCC era and resurrecting the Migratory Bird Rule might 

be easier. GAO, in its 2004 review of Clean Water Act jurisdictional decisionmaking, 

noted that jurisdictional decisions were easier pre-SWANCC because ‘‘nearly all waters and wetlands in the United States were potentially jurisdictional’’ under the 

Migratory Bird Rule. Thus, as GAO reports, in the pre-SWANCC era there was 

hardly an area which could not be jurisdictional because there was hardly a wet 

area which could not be used by birds. Generally, this made jurisdictional decisions 

easier. 

However, resurrecting the Migratory Bird Rule will not necessarily end the jurisdictional debate. It would still leave uncertain issues such as what constitutes the 

ordinary high water mark of an area for jurisdictional purposes, are submerged 

drainage tiles a tributary, and how far can an insolated water be from a navigablein-fact water and still be jurisdictional. 

Returning to the pre-SWANCC era is also likely to resurrect constitutional questions that will need to be resolved by the Supreme Court regarding whether exercising Clean Water Act jurisdiction based on a migratory bird rule violates the Commerce Clause of the Constitution or unconstitutionally infringes on the balance of 

State and Federal powers regarding land management processes. I recognize strong 

arguments can be mustered on both sides of the constitutional debate and I do not 

pretend to be wise enough to predict what the Supreme Court will do. I only know 

that when these issues were presented in the SWANCC case, the Court said there 

were ‘‘significant constitutional questions’’ raised by the Migratory Bird Rule. 

With that introduction, I would like to trace for the Committee the history of the 

regulatory interpretations given the term ‘‘navigable waters,’’ including the origins 

of the Migratory Bird Rule, explain the history of wetlands delineation procedures, 

review the 2004 GAO Report which addresses Corps’ jurisdictional practices, and 

suggest a few issues for your consideration. 

I. OVERVIEW OF CLEAN WATER ACT JURISDICTIONAL

REGULATIONS UNTIL 1986

The history of what constitutes a jurisdictional water under the Clean Water Act 

has been evolutionary. Although Congress has not changed the basic statutory provisions which define ‘‘navigable waters’’ as ‘‘waters of the United States,’’ the manner in which the Corps and EPA have interpreted the jurisdictional reach of the 

Clean Water Act has changed over time. The Supreme Court traced part of this evolution in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123–124 

(1985). Initially, the Corps interpreted the Clean Water Act as embracing no more 

than navigable waters and their adjuncts. See Permits for Activities in Navigable 

Waters or Ocean Waters, 39 Fed. Reg. 12115 (1974). After a judicial challenge to 

that definition, the Corps issued new regulations in 1975 redefining the term ‘‘waters of the United States’’ to also include tributaries of navigable-in-fact waters as 

well as interState waters and their tributaries and non-navigable intraState waters 

whose use could affect interState commerce. See 40 Fed. Reg. 31320 (1975). 

In 1977, the Corps further revised its regulations, codifying the 1975 interim regulations as final regulations, creating the nationwide Permit program, and making 

regulatory changes by doing things such as eliminating the reference to the standard that wetlands needed to be periodically inundated, adding a definition of what 

constituted an ‘‘adjacent’’ wetland, and making clear that wetlands included 

swamps, bogs, and marshes. See 42 Fed. Reg. 37122, 37126–30 (1977). 

In 1982 and various times thereafter, the Corps has changed the regulations. 

Some of the changes were technical and some, such as the Migratory Bird Rule, 

were significant. All of these changes regarding what is a ‘‘navigable water’’ have 

occurred without any definitional changes being adopted by Congress. 

II. HISTORY OF THE MIGRATORY BIRD RULE

In 1985, 13 years after the Clean Water Act was passed, the Corps determined 

that the use of isolated waters by migratory birds could provide a sufficient interState commerce connection to support Clean Water Act jurisdiction. This one action 

brought millions of acres under Clean Water Act jurisdiction. 

43 

2 Memorandum to Corps District Offices from General Patrick Kelly, Deputy Director of Civil 

Water, November 8, 1985. 3 At the Oversight Hearing, Senator Mitchell asked Richard Sanderson, EPA’s Deputy Assistant Administrator for External Affairs, to confer with EPA’s General Counsel concerning the use 

or potential use of an area by migratory birds or endangered species as a basis for Clean Water 

Act jurisdiction. In response, the EPA’s General Counsel, Francis Blake, wrote a memorandum 

stating jurisdiction may be invoked if waters are used or could be used by migratory birds or 

endangered species. Brigadier General Kelly’s memorandum was distributed to inform Corps 

District Offices of Mr. Blake’s conclusion. 4 This debate is reflected in the declaration of goals and policy in the Clean Water Act which 

states: 

Despite the significant regulatory impact of the Migratory Bird Rule, it was not 

adopted using the traditional Administrative Procedure Act public notice and comment rulemaking procedures as had been the case up to that time under the Clean 

Water Act. Instead, the Migratory Bird Rule was born on November 8, 1985 through 

an unpublished memorandum issued to Corps District Offices by Brigadier General 

Patrick J. Kelly.2 The change was prompted by a request from Senator George 

Mitchell during a Section 404 Oversight Hearing before the Committee on Environment and Public Works on July 15, 1985 that this matter be considered.3

The public was not advised of the Corps’ rule change until 1 year after it was 

adopted. The notice to the public came in the preamble to new regulations issued 

under the Clean Water Act. See 51 Fed. Reg. 41206, 41217 (1986). In the preamble 

to the new regulations, the Corps commented that the requisite link with interState 

commerce for Clean Water Act jurisdiction may be satisfied by showing the presence 

of waters which ‘‘are or would be used as habitat’’ by migratory birds or endangered 

species. Notably, the Corps’ preamble comment was not included in the actual text 

of the final regulations. 

In considering what the public was told about this new policy, it is significant that 

the public notice of the Corps’ new policy states the jurisdictional standard is whether the area contains waters which ‘‘are or would be used’’ as habitat by migratory 

birds. In contrast, Brigadier General Kelly’s unpublished Memorandum to Corps offices directed the Corps to declare an area jurisdictional if it contains waters which 

‘‘are or could be used’’ as habitat by migratory birds. ‘‘Would’’ is defined as expressing ‘‘habitual action.’’ Webster’s New World Dictionary (2d Ed.). ‘‘Could’’ is defined 

as ‘‘to be able.’’ Id. The Corps advised the public the standard was ‘‘would be used’’ 

when, in fact, the Corps was employing a different ‘‘could be used’’ standard to decide Clean Water Act jurisdiction. 

III. DOES THE TERM ‘‘NAVIGABLE WATERS’’ HAVE MEANING?

Under section 404, the Corps may regulate discharges into ‘‘navigable waters’’ 

which are defined as ‘‘waters of the United States.’’ 33 U.S.C. 1362(7); 33 C.F.R. 

328.3. In considering the meaning of these words, the Supreme Court said Congress 

chose the concept of navigability to anchor the Act and ‘‘it is one thing to give a 

word limited effect and quite another to give it no effect whatever.’’ SWANCC, 531 

U.S. at 172. One question this Committee may wish to consider as you debate the 

future of the Clean Water Act is what did your predecessors intend by using the 

term ‘‘navigable waters.’’ 

A. The 1972 Legislative History of the Term ‘‘Navigable Waters’’ 

In choosing the term ‘‘navigable waters’’ to define Corps jurisdiction under the 

Clean Water Act, Congress selected a term with a clear historical meaning which 

did not include all wet areas of the United States. In 1871, the Supreme Court defined ‘‘navigable waters’’ as those waterways that: 

are used or are susceptible of being used, in their ordinary condition, as highways 

for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. 

The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1871). However, this definition was 

viewed as too narrow to achieve Congress’ purposes under the Clean Water Act. 

Congressional debate preceding enactment of the Clean Water Act demonstrates 

Congress was grappling with the challenge of designing an effective scheme to end 

the pollution of our Nation’s waters.4 Given that goal, a program which only regulated discharges into traditional navigable waters such as rivers would be a futile 

exercise if discharges into connected tributaries and estuaries were not also regulated. 

The objective of this [Act] is to restore and maintain the chemical, physical, and 

biological integrity of the Nation’s waters. In order to achieve this objective it is 

hereby declared that . . . 

44 

(1) it is the national goal that the discharge of pollutants into navigable waters 

be eliminated by 1985; 

(2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife 

and provides for recreation in and on water be achieved by July 1, 1983; 

(3) it is the national policy that the discharge of toxic pollutants in toxic amounts 

be prohibited. . . . 

33 U.S.C. 1251(a). 

Although Congress wanted to go beyond the 1871 definition of navigability, Congress was clear that the Act was anchored by the concept of navigability. Congress 

intended that there be a dividing line between what was navigable and what was 

not and some areas were to be outside Corps jurisdiction. Much of the congressional 

debate focused on identifying that dividing line. 

1. The Committee Reports 

The Senate Committee Report explained congressional intent regarding the Act’s 

jurisdictional reach as follows: 

The control strategy extends to navigable waters. The definition of this term 

means the navigable waters of the United States, portions thereof, tributaries thereof, and includes the territorial seas and the Great Lakes. . . . Water moves in 

hydrological cycles and it is essential that the discharge of pollutants be controlled 

at the source. Therefore, reference to the control requirements must be made to the 

navigable waters, portions thereof, and their tributaries. 

S. Rep. No. 414, 92d Cong., 2d Sess., 77 (1972), reprinted in A Legislative History 

of the Water Pollution Control Act Amendments of 1972 (‘‘Legislative History’’), Volume II, at 1495. The Senate wanted to extend the concept of navigability as far as 

the tributaries of navigable waters which could contribute harmful pollutants to 

navigable rivers and streams. 

Like the Senate, the House grounded the Act’s jurisdictional reach in the concept 

of ‘‘navigable waters.’’ The House also sought to go beyond the 1871 definition but, 

like the Senate, stopped short of saying all waters were jurisdictional. The House 

Committee Report stated: 

One term that the Committee was reluctant to define was the term ‘‘navigable 

waters.’’ The reluctance was based on the fear that any interpretation would be read 

too narrowly. However, this is not the Committee’s intent. The Committee fully intends that the term ‘‘navigable waters’’ be given the broadest possible constitutional 

interpretation. . . . 

H. Rept. No. 911, 92d Cong., 2d Sess., 137 (1972), reprinted in Legislative History, 

Volume II, at 818. 

The tension between not wanting to be restricted by the 1871 definition of navigability, not being overbroad, but addressing the policy issue of water pollution is reflected in these reports. Congress did not need to be so vague if Congress wanted 

to ignore the concept, and limits, of navigability. Simple words would have sufficed 

to achieve that end. Instead, Congress stayed with the historical concept of navigability but sought through the explanation of congressional intent to extend its scope 

to include waters, such as non-navigable tributaries, which could contribute pollutants to traditionally navigable waters. 

2. The floor Debate 

The floor debates reflect the same tension in finding the dividing line between 

what is included in the Clean Water Act and what is not. In discussing the Conference Report, Senator Muskie, the floor manager for the Conference Report and 

one of the conferees, stated: 

One matter of importance throughout the legislation is the meaning of the term 

‘‘navigable waters of the United States.’’ 

The conference agreement does not define the term. The Conferees fully intend 

that the term ‘‘navigable waters’’ be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may 

be made for administrative purposes. 

Based on the history of consideration of this legislation, it is obvious that its provisions and the extent of application should be construed broadly. It is intended that 

the term ‘‘navigable waters’’ include all water bodies, such as lakes, streams, and 

rivers, regarded as public navigable waters in law which are navigable in fact. It 

is further intended that such waters shall be considered to be navigable in fact 

when they form, in their ordinary condition by themselves or by uniting with other 

waters or other systems of transportation, such as highways or railroads, a continuing highway over which commerce is or may be carried on with other States or 

with foreign countries in the customary means of trade and travel in which comVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
45 

5 The Montello, 87 U.S. (20 Wall.) 430 (1874) (navigable waters to include all waters capable 

of use for waterborne commerce); Economy Light & Power Company v. United States, 256 U.S. 

113 (1920) (all waters that had been previously used for waterborne interState commerce); 

United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940) (all waterways that could 

be made navigable ‘‘with reasonable improvements’’); Utah v. United States, 403 U.S. 9 (1971) 

(all waters that serve as a link in the chain of commerce in any states, a chain that could inContinued 

merce is conducted today. In such cases the commerce on such waters would have 

a substantial economic effect on interState commerce. 

Legislative History, Volume I, at 178. Thus, previous agency determinations of 

navigability ‘‘made for administrative purposes’’ which had excluded non-navigable 

tributaries were not to be used. Instead, the Act’s jurisdictional reach was to be 

grounded in the concept of navigation modified so as to include connected tributaries 

and other waterways such as intraState lakes which were part of the interState 

‘‘highway over which commerce is or may be carried. . . .’’ Id. 

Congressman Dingell, the floor manager in the House and also a conferee, gave 

a similarly detailed discussion of the intended meaning of the term ‘‘navigable waters’’ during House consideration of the Conference Report. Congressman Dingell 

stated: 

The conference bill defines the term ‘‘navigable waters’’ broadly for water quality 

purposes. It means all ‘‘the waters of the United States’’ in a geographical sense. 

It does not mean ‘‘navigable waters of the United States’’ in the technical sense as 

we sometimes see in some laws. 

The new and broader definition is in line with more recent judicial opinions which 

have substantially expanded that limited view of navigability derived from the Daniel Ball case (77 U.S. 557, 563)—to include waterways which would be ‘‘susceptible 

of being used with reasonable improvement,’’ as well as those waterways which include sections presently obstructed by falls, rapids, sand bars, currents, floating debris, et cetera, United States v. Utah, 283 U.S. 64 (1931); United States v. Appalachian Electric Power Co., 311 U.S. 377, 407-410, 416, (1940); Wisconsin Public 

Service Corp. v. Federal Power Commission, 147 F.2d 743 (CA 7, 1945); cert. denied, 

325 U.S. 880; Wisconsin v. Federal Power Commission, 214 F.2d 334 (CA 7, 1954) 

cert. denied, 348 U.S. 883 (1954); Namekagon Hydro Co. v. Federal Power Commission, 216 F.2d 509 (CA 7, 1954); Puente de Reynos, S.A. v. city of McAllen, 357 F.2d 

43, 50-51 (CA 5, 1966); Rochester Gas and Electric Corp. v. Federal Power Commission, 344 F.2d 594 (CA 2, 1965); The Montello, 87 U.S. (20 Wall.) 430, 441-42 (1874); 

Economy Light & Power v. United States, 256 U.S. 113 (1921). 

The U.S. Constitution contains no mention of navigable waters. The authority of 

Congress over navigable waters is based on the Constitution’s grant to Congress of 

‘‘Power To regulate commerce with Foreign Nations and among the several states’’ 

(art. I, sec. 8, clause 3). Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). Although 

most interState commerce 150 years ago was accomplished on waterways, there is 

no requirement in the Constitution that the waterway must cross a State boundary 

in order to be within the interState commerce power of the Federal Government. 

Rather, it is enough that the waterway serves as a link in the chain of commerce 

among the States as it flows in the various channels of transportation—highways, 

railroads, air traffic, radio and postal communication, waterways, et cetera. The 

‘‘gist of the Federal test’’ is the waterway’s use ‘‘as a highway,’’ not whether it is 

‘‘part of a navigable interState or international commercial highway.’’ Utah v. 

United States, 403 U.S. 9, 11 (1971); U.S. v. Underwood, 4 ERC 1305, 1309 (D.C., 

MD Fla., Tampa Div., June 8, 1972). 

Thus, this new definition clearly encompasses all water bodies, including main 

streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by the Corps of Engineers, going to 

govern matters covered by this bill. 

Legislative History, Volume I, at 250. 

Like Senator Muskie, Congressman Dingell did not want to be bound by the traditional ‘‘narrow definitions of navigability’’ which excluded tributaries and waters 

which were no longer navigable because of obstructions. Like his Senate counterpart, Congressman Dingell wanted to reach waters serving ‘‘as a highway.’’ Id. In 

fact, a review of the cases cited by Congressman Dingell as demonstrating the proper scope of the term ‘‘navigable waters’’ reveals that each involved a body of water 

that was used or could be used as a ‘‘link in the chain of commerce among the 

States.’’ Id. Each case involved actual navigation, past, present or future, and most 

of the cases focused on waters that once were navigable for waterborne commerce 

but were no longer because of obstructions.5 The Act was to be anchored in the concept of navigation for commerce. 

46 

clude other modes of commerce as well); United States v. Utah, 283 U.S. 64 (1931) (absence of 

waterborne commerce was not determinative of navigability if the river would be used for transport if obstructions were removed); Wisconsin Public Service Corp. v. Federal Power Commission, 147 F.2d 743 (7th Cir. 1945), cert. denied, 325 U.S. 880 (1945) (river that was used to float 

logs is navigable even if otherwise obstructed by falling rapids and sandbars); Wisconsin v. Federal Power Commission, 214 F.2d 334 (7th Cir. 1954), cert. denied, 348 U.S. 883 (1954) (damming a river which could still be used for transport does not make the river non-navigable); 

Namekagon Hydro Co. v. Federal Power Commission, 216 F.2d 509 (7th Cir. 1954) (river a navigable water citing Wisconsin v. Federal Power Commission); Puente de Reynosa, S.A. v. city of 

McAllen, 357 F.2d 43 (5th Cir. 1966) (prior actual navigation raises a presumption of potential 

navigation with reasonable improvements); Rochester Gas and Electric Corp. v. Federal Power 

Commission, 344 F.2d 594 (2d Cir. 1965), cert. denied, 382 U.S. 832 (1965) (previously navigable 

river should still be so considered if it could be used for navigation in the future with reasonable 

improvements); United States v. Underwood, 344 F. Supp. 486 (M.D. Fla. 1972) (waterway 

which can be made available for navigation by reasonable improvement is navigable.) 

The legislative history of the Clean Water Act in 1972 does not indicate that the 

Act was intended to reach all waters of the United States divorced from the concept 

of navigability. Rather, the jurisdictional reach of the Act was based on the concept 

of navigability, in Congressman Dingell’s words, ‘‘as it flows in the various channels 

of transportation.’’ Id. 

In considering congressional intent, the Corps has recognized the limiting effect 

of navigability stating the Act does not cover all wet areas. See, e.g., 45 Fed. Reg. 

33290, 33398 (1980) (‘‘small, isolated wet areas may not be waters of the United 

States. . . . Including an ‘exemption’ for such areas might create the erroneous impression that, but for the exception . . . each puddle and damp spot would need a 

permit. . . .’’); Memorandum in Support of Federal Defendants’ Motion to Dismiss 

or in the Alternative for Summary Judgment and in Opposition to Plaintiffs’ Motion 

for Partial Summary Judgment at 50, National Wildlife Federation v. Laubscher, 

662 F. Supp. 548 (S.D. Tex. 1987) (No. G–86–37) (‘‘Congress did not automatically 

include every waterbody, however isolated, within the coverage of the Act.’’). Similarly, a detailed review of the 1972 legislative history conducted by the Justice Department revealed no statement or comment to the effect that the Clean Water Act 

was intended to reach waters unconnected to waterborne commerce and the preservation of water quality. Respondent’s [EPA] Petition for Rehearing and En Banc Reconsideration, Hoffman Homes, Inc. v. Environmental Protection Agency, 975 F.2d 

1554 (7th Cir. 1992). 

B. The Corps’ Interpretation of congressional Intent and the 1977 Amendments 

to the Clean Water Act 

As noted above, subsequent to passage of the Act in 1972, the Corps defined the 

term ‘‘navigable waters’’ to essentially parallel the Supreme Court’s 1871 definition. 

This regulation was challenged and the court held Congress did not intend the term 

‘‘navigable waters’’ to be ‘‘limited to the traditional tests of navigability.’’ Natural 

Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975). 

The Corps was ordered to publish new regulations. 

In response, the Corps issued interim final regulations that covered: 

(1) all navigable coastal waters; 

(2) all coastal wetlands, mudflats, swamps and similar areas that are contiguous 

or adjacent to other navigable waters; 

(3) rivers, lakes, streams and artificial water bodies that are navigable; 

(4) artificially created channels and canals used for recreation or navigation that 

are connected to navigable waters; 

(5) tributaries of navigable waters; 

(6) interState waters; 

(7) intraState lakes, rivers and streams used (a) by interState travelers, (b) for 

removal of fish sold in interState commerce, (c) for industrial purposes by industries 

in interState commerce, and (d) in the production of agricultural commodities sold 

in interState commerce; 

(8) freshwater wetlands contiguous or adjacent to other navigable waters; and 

(9) other waters necessary for the protection of water quality such as intermittent 

rivers, streams, tributaries and perched wetlands that are not contiguous or adjacent to navigable waters. 

40 Fed. Reg. 31321, 31324 (1975). 

These regulations generated a firestorm of comment. Immediately, efforts were 

made in the Congress to restrict the Corps’ jurisdiction under the new regulations. 

On June 3, 1976, the House passed the Wright Amendment restricting the Corps’ 

jurisdiction to traditionally navigable waters and adjacent wetlands. 122 Cong. Rec. 

47 

6 The Wright Amendment to H.R. 9560 provided: The term ‘‘navigable waters’’ . . . shall 

mean all waters which are presently used, or are susceptible to use in their natural condition 

or by reasonable improvement as a means to transport interState or foreign commerce. . . . 122 

Cong. Rec. 16552 (1976). The Wright Amendment also defined the term ‘‘adjacent wetlands’’ as 

wetlands adjacent or contiguous to navigable waters. Id. 7 The Baker-Randolph Amendment provided: 

16565 (1976).6 The Senate passed S. 2710 which included the Baker-Randolph 

Amendment that defined the term ‘‘navigable waters’’ to restrict the Corps.7 The 

two bills had numerous provisions and the two chambers were unable to resolve 

their differences before Congress adjourned. However, as to the term ‘‘navigable waters,’’ the House and the Senate were of one mind. The Corps was to be restricted 

to waters that had been, were, or could be used for navigation to transport commerce and to adjacent wetlands. The Corps’ efforts to reach beyond these limits 

were rejected. 

[T]he jurisdiction of the Secretary of the Army shall be limited to those portions 

of the navigable waters (1) that are subject to the ebb and flow of the tide shoreward to their mean high water mark (mean higher high mark on the Pacific coast), 

and (2) that have been used, are now used, or are susceptible to use as a means 

to transport interState commerce, up to the head of their navigation, and (3) that 

are contiguous or adjacent wetlands, marshes, shallows, swamps, mudflats, and 

similar areas. 

122 Cong. Rec. 28778 (1976). 

In the next Congress, the House passed H.R. 3199, the Federal Water Pollution 

Control Act Amendments of 1977, with a provision defining the term navigable waters that was identical to the Wright Amendment from the previous Congress. 123 

Cong. Rec. 10434 (1977). S. 1952, introduced by Senator Muskie, did not change the 

definition of ‘‘navigable waters’’ but did exempt from Section 404 certain activities 

such as normal farming, ranching, and silviculture. 

Although the Senate bill did not change the definition of ‘‘navigable waters,’’ the 

debate makes it clear that no one supported the Corps’ expanded definition of its 

jurisdiction. Senator Muskie stated: 

[N]o Member of the Senate, so far as I know, defends Section 404. The Senator 

knows that I vigorously opposed the interpretation of Section 404 which the Corps 

of Engineers undertook to implement. . . . So the contest is really not between 

those who defend Section 404 and those who object to it but rather it is a competition between different methods of dealing with the problems created by the Corps’ 

interpretation of Section 404. 

A Legislative History of the Clean Water Act of 1977, A Continuation of the Legislative History of the Federal Water Pollution Control Act (1978) (also the ‘‘Legislative History’’), Volume IV, at 903. 

Senator Bentsen replied: 

I would say to the Senator from Maine that I think that is a fair statement. . . . We are left with a scope of jurisdiction as defined by the courts, a jurisdiction that 

runs counter to the original intent of the legislation as passed by Congress. 

Id. at 903. 

Senator Domenici stated: 

I think we have an opportunity here in the Senate to undo something that has 

grown up that we really never intended, and not to continue to ignore the fact that 

we never intended under Section 404 that the Corps of Engineers be involved in the 

daily lives of our farmers, realtors, people involved in forestry, anyone that is moving a little bit of earth anywhere in this country that might have an impact on navigable streams. We just did not intend that. 

Id. at 924. 

Senator Tower stated: 

[L]ast year, as in this session of the 95th Congress, I introduced an amendment 

aimed at diminishing the control which the Corps of Engineers has acquired 

through judicial interpretation in the courts. . . . It is imperative that we make 

clear the terminology and bring it in line with the original intent of navigable waters. 

Id. at 930. 

Senator Dole stated: 

[I]t is the mechanism and the extent of jurisdiction reflected in the administration 

of Section 404 that has been justifiably challenged. It is time that congressional intent is clarified. 

Id. at 935. 

Senator Hansen stated: 

48 

8 The Senate Committee Report stated: 

It is my belief that the adoption of this amendment would return the Federal 

Water Pollution Control Act to the State originally intended by Members of this 

Congress when the matter came before us in 1972. 

Id. at 940. 

Senator Muskie summed it up stating: 

There is not a Senator on the floor, including the Senator who is speaking, who 

supports Section 404 as it has been interpreted and implemented by the Corps of 

Engineers. . . . Now, what the committee bill does is very simple. It undertakes to 

continue the Corps’ traditional jurisdiction exercised since the Refuse Act of 1899 

and before. 

It was under that jurisdiction that the Corps for all these decades has policed and 

monitored and approved dredging in the waterways of our country and disposed of 

the dredged spoil wherever it chose without any consideration for the environmental 

values concerned or the damage that was done because of that insensitivity. 

For the purpose of disciplining the Corps in that respect, Section 404 was enacted 

into law in 1972. The Corps proceeded to take that section and, by its interpretation, expand it far beyond any intent of the Congress so that it found itself threatening regulation in areas of the country which the Corps had never imagined it had 

any jurisdiction over. 

Id. at 947–948. 

All this over a regulation which clearly reached isolated waters such as intermittent rivers, streams, tributaries and perched wetlands only if it was necessary to 

protect ‘‘water quality.’’8

The objective of the 1972 Act is to protect the physical, chemical, and biological 

integrity of the Nation’s waters. Restriction of jurisdiction to those relatively few 

waterways that are used or are susceptible to use for navigation would render this 

purpose impossible to achieve. Discharges of dredged or fill material into lakes and 

tributaries of these waters can physically disrupt the chemical and biological integrity of the Nation’s waters and adversely affect their quality. The presence of toxic 

pollutants in these materials compounds this pollution problem and further dictates 

that the adverse effects of such materials must be addressed where the material is 

first discharged into the Nation’s waters. 

S. Rep. No. 370, 95th Cong., 1st Sess., 75 (1977), reprinted in Legislative History, 

Volume IV, at 708. The Report went on to delineate areas that were not intended 

to be covered by the Clean Water Act stating: 

These specified activities should have no serious adverse impact on water quality. . . . 

Id. at 710. 

The concern was to cover waters affecting water quality, not every wet area. 

The July 25, 1975 interim final regulations that were the target of this congressional attention were replaced by final regulations on July 19, 1977 which went 

even farther than the interim final regulations. 42 Fed. Reg. 37122 (1977). The final 

regulations, which parallel today’s regulations, stated the Clean Water Act would 

reach navigable waters, their tributaries, adjacent wetlands and: 

All other waters of the United States . . . such as isolated wetlands and lakes, 

intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interState waters or to navigable waters of the United States, the 

degradation or destruction of which could affect interState commerce. 

42 Fed. Reg. 37144. 

In the face of the overwhelming congressional sentiment to reject the less expansive interim final regulations, it does not seem logical to argue that Congress embraced the more expansive final regulations that were published in the later stages 

49 

9 An exhaustive search of the 1977 legislative history by the Justice Department produced 

only three ‘‘supporting’’ quotes. Senator Bentsen, who introduced an amendment to narrow the 

definition of navigable waters, complained that the Corps’ regulation would cover ‘‘isolated 

marshes.’’ 123 Cong. Rec. 26711 (1977). Senator Tower, who supported the Bentsen amendment, 

objected to the Corps’ regulatory scheme because it covered ‘‘all surface waters and wetlands 

of the United States.’’ Legislative History, Volume IV, at 930. Finally, Congressman Abnor stated that the Corps’ regulatory program covered ‘‘virtually all wetlands.’’ 123 Cong. Rec. 34852 

(1977). Respondent’s [EPA’s] Petition for Rehearing and Suggestion of En Banc Reconsideration, 

Hoffman Homes, Inc. v. Environmental Protection Agency, 975 F.2d 1554 (7th Cir. 1992). 

These quotes appear to establish that Congress understood the potential reach of the new regulations and, as Senator Muskie made clear, rejected it. The debate was not over whether to reject the Corps’ new definition of its jurisdiction, but how to reject it. The government’s reliance 

on Congressman Abnor’s statement is interesting in that the Congressman’s statement was inserted into the congressional Record as an Extension of Remarks sandwiched between Congressman Lundine’s financial disclosure and Congressman Michel’s reprinting of an article in the Peoria Journal Star on race discrimination. 10 See SWANCC, 531 U.S. at 170, ‘‘We conclude that the [Corps has] failed to make the necessary showing that . . . demonstrates Congress’ acquiescence to the Corps’ regulations or to 

the ‘Migratory Bird Rule,’ which, of course, did not first appear until 1986.’’ 11 The Soil Conservation Service was renamed the Natural Resources Conservation Service 

in October 1994. 12 Hydrophytic plants are able to live in water, or in soil that is often saturated or low in 

oxygen. Hydric soils are formed when saturation occurs long enough to cause anaerobic (no oxygen) conditions. Hydrology is the pattern of flooding or saturation. 

of the 1977 congressional debate.9 Nor does it seem logical to argue that in 1977 

Congress embraced the Migratory Bird Rule which was announced in 1986.10

IV. THE WETLANDS DELINEATION MANUALS

Not only has the regulatory definition of what constitutes a ‘‘navigable water’’ 

changed over time, but the definition of what constitutes a wetland has changed. 

Prior to 1989, the four Federal agencies involved in wetlands protection (Corps, 

EPA, Fish and Wildlife Service, and Soil Conservation Service11) had separate procedures and methodologies for delineating wetlands. To reconcile these differences, 

a 12-member committee of experts was appointed in 1988. The result was the 1989 

Federal Manual for Identifying and Delineating Jurisdictional Wetlands. Michael S. 

Nagy; The Definition of ‘‘Wetlands’’ Under Section 404 of the Clean Water Act; Past, 

Present, and Future; 3 Journal of Environmental Law, 1993. 

The 1989 manual replaced the Corps’ 1987 Wetlands Delineation Manual as well 

as the delineation manuals used by other agencies. The Corps’ 1987 manual had utilized a three-part test requiring the presence of hydrophytic vegetation, hydric soils, 

and wetlands hydrology.12 The 1989 manual provided that jurisdictional wetlands 

existed if only two of the three elements were present. The 1989 manual specified 

that all three standards had to be met, but it permitted agencies to infer the presence of one standard based on the presence of the other two. 

After the 1989 manual was published, controversy erupted based on the fact that 

significant amounts of acreage that had not been jurisdictional under the 1987 manual would suddenly become so. This controversy resulted in proposed changes to the 

1989 manual which culminated in a 1991 manual for delineating wetlands. Like the 

1989 manual, the 1991 manual affected the areas which would now be jurisdictional. One analysis suggested that applying the 1991 manual in Virginia would 

have resulted in 59 percent of previously identified wetlands in the State no longer 

being jurisdictional. W. R. Walker and S. C. Richardson; The Federal Wetlands 

Manual: Swamped by Controversy, Virginia Water Resources Research Center; Special Report No. 24; October 1991. Congress finally resolved the controversy with the 

passage of the Energy and Water Development Appropriations Act of 1993 containing a provision requiring the use of the Corps’ 1987 manual. 

My point is not to debate the relative merits of each delineation manual. The 

point is that experts can, did, and do disagree about what constitutes a wetland. 

The unexpert public is left confused. Even today, using the same delineation manual 

and the same Clean Water Act regulations, an area might be seen as jurisdictional 

in one Corps District Office and not jurisdictional in another. 

V. APPLICATION OF EXISTING STANDARDS BY CORPS DISTRICT

OFFICES VARIES BY OFFICE

Within the Corps’ 38 District Offices, there are significant differences of interpretation regarding what areas are jurisdictional under the Clean Water Act. In 1994, 

the General Accounting Office conducted a survey of numerous Corps District OfVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
50 

fices. That report, ‘‘Waters and Wetlands: Corps of Engineers Needs to Evaluate Its 

District Office Practices in Determining Jurisdiction,’’ GAO-04-297 (Feb. 2004) 

(‘‘GAO Report’’), found the following. 

• Some District Office generally regulate all wetlands simply because they are 

located in the 100 year floodplain. Other District Offices do not use the 100 year 

floodplain as a jurisdictional basis. Still other District Offices consider locations 

within the 100 year floodplain as only one of many factors to be considered. 

• Some District Offices use sheet flow (overland flow of water outside of a defined 

channel) as a basis for regulating an associated wetland because of a hydrological 

connection to the sheet flow. Other District Offices do not consider sheet flow between a wetland and a water when making jurisdictional determinations. 

• Some District Offices regulate almost all wetlands located within 200 feet of 

other waters of the United States and generally do not assert jurisdiction beyond 

that distance. Other District Offices employ a 500 foot standard. 

• Some District Offices assert jurisdiction over wetlands separated from other 

waters of the United States by manmade or natural barriers such as dikes and 

dunes provided that the separation is caused by no more than one such barrier. 

Other District Offices assert jurisdiction over wetlands separated from waters of the 

United States by more than one barrier. Still others regulate all wetlands within 

200 feet of other waters of the United States regardless of the number of barriers 

separating the waters and the wetlands. 

• An official in one District Office told GAO that if that official asked three different district staff to make a jurisdictional determination based on the lateral reach 

of waters of the United States using the ordinary high water mark standard, he 

would probably get three different decisions on what areas are subject to Clean 

Water Act jurisdiction. 

• Some District Offices were fairly inclusive in finding a wetland jurisdictional 

if water flowed in a manmade surface conveyance between the wetland and a water 

of the United States. Other District Offices said that mere conveyance was insufficient and the ditch or channel must also have an ordinary high water mark or display wetlands characteristics. Still another District Office addresses which direction 

a water is flowing asserting that jurisdiction follows if the water flows from the wetland into a water of the United States. However, if the flow went from the water 

of the United States to the ditch into the wetland, the wetland would not be considered jurisdictional. 

• With respect to whether the ditch itself is jurisdictional, some Districts assert 

jurisdiction over a ditch whenever it creates a connection between a wetland and 

a water of the United States. Other Districts indicated such a ditch might or might 

not be jurisdictional depending on factors such as whether the ditch had an ordinary 

high water mark, exhibits the three parameters of a wetland, or replaces a historic 

stream. For this second group of District Offices, a non-jurisdictional ditch could be 

filled without a Section 404 permit, thus severing the jurisdictional connection between the wetland and a water in the United States. Significantly, once that connection is severed, the previously jurisdictional wetland is rendered non-jurisdictional 

and can be filled without a Section 404 permit. 

• Some District Offices use drain tiles (porous clay pipes buried below the surface to provide drainage) to establish a jurisdictional connection between a wetland 

and a water of the United States when the drain tiles replace a historic tributary. 

Other District Offices do not consider drain tiles to establish jurisdictional connections. 

• Some District Offices considered storm drain systems as jurisdictional connections particularly when the storm drain system conveys the flow of a historic 

stream. Other District Offices used storm drain connections to establish jurisdiction 

even if those storm drain connections do not replace a historic tributary. 

GAO Report at 17–26. 

Notwithstanding the fact that every Corps office is bound by the same set of Federal regulations, the facts are that those regulations are interpreted differently in 

the various Corps regions, leaving the public subject to varying standards. Significantly, the public is often not apprised of the standards used by the Corps to determine jurisdiction. Specifically, of the 16 District Offices surveyed by GAO, only three 

had developed written documentation of their practices that they made available to 

the public. According to GAO: ‘‘The other 13 districts that we reviewed have not 

made documentation of their practices publicly available.’’ GAO Report at 27. 

51 

13 Letter to Daniel P. Dietzler, Patrick Engineering, Inc., from James E. Evans, Chief, Construction Operations Division, Chicago District, Corps of Engineers, April 17, 1986. 14 Letter to Daniel P. Dietzler, Patrick Engineering, Inc., from James E. Evans, Chief, Construction Operations Division, Chicago District, Corps of Engineers, May 4, 1986. 15 Letter to Tom Slowinski, Regulatory Functions Branch, Chicago District, Corps of Engineers, from Brian D. Anderson, INPC, July 8, 1987. 

VI. THE SWANCC PROJECT AND THE CORPS’ 

JURISDICTIONAL DETERMINATION

It is within this regulatory milieu that the SWANCC case arose. However, before 

proceeding to the case itself, it may be helpful to review certain facts. 

SWANCC was comprised of 23 suburban Chicago towns and villages. In compliance with Illinois law requiring communities to develop solid waste management 

plans, SWANCC developed a management plan for the disposal of non-hazardous 

solid waste for the 700,000 people in its member communities. Although the Corps 

ultimately rejected SWANCC’s section 404 permit application, the Corps characterized SWANCC’s solid waste management proposal as ‘‘an admirable plan’’ to manage waste for 20 years by emphasizing waste via reduction, recycling, and 

composting. 

To accomplish this plan, SWANCC purchased a 533-acre site straddling Cook and 

Kane Counties to create a balefill a landfill where baled, rather than loose, waste 

is dumped. SWANCC proposed to use 410 acres in Cook County for the balefill. 298 

of those acres had been used for sand and gravel strip mining from the 1930’s to 

the 1950’s. This strip mining left alternating linear spoil ridges and excavation 

trenches across the property. Some of the trenches and depressions left by the strip 

mining formed seasonal and sometimes permanent ponds. The ponds were isolated 

and the Corps never suggested the existence of any hydrological connection to any 

navigable lakes, rivers, or streams. 

Prior to becoming involved in the section 404 process, SWANCC had obtained approval from the Cook County Zoning Board of Appeals in 1987 for the balefill 

project. After conducting ten public hearings and compiling what was determined 

to be the largest record of proceedings in its history, the Zoning Board recommended 

approval of the permit and the Cook County Board of Commissioners approved the 

permit by a 75 percent vote. 

SWANCC also had the required State approvals. SWANCC had submitted a 1700- 

page application for the requisite permits under Illinois law and, in November 1989, 

the Illinois EPA approved a development permit for SWANCC. Subsequently the Illinois Department of Conservation reviewed SWANCC’s plans and reported that any 

adverse impacts on State species would be mitigated through implementation of 

SWANCC’s mitigation plan. 

The uncertainty faced by the public regarding what are jurisdictional waters 

under the Clean Water Act was graphically demonstrated when SWANCC entered 

the Federal arena. Prior to the time the Corps asserted jurisdiction over SWANCC’s 

site, SWANCC had twice asked the Corps if there were any Clean Water Act jurisdictional waters on the site. In response to SWANCC’s first inquiry, the Corps advised SWANCC on April 17, 1986: ‘‘[T]he . . . site is not subject to our regulatory 

authority. . . .’’13 To be absolutely certain there were no CWA permitting issues 

SWANCC asked again. On March 4, 1987, the Corps again reaffirmed its lack of 

jurisdiction stating: ‘‘[T]he . . . site is not subject to our regulatory authority. . . .’’14

Four months later, on July 8, 1987, the Illinois Nature Preserves Commission 

(‘‘INPC’’) wrote the Corps stating that a brief visit to SWANCC’s 410 acre site by 

INPC staff ‘‘resulted in the observation of a number of migratory bird species. . . .’’15 The letter did not State whether the migratory birds were observed on 

the actual depressions to be filled or on the remaining 392.4 acres. The letter contained no discussion of whether the birds actually used the specific depressions to 

be filled versus the non-jurisdictional upland treed areas on the site. The letter was 

devoid of any discussion of whether the low lying depressions to be filled provided 

a necessary habitat for the birds. Nevertheless, the Corps wrote the INPC on November 16, 1987 stating: 

We have reviewed your letter and have determined that the water areas of the 

abandoned gravel pit do qualify as ‘‘waters of the United States’’ and are under our 

regulatory authority. . . . This determination is based on the following three criteria: 1/ that the proposed balefill site has been abandoned as a gravel pit; 2/ that 

the water areas and spoil piles have developed a natural character; and, 3/ that the 

52 

16 Letter to Brian D. Anderson, INPC, from Jess J. Franco, Jr., District Engineer, Chicago 

District, Corps of Engineers, November 16, 1987. It should also be noted that in three separate 

letters to SWANCC dated April 21, 1988; March 23, 1989; and March 20, 1990 the Corps confirmed the isolated waters on SWANCC’s property were not wetlands. 

water areas are used or could be used as habitat by migratory birds which cross 

State lines.16

Between July 8, 1987 and November 16, 1987, the Corps performed no surveys 

or analyses to determine if migratory birds actually used the 17.6 acres at issue 

versus the non-jurisdictional treed areas. In fact, the Corps never conducted any 

study to determine whether the birds used or even could use the 17.6 acres. Instead, 

relying exclusively on INPC’s representation that migratory birds were observed 

somewhere on the 410 acre property, the Corps asserted jurisdiction over 17.6 acres 

of low lying trenches and ruts on the site. The jurisdictional theory employed by the 

Corps was that the mere presence of birds somewhere on the 410 acre site was sufficient to give the Corps jurisdiction over the 17.6 acres of strip mined depressions 

to be filled. 

To say that SWANCC was confused by the Corps’ decisionmaking process would 

be something of an understatement. Nevertheless, because it had no choice, 

SWANCC submitted a section 404 permit application in February 1990. In July 

1994, the Corps denied the permit finding that the balefill was contrary to the public interest because it would break up a large contiguous forest which would cause 

unmitigatable impacts to birds species, SWANCC had not conclusively demonstrated 

that its proposal was the least environmentally damaging practicable alternative, 

and SWANCC had not demonstrated that its 23 municipal corporations had the capacity to finance in perpetuity long-term maintenance responsibilities and remediation should those problems arise. 

VII. THE SUPREME COURT’S SWANCC DECISION

The meaning of the Supreme Court’s ruling in SWANCC was, and has been, the 

subject of much debate. Many experts argued the SWANCC decision precluded the 

Corps from regulating isolated, intrastate, non-navigable waters. Others argued that 

the Court had only prohibited regulation of waters based exclusively on the Migratory Bird Rule. Although the second interpretation came to be that adopted by the 

Federal agencies and by many lower courts, it is interesting that Justice Kennedy 

in his concurring opinion and Justice Stevens, in his dissenting opinion in Rapanos 

v. United States, 126 S. Ct. 2208 (2006), interpreted SWANCC differently. Justice 

Kennedy stated: ‘‘In [SWANCC] the Court held, under the circumstances presented 

there, that to constitute ‘navigable waters’ under the Act, a water or wetland must 

possess a ‘significant nexus’ to waters that are or were navigable in fact or that 

could reasonably be made so.’’ Rapanos v. United States, 126 S. Ct. at 2236 (Kennedy, J., concurring). See also, id. at 2256, Stevens, J., dissenting: ‘‘[In SWANCC 

t]he Corps had asserted jurisdiction over the gravel pit under its 1986 Migratory 

Bird Rule . . . . The Court rejected this jurisdictional basis since these isolated 

pools . . . had no ‘significant nexus’ to traditionally navigable waters.’’ 

As noted earlier, some people have said that since the SWANCC decision there 

has been confusion about what areas are jurisdictional and, therefore, a return to 

the pre-SWANCC era will clarify matters. That may not be the case because, as the 

GAO Report documents, the regulatory definition of ‘‘waters of the United States’’ 

is subject to varying interpretations and at least some of those issues will remain 

even if we return to the pre-SWANCC era. However, it may be helpful to consider 

why these different approaches exist. Given that the Clean Water Act is 35 years 

old, one would think many of the issues identified by GAO would have been resolved 

by now. 

When GAO asked the Corps to explain the varying jurisdictional practices in different Corps districts, the Corps offered two explanations. The first was that local 

conditions within districts often require the use of different standards. The second 

reason given by the Corps according to GAO was that: because nearly all waters 

were jurisdictional under the migratory bird rule, questions regarding the imprecise 

definition of adjacent wetlands and isolated waters were previously moot. When the 

Supreme Court struck down the migratory bird rule in 2001, districts had to rely 

on the key terms and the regulatory definition of waters in the United States which 

had not been well defined. 

GAO Report at 26. The GAO Report states that both the Department of Defense 

and EPA ‘‘concurred with the report’s findings . . . .’’ Id. at 29. In short, and in 

GAO’s words, because of the Migratory Bird Rule ‘‘nearly all waters and wetlands 

in the United States were potentially jurisdictional’’ and, therefore, no other jurisVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
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dictional standard was really required. Id. at 8. Now, the Corps is grappling with 

the absence of the Migratory Bird Rule and is applying the regulations actually promulgated pursuant to the notice and comment procedures of the Administrative Procedure Act. 

VIII. CONSTITUTIONAL ISSUES IN SWANCC

Congress’ power under the Commerce Clause extends to ‘‘three broad categories 

of activity: (1) the use of the channels of interState commerce; (2) the instrumentalities of interState commerce, or persons or things in interState commerce; and (3) 

those activities having a substantial relation to interState commerce, i.e., those activities that substantially affect interState commerce. United States v. Morrison, 

529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549, 558-559 (1996). During 

the SWANCC Supreme Court litigation, the Corps conceded that the Migratory Bird 

Rule could only be sustained as an exercise of the third variety of regulatory power. 

During the SWANCC litigation, the government’s case regarding substantial effects on interState commerce was based on the cumulative effect that filling the isolated ponds on the SWANCC site would have on migratory bird habitat and on the 

ability people to pursue recreational and commercial activities associated with migratory birds. Although the Supreme Court has not adopted a categorical rule 

against cumulating the effects of an activity to find a substantial impact on interState commerce, it has emphasized that ‘‘thus far in our Nation’s history our cases 

have upheld Commerce Clause regulation of intraState conduct only where that activity is economic in nature.’’ Morrison, 529 U.S. at 613. The Migratory Bird Rule, 

however, prohibits activities that are not inherently economic or commercial. It applies equally to a private homeowner who plants a garden, landscapes the backyard, 

or fills in a damp patch to prevent mosquitoes, and to a commercial developer who 

bulldozes a marsh. Indeed, the Corps has taken the position that the Migratory Bird 

Rule regulates non-commercial ‘‘[a]ctivities such as walking, bicycling or driving a 

vehicle through a wetland’’ 58 Fed. Reg. 45008, 45020 (1993). Obviously, many of 

those activities are not commerce in the ordinary sense of that term. 

There is a second constitutional issue to consider. Recall that during the 

SWANCC litigation, the government asserted that filling the isolated ponds on the 

SWANCC site could reduce the population of migratory birds which could impede 

the hunting, trapping, and observation of birds’ activities for which people spend 

substantial sums and cross State lines, thereby impacting interState commerce. 

Given that approximately five billion birds migrate across North America each year 

and that migratory bird flyways cover the entire continental United States, this theory of jurisdiction would likely grant the Corps power over virtually every area of 

the United States. However, State and local control over land use is a well-established legal and constitutional principle. In United States v. Lopez, the Supreme 

Court noted that in considering the propriety of Federal jurisdiction under the Commerce Clause, one must also be cognizant of whether the exercise of Federal authority erodes the ‘‘distinction between what is truly national and what is truly local.’’ 

541 U.S. at 567. 

The Court did not reach any constitutional issues in the SWANCC decision and 

thus never opined on whether the links between the isolated ponds on SWANCC’s 

site and economic activity were sufficient or too attenuated to pass muster under 

the Commerce Clause. Nor did the Court opine on whether the ability of the Corps 

to use the Migratory Bird Rule to control project siting decisions would unconstitutionally impinge on land use and other authority reserved to the states. I recognize that distinguished scholars can and will disagree over these issues and a detailed exposition of these issues is not even attempted in this statement. However, 

it may be worth noting that in its decision in the SWANCC case, the Court did 

State there are ‘‘significant constitutional questions’’ raised by the application of the 

Migratory Bird Rule. SWANCC, 531 U.S. at 174. The Court went on to state: ‘‘Permitting [the Corps] to claim Federal jurisdiction over ponds and mudflats falling 

within the ‘Migratory Bird Rule’ would result in a significant impingement of the 

state’s traditional and primary power over land and water use. [Citations omitted.]’’ 

Id. 

IX. INTERPRETATION OF, AND REACTION TO, THE RAPANOS

AND CARABELL DECISIONS

I am sure the Committee has been fully briefed by the staff on the substance of 

the Supreme Court’s decision in Rapanos v. United States and I will not address 

that. Much of the post-Rapanos debate has focused on how the decision will be imVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
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plemented and what, if any, changes should be made to the existing definition of 

the term ‘‘navigable waters.’’ 

In considering definitional changes, it may be appropriate to begin by considering 

the statute’s purposes and the purpose of any amendment. In that regard, S. 1870 

is the successor to earlier proposals introduced soon after the SWANCC decision. A 

fundamental purpose of the legislation was to resurrect the Migratory Bird Rule and 

to apply Clean Water Act jurisdiction to waters such as those on SWANCC’s site. 

Please recall that SWANCC’s site was an abandoned strip mined gravel pit where 

water accumulated in the strip mine trenches. There was no connection between 

those isolated ruts and trenches and any navigable water or associated watershed. 

The only basis for Clean Water Act jurisdiction was to protect birds. Thus, a question which should be asked in considering amendments to the statute is whether 

the purpose of the Clean Water Act is to protect waters which are part of, and connected in some way to, a watershed, or whether the purpose of the Act is to protect 

migratory bird habitat even when there is no connection to the watershed. Depending on how one answers that question, the need for, and the structure of, any statutory changes may become clearer. 

I raise this issue for your consideration because if it is the wisdom of this Committee and the Congress to enact S. 1870, you should do so with the awareness that 

this bill will not simply return us to the pre-SWANCC era by reinstating the Migratory Bird Rule. S. 1870 will alter the jurisdictional reach of the Clean Water Act 

by deleting the term ‘‘navigable waters’’ in the Act and replacing it with a definition 

of the term ‘‘waters of the United States.’’ Such a change would be a fundamental 

departure from the original intent of the Congress detailed above which grounded 

the Act in the concept of navigability. In that regard, Supreme Court jurisprudence 

on the term ‘‘navigable waters’’ in the Clean Water Act indicates that the term ‘‘navigable waters’’ has a meaning that is less than all waters in the United States. As 

the Court noted in SWANCC: ‘‘it is one thing to give a word limited effect and quite 

another to give it no effect whatever. The term ‘navigable’ has at least the import 

of showing us what Congress had in mind as its authority for enacting the [Clean 

Water Act]: its traditional jurisdiction over waters that were or had been navigable 

in fact or which could be reasonably be so made. [Citations omitted].’’ SWANCC, 531 

U.S. at 172. By deleting the term ‘‘navigable waters’’ from the statute, the import 

of S. 1870 will be to reach all waters in the United States without any reference 

to navigability. 

That such a change in the Clean Water Act would cut a wide swath across America is seen in the description of the Clean Water Act nationwide Permits (‘‘NWP’’) 

recently reissued by the Corps. 72 Fed. Reg. 11092 (March 12, 2007). In approving 

each NWP, the Corps identified the types of activities covered. For example, NWP 

29 covers residential construction by individual homeowners; NWP 39 covers commercial and institutional development including fire stations, schools, churches, hospitals, and libraries; and NWP 42 addresses recreational activities such as soccer 

and baseball fields, bike paths, hiking trails, nature centers, and campgrounds. I am 

not suggesting that such activities cannot impact water quality. I am only indicating 

that many people view the Clean Water Act as only affecting developers when, in 

reality, it affects many other interests. It may be worth noting in this regard that 

it is estimated that 75 percent of United States wetlands are privately owned. Roy 

R. Carricker, Wetlands and Environmental Legislation Issues, Journal of Agriculture and Applied Economics 26(1), July 1994. 

If the intended result of S. 1870 is to reach all waters in the United States, Congress may also wish to consider whether there is merit to allowing the affected public to challenge jurisdictional decisions where individuals or entities feel Corps’ jurisdiction has been improperly exercised. Although the likelihood of success for such 

a challenge may be limited given the language of S. 1870 and the deference courts 

accord Federal agencies, the reality is that the courts have generally taken the position that they lack jurisdiction over the Corps’ jurisdictional determinations until 

an enforcement action is brought or a permit denied. See, e.g., Southern Pines 

Assoc. of the United States, 912 F.2d 713 (4th Cir. 1990); Hoffman Group v. Environmental Protection Agency, 902 F.2d 566 (7th Cir. 1990). Regardless of whether 

you agree or disagree with the decision in SWANCC, the facts are that SWANCC 

did not believe the Corps had properly asserted jurisdiction. However, because jurisdictional decisions cannot be challenged in court until after a permit has been denied or an enforcement action begun, SWANCC’s 23 municipalities were compelled 

to spend approximately $4.5 million going through the permit process before having 

any opportunity to challenge whether the Corps was properly requiring SWANCC 

to do so. As it turns out, under the law as interpreted by the Supreme Court, 

SWANCC’s municipalities were forced to spend $4.5 million applying for a permit 

which the Supreme Court said they did not need. 

55 

In this regard according to information contained in briefs filed before the Supreme Court in the Rapanos case, the average applicant for an individual permits 

spends 788 days to complete the permitting process and the mean cost is $271,596; 

while the average applicant for a nationwide permit spends 313 days and $28,915. 

These are only the process costs and exclude the costs of design changes and mitigation. Over $1.7 billion is spent each year by the public and private sectors in obtaining wetland permits. Rapanos, 126 S. Ct. at 2214, citing Sundling and Zilberman, 

The Economics of Environmental Regulation by Licensing: An Assessment of the 

Wetlands Permitting Process, 42 Natural Resources Journal 59, 74–76, 81 (2002). 

As a final matter, I should also note that S. 1870 will likely trigger a debate 

among constitutional scholars and, if enacted, may well result in a Supreme Court 

decision defining, as S. 1870 puts it, the ‘‘legislative power of Congress under the 

Constitution.’’ If Congress enacts S. 1870 as written it would not be surprising if 

some plaintiff raises the issue of the limits of Congress’ power under the Commerce 

Clause and the relationship between Congress’ power and those powers reserved to 

the states. I am not wise enough to predict what the Supreme Court might decide. 

But it is fair to say that any such decision may define Congress’ power not only with 

respect to the Clean Water Act but also with respect to every other statute for which 

the Commerce Clause is a constitutional foundation. 

X. CONCLUSION

I appreciate the opportunity to appear before you today and I hope my comments 

will be constructive in your deliberations. This Committee has many issues to consider. There is no doubt you will hear strongly held opinions, all supported by scholarly analyses. Sadly, because of the complexity of these issues, it may be that no 

matter what this Committee does, at the end of the day, we may find ourselves 

waiting for the next Supreme Court decision. 

RESPONSES BY GEORGE J. MANNINA TO ADDITIONAL QUESTIONS

FROM SENATOR BOXER

Question 1. You recently published an article titled, ‘‘Waters of the U.S.’: Definition Remains in Doubt After Supreme Court Ruling’’ in which you talk about the 

Supreme Court’s opinions in Rapanos/Carabell. You said that among the Rapanos/ 

Carabell opinions the ‘‘areas of agreement were few’’ and ‘‘most assuredly there will 

be more litigation.’’ In your written testimony for this hearing you say the opinions 

produced ‘‘uncertainty’’ and you describe the standards announced as ‘‘somewhat 

opaque.’’ 

• In your practice, (a) how does the uncertainty created by Rapanos/Carabell affect the advice you give your clients and other affected parties on Clean Water Act 

issues, and (b) how has this uncertainty played out in administrative and litigation 

proceedings that you have handled or observed? 

• I assume you agree that since SWANCC and Rapanos/Carabell, there are now 

many more opportunities for your clients and others to argue that the waters they 

are impacting, including wetlands, are not subject to Federal jurisdiction. What are 

the types of arguments under SWANCC and Rapanos/Carabell that you are seeing 

in your practice? 

Response. The article I wrote, referenced in your question, was written a few days 

after the Supreme Court issued its decision in Rapanos v. United States, notwithstanding the fact that the article was not published until almost 2 months later. 

It was in that article, not my written testimony, that I asserted the opinions produced uncertainty, and the standards were somewhat opaque. The uncertainty I 

identified immediately after the Court issued its decision existed on two levels. The 

first level of uncertainty was whether lower courts would adopt different interpretations of what jurisdictional standard to apply given the fact that no single opinion 

in the Rapanos decision commanded a majority. The second area of uncertainty was 

how the legal standard selected by the lower courts would be applied in fact specific 

situations. 

Since the Supreme Court’s decision in Rapanos, several district and appeals 

courts have wrestled with the question of the appropriate standard. As you know, 

most courts are gravitating toward Justice Kennedy’s significant nexus standard. 

Thus, that area of uncertainty which existed at the time the court issued the 

Rapanos decision appears to be diminishing. 

In considering whether the Rapanos decision created uncertainty regarding the 

application of the selected jurisdictional standard, it may be helpful to step back for 

perspective. Both the SWANCC and Rapanos decisions proceed from the assumpVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
56 

tion, based on the legislative history of the Clean Water Act, that not every wet area 

found in the United States is a water of the United States. This provides a new 

level of certainty regarding what is properly within the jurisdiction of the Clean 

Water Act. The result, particularly after the Rapanos decision and the general application of the significant nexus standard, has been that the Corps of Engineers and 

the public are now, with respect to waters that are not clearly jurisdictional, examining each circumstance to determine if there is a biological, chemical, or physical 

connection sufficient to satisfy the significant nexus test. These are fact-specific 

issues. Unless Congress amends the Clean Water Act to provide for jurisdiction over 

every wet area, the Corps will continue to make fact-specific determinations. It 

should also be noted that fact-specifications determinations are not a departure from 

past practice. Indeed, the Rapanos decision did not change this practice. Instead, 

Rapanos provided more guidance on the factors to be considered in making these 

determinations. 

The Corps of Engineers has long recognized that absent a standard in which every 

wet area is jurisdictional there may be some judgment regarding what is jurisdictional based on specific factual circumstances. Indeed, in 1980, the Corps specifically 

noted that the Clean Water Act does not make every wet area jurisdictional. 45 Fed. 

Reg. 33290, 33398 (1980) (‘‘small, isolated wet areas may not be waters of the 

United States. . . . Including an ‘exemption’ for such areas might create the erroneous impression that, but for the exception . . . each puddle and damp spot would 

need a permit. . . .’’ Similarly, the Corps of Engineers, through the Department of 

Justice, asserted in 1987 that ‘‘Congress did not automatically include every 

waterbody, however isolated, within the coverage of the [Clean Water Act].’’ Memorandum in Support of Federal Defendants’ Motion to Dismiss Or In The Alternative 

For Summary Judgment And In Opposition To The Plaintiffs’ Motion For Partial 

Summary Judgment, at 50, National Wildlife Federation v. Laubscher, 662 F. Supp. 

548 (S.D. Texas 1987). Thus, both SWANCC and Rapanos provided greater certainty 

in determinations regarding Clean Water Act jurisdiction by confirming that not 

every wet area is subject to jurisdiction under the Act and by providing further definition of the specific issues to be considered in making a jurisdictional determination. Since the Rapanos decision, there has been a more diligent effort to determine, 

for areas that are not clearly jurisdictional, whether the facts of a specific situation 

are sufficient to make the finding that an area has sufficient chemical, physical, or 

biological nexus to support a jurisdictional determination under the Clean Water 

Act. 

Question 2. The Clean Water Act prohibits discharges of toxic chemicals from industrial facilities such as chemical plants and oil refineries into our streams and 

rivers under what is commonly known as the ‘‘NPDES’’ program. 

• It is your opinion that the decisions in SWANCC and Rapanos/Carabell apply 

to the scope of waters protected under the NPDES program essentially the same 

way as those decisions apply to waters under the Section 404 program? 

• Under Rapanos/Carabell, if a chemical factory is located next to an isolated 

wetland or a stream that is only flowing at certain times of the year ands in either 

case, that water does not have a significant nexus to a traditional navigable water, 

is it your understanding of Rapanos/Carabell that a chemical factory could dump all 

of the toxic pollution it wants into those water bodies without any control under the 

Federal Clean Water Act? 

• Does it concern you that in many states there may be no legal constraints 

against polluting wetlands and intermittent streams under the Rapanos/Carabell 

decisions? 

Response. In responding to your question about the extent to which the Rapanos 

decision will or will not impact the NPDES program, it may be helpful to quote from 

the plurality opinion in Rapanos which stated: 

Respondents and their amici urge that such restrictions on the scope of ‘‘navigable 

waters’’ will frustrate enforcement against traditional water polluters under 33 

U.S.C. § § 1311 and 1342 because the same definition of ‘‘navigable waters’’ applies 

to the entire statute, respondents contend that water polluters will be able to evade 

the permitting requirements of § 1342(a) simply by discharging their pollutants into 

non-covered intermittent water courses that lie upstream of covered waters. See Tr. 

of Oral Arg. 74-75. 

That is not so. Though we do not decide this issue, there is no reason to suppose 

that our construction today significantly affects the enforcement of § 1342 inasmuch 

as lower courts applying § 1342 have not characterized intermittent channels as 

‘‘waters of the United States.’’ The Act does not forbid the ‘‘addition of any pollutant 

directly to navigable waters from any point source.’’ But rather the ‘‘addition of any 

pollutant to navigable waters.’’ § 1362(12)(A)(emphasis added); § 1311(a). . . . We 

57 

have held that the Act ‘‘makes plain that a point source need not be the original 

source of the pollutants; it need only convey the pollutant to ‘navigable waters’.’’ [Citations omitted.] 

Rapanos v. United States, 126 Sup. Ct. 2208, 2227 (2006). Given that the four dissenting Justices would have upheld Clean Water Act jurisdiction in each circumstance presented to the Court, it is likely that at least eight Justices would form 

a majority around the position taken by the plurality Justices quoted above. 

As to the precise example in your question, given the facts you set forth, it is likely that a significant nexus would be found given the volume and toxicity of the substances posited to exist. However, the policy issue is not limited to the example you 

present. Equally important is the issue of whether homeowners, schools, churches, 

libraries, and similar entities will be allowed to add a room to their house or build 

a school, church, or library if the project affects a small wet area which could be 

used by migratory birds given that one of the objectives of the legislation now pending before your Committee is to resurrect that rule. An example might be helpful. 

I am advised that a congregation of poor, African-Americans on Maryland’s Eastern 

Shore once sought to construct housing for members of its congregation living in 

sub-standard conditions. Miraculously, the church raised the $300,000 needed to 

pay for the construction. However, the church learned that part of the land on 

which it sought to construct the new housing contained wet areas considered to be 

jurisdictional under the Clean Water Act. The Corps, exercising its jurisdictional 

and permitting authority, found another parcel of land existed that could be used 

for the housing project. Unfortunately, that land cost $300,000, which would have 

consumed all the money raised for actual construction. Since $300,000 was the only 

money the church had available, the church abandoned the project. Members of the 

congregation who would have benefited from improved housing continued to live in 

sub-standard housing conditions. 

Finally, your question raises the issue of the legal restraints which may or may 

not exist pursuant to Section 404 of the Clean Water Act regarding jurisdiction over 

isolated waters of intermittent streams. The issue of legal constraints must begin 

with an analysis of the constitutional issues, a matter about which learned scholars 

will disagree. However, it might be helpful to review how the Commerce Clause 

issues were addressed in the SWANCC litigation. 

Congress’ power under the Commerce Clause extends to three broad categories of 

activity: (1) the use of the channels of interState commerce; (2) the instrumentalities 

of interState commerce, or persons or things in interState commerce; and (3) those 

activities having a substantial relation to interState commerce, i.e., those activities 

that substantially affect interState commerce. United States v. Morrison, 529 U.S. 

598 (2000); United States v. Lopez, 514 U.S. 549, 558–559 (1996). During the 

SWANCC Supreme Court litigation, the Corps conceded that the Migratory Bird 

Rule could only be sustained as an exercise of the third variety of regulatory power. 

During the SWANCC litigation, the government’s case regarding substantial effects on interState commerce was based on the cumulative effect that filling the isolated ponds on the SWANCC site would have on migratory bird habitat and on the 

ability people to pursue recreational and commercial activities associated with migratory birds. Although the Supreme Court has not adopted a categorical rule 

against cumulating the effects of an activity to find a substantial impact on interState commerce, it has emphasized that ‘‘thus far in our Nation’s history our cases 

have upheld Commerce Clause regulation of intraState conduct only where that activity is economic in nature.’’ Morrison, 529 U.S. at 613. The Migratory Bird Rule, 

however, prohibits activities that are not inherently economic or commercial. It applies equally to a private homeowner who plants a garden, landscapes the backyard, 

or fills in a damp patch to prevent mosquitoes, and to a commercial developer who 

bulldozes a marsh. Indeed, the Corps has taken the position that the Migratory Bird 

Rule regulates non-commercial ‘‘[a]ctivities such as walking, bicycling or driving a 

vehicle through a wetland.’’ 58 Fed. Reg. 45008, 45020 (1993). Those activities are 

not commerce in the ordinary sense of that term. 

It should also be recalled that during the SWANCC litigation, the government asserted that filling the isolated ponds on the SWANCC site could reduce the population of migratory birds which could impede the hunting, trapping, and observation 

of birds’ activities for which people spend substantial sums and cross State lines, 

thereby impacting interState commerce. Given that approximately five billion birds 

migrate across North America each year and that migratory bird flyways cover the 

entire continental United States, this theory of jurisdiction would likely grant the 

Corps power over virtually every area of the United States. However, State and 

local control over land use is a well-established legal and constitutional principle. 

In United States v. Lopez, the Supreme Court noted that in considering the propriety of Federal jurisdiction under the Commerce Clause, one must also be cogVerDate Aug 31 2005 14:31 Nov 18, 2013 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\73582.TXT VERN
58 

nizant of whether the exercise of Federal authority erodes the ‘‘distinction between 

what is truly national and what is truly local.’’ 541 U.S. at 567. 

The Court did not reach any of these constitutional issues in the SWANCC decision and thus never opined on whether the links between the isolated ponds on 

SWANCC’s site and economic activity were sufficient or too attenuated to pass muster under the Commerce Clause. Nor did the Court opine on whether the ability of 

the Corps to use the Migratory Bird Rule to control project siting decisions would 

unconstitutionally impinge on land use and other authority reserved to the states. 

I recognize that distinguished scholars can and will disagree over these issues. However, it may be worth noting that in its decision in the SWANCC case, the Supreme 

Court stated there are ‘‘significant constitutional questions’’ raised by the application of the Migratory Bird Rule. SWANCC, 531 U.S. at 174. The Court went on to 

state: ‘‘Permitting [the Corps] to claim Federal jurisdiction over ponds and mudflats 

falling within the ‘Migratory Bird Rule’ would result in a significant impingement 

of the state’s traditional and primary power over land and water use. [Citations 

omitted.]’’ Id. Thus, I believe the issue of legal restraints raised in your question 

will ultimately depend on a resolution of the constitutional issues. 

RESPONSES BY GEORGE J. MANNINA TO ADDITIONAL QUESTIONS

FROM SENATOR INHOFE

Question 1. You cite several excellent quotes from many of our former and a few 

of our current colleagues on the intent of Congress when it passed the Clean Water 

Act. The majority of members appear to be expressing concern that the Corps over 

reached on its authority in its 1975 regulations. What do these comments tell us 

about Congress’ intent with regard to navigability and the Commerce Clause? 

Response. The legislative history of the Clean Water Act documents that Congress 

wished to go beyond the traditional limits of navigability but did not wish to dispose 

of the concept of navigability and to place every wet area within the United States 

under the Clean Water Act. Congress intended to use a modified concept of navigability as the basis for Clean Water Act jurisdiction. 

Senator Muskie, in managing the Conference Report on the 1972 legislation, made 

it very clear that waters are to be considered navigable and, therefore, jurisdictional 

‘‘when they form, in their ordinary condition by themselves or by uniting with other 

waters or other systems of transportation, such as highways or railroads, a continuing highway over which commerce is or may be carried on with the states or 

with foreign countries. . . . In such cases, the commerce on such waters would have 

a substantial economic effect on interState commerce.’’ A Legislative History of the 

Water Pollution Control Act Amendments of 1972 (‘‘Legislative History’’), Vol. 1, at 

178. Congressman Dingell, the House floor manager of the Conference Report, similarly wished to reach waters serving ‘‘as a highway’’ for commerce. Id. at 250. Congressman Dingell went further by citing specific court decisions demonstrating the 

proper reach of the concept of navigation. Mr. Dingell stated these cases reveal that 

each body of water was one that was used or could be used as a ‘‘link in the chain 

of commerce among the states.’’ Id. Thus, the Clean Water Act was anchored in the 

concept of navigation for commerce. The jurisdictional reach of the Act was based 

on the concept of navigability, in Congressman Dingell’s words, ‘‘as it flows in the 

various channels of transportation.’’ Id. 

Question 2. The history you provide of SWANCC’s dealings with the Corps is very 

enlightening. You raise a very interesting point about SWANCC having spent $4.5 

million to find out from the U.S. Supreme Court that they did not need a permit. 

Importantly, that was taxpayer money for a plan that was approved by a 75 percent 

vote of the County Board of Commissioners. Would SWANCC have benefited from 

being able to challenge the Corps’ jurisdictional determination earlier in the process? 

Response. There is no question that SWANCC and the taxpayers of northern Cook 

County, Illinois would have benefited significantly from having the opportunity to 

challenge the jurisdictional determination of the Corps of Engineers before having 

to spend $4.5 million to apply for a permit which the Supreme Court determined 

the law did not require SWANCC to obtain. Simply put, under the current State 

of the law, the Corps of Engineers can make a jurisdictional determination and force 

private and public entities to spend millions of dollars to apply for a permit even 

when the Corps has no legal authority to require any such permit. Parties who do 

not believe the Corps is properly exercising jurisdiction should not be compelled to 

spend millions of dollars before they can find out whether the Corps had the authority to require a permit in the first place. 

59 

Senator BOXER. The last speaker is Mr. William Buzbee, Professor of Law, Director, Environmental and Natural Resources Law 

Program and a whole other lots of titles there, at Emory Law 

School. 

Welcome, sir. And the vote has started, so we will have to end 

this at about 25 of. 

STATEMENT OF WILLIAM W. BUZBEE, PROFESSOR OF LAW, DIRECTOR, ENVIRONMENTAL AND NATURAL RESOURCES LAW 

PROGRAM, EMORY LAW SCHOOL, DIRECTOR, CENTER ON 

FEDERALISM AND INTERSYSTEMIC GOVERNANCE 

Mr. BUZBEE. Thank you very much, Madam Chairman. And 

members of the Committee, I thank the Committee for this opportunity to testify. My name is Bill Buzbee. As was said, I am a Professor of Law at Emory University School of Law. 

In the Rapanos case, I served as co-counsel for a bipartisan 

group of former U.S. EPA administrators. My clients were aligned 

with the Bush administration, dozens of States and many environmental groups. We all joined in arguing that the Supreme Court 

should reject the major attack on the Clean Water Act presented 

by the Rapanos and Carabell challengers. We argued for maintaining longstanding protections of America’s waters. We met with only 

partial success in the Supreme Court’s ruling. 

The Supreme Court’s rulings in Rapanos and the earlier 2001 

SWANCC case unsettled a three decade long bipartisan consensus 

in all of the branches about what sorts of protections should be afforded to America’s waters. If you look closely at the decisions, neither decision required the agencies to forego protecting significant 

categories of water bodies. Nevertheless, the administrative and judicial fallout has been significant. There have been significant 

losses now of the sorts of waters protected. 

The complicated 4–1–4 alignment of Justices in Rapanos has engendered uncertainty in the courts and in regulatory settings. 

Under the most charitable read you can give the Rapanos case, its 

net effect is still problematic. It substitutes a new case by case judicially monitored significant nexus test in place of a longstanding 

deferential approach allowing regulators to exercise ecological and 

scientific judgments in assessing what should be protected. 

The issues at stake in Rapanos and the issues before you today 

are fundamental. What counts as a water of the United States is 

the key prerequisite to a host of different Federal Clean Water Act 

protections. This is not just an issue of wetlands, and it is not just 

about dredge and fill activities. If a water is not jurisdictional, then 

the Clean Water Act’s protections are lost. Such waters would no 

longer be subject to the protections against and regulation of industrial discharges under Section 402 of the Clean Water Act. Oil 

spills under Section 311 of the Clean Water Act would no longer 

be subject to Federal jurisdiction. And then of course, Section 404’s 

wetlands protections would be lost. 

As witnesses Curry and Yaich have explained well, rivers, 

streams, lakes, ponds and wetlands serve crucial functions, even 

when they are small and even when their relationship to the remainder of the aquatic system is not immediately apparent. The 

protection of America’s waters, if critical; the cost to clean up 

60 

America’s waters is exorbitant. The bottom line is it makes great 

fiscal sense and environmental sense to protect America’s waters. 

These longstanding protections are now in limbo. The current situation is really not acceptable. Everyone agrees the Clean Water Act 

has been a resounding success, and that is good to hear. But that 

doesn’t mean it should remain unchanged. When you consider the 

on-the-ground impact of these two decisions and regulatory responses, there can be no serious question whether the Act has been 

weakened since 2001: it has. 

The Supreme Court has unsettled this bipartisan, three decade 

long approach in three important ways. First, it has undercut this 

broad, shared view of what should count as waters, thus physically 

removing many waters from protection, especially after the 

SWANCC decision just referred to. It has fostered a confusing regulatory and jurisprudential mess, leading to splintered judicial approaches, regulatory interpretative uncertainty, delay, regulatory 

inattention and inertia. 

My timer is not on but—— 

Senator BOXER. Go right ahead you have a minute left. 

Mr. BUZBEE. OK, thank you. It has also substituted judicial 

views of policy that either downplay or ignore the Clean Water 

Act’s integrity goals and disregard earlier Supreme Court precedents and eliminate longstanding deference. 

So as I see it, there are four options before this Committee. One 

option is to do nothing. And I think that is really not an option— 

there are real harms on the ground happening every day. The second option is just to allow litigation and skirmishing before agencies to continue. That is also not an option. This is costly, uncertain, leading to splits in the circuits and delay. I have spoken to 

regulatory attorneys for industry who have talked about the difficulties post-Rapanos in just trying to get jurisdictional determinations. Now this delay is killing their businesses. 

Option three is to implore regulators to fix this mess. Unfortunately, the Supreme Court’s ruling was a direct interpretation of 

the Clean Water Act and has been interpreted by pretty much everyone as leaving limited latitude for regulatory correction. 

The fourth option is to pass a law, such as the Clean Water Restoration Act. While I know today’s hearing is not about that, I will 

briefly just sketch out the case for some sort of legislative fix. If 

there is to be a fix, it should be direct, it should be limited. This 

is just about what counts as a water of the United States. You 

don’t need to unsettle the whole statute and so therefore, as in the 

Restoration Act bills I have seen, or the versions I have seen, 

changing a definition of the waters and returning those definitions 

to what has long been the regulatory interpretation makes great 

sense. 

In addition, in contrast to some of the earlier witnesses, if you 

look at the entire history of the Clean Water Act—— 

Senator BOXER. Just finish your sentence. 

Mr. BUZBEE [continuing].—it has long been understood that the 

Clean Water Act should be protecting waters to the extent ecologically necessary and also to the limit of constitutional power. I 

hope that the Senators will consider a bill such as this in the future. 

61 

Thank you very much. 

[The prepared statement of Mr. Buzbee follows:] 

TESTIMONY OF WILLIAM W. BUZBEE, PROFESSOR OF LAW, DIRECTOR, ENVIRONMENTAL

AND NATURAL RESOURCES LAW PROGRAM, EMORY LAW SCHOOL, DIRECTOR, CEN- TER ON FEDERALISM AND INTERSYSTEMIC GOVERNANCE

My name is William Buzbee. I am a Professor of Law at Emory University School 

of Law, where I am director of Emory’s Environmental and Natural Resources Law 

Program. I am pleased to accept this Committee’s invitation to testify regarding the 

status of the Clean Water Act in light of the Supreme Court’s decisions in Solid 

Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 

159 (2001) (SWANCC) and the Supreme Court’s ruling in United States v. Rapanos, 

126 S. Ct. 2208 (2006). Since that time, the judicial and regulatory treatments of 

these cases and the earlier related United States v. Riverside Bayview Homes, 474 

U.S. 121 (1985), have revealed an increasingly confused body of law. These cases, 

and resulting confusion, have reduced the protections afforded to America’s waters. 

In addition, proposed legislation, The Clean Water Restoration Act of 2007 (hereinafter ‘‘the Restoration Act’’) is an important piece of legislation worthy of support. 

The Restoration Act offers, through a limited amendment of the Federal Water Pollution Control Act (known as the Clean Water Act (CWA), a means to restore protections long provided to America’s waters, as well as greatly reduce legal uncertainty 

and attendant litigation resulting from the somewhat uncertain intersection of these 

three important cases. In my testimony, I will review these recent developments, 

ending with my preliminary, brief assessment of The Restoration Act. 

I. RELATED WITNESS BACKGROUND

This is not my first involvement with the Supreme Court’s interpretations of what 

is protected as a ‘‘water of the United States’’ under the CWA. As a result of my 

work on environmental law and federalism, I served as co-counsel for an amicus 

brief filed in Rapanos on behalf of a bipartisan group of four former Administrators 

of the United States Environmental Protection Agency (EPA). Those former US EPA 

Administrators included Russell Train, who served under Presidents Nixon and 

Ford, Douglas Costle, who served under President Carter, William Reilly, who 

served under the first President Bush, and Carol Browner, who served under President Clinton. Despite their different party backgrounds and years of service, all four 

shared the same views about the importance of retaining longstanding protections 

of America’s waters.. Their brief was aligned in Rapanos with the Bush administration, several dozen states, many local governments, and an array of environmental 

groups. All asked the Supreme Court to uphold longstanding regulatory and statutory interpretations protecting wetlands and tributaries from dredging and filling 

regulated under Section 404 of the Clean Water Act and from direct pollution industrial discharges under Section 402 of the Clean Water Act and its National Pollutant Discharge Elimination System (NPDES) program. After the Court’s ruling in 

Rapanos, I testified during the summer of 2006 before the Fisheries, Wildlife, and 

Water subcommittee of this Committee on Environment and Public Works about the 

implications of the Rapanos decision. 

Earlier in my legal career, I counseled industry, municipalities, states and environmental groups about pollution control strategies and choices under all of the 

major Federal environmental laws. As a scholar, I have written extensively about 

related issues, with a special focus in recent years on regulatory federalism, especially environmental laws and their frequent reliance on overlapping Federal, State 

and local environmental roles. My publications have appeared in Stanford Law Review, Cornell Law Review, NYU Law Review, Michigan Law Review, University of 

Pennsylvania Law Review, and in an array of other journals and books. A related 

book on risk regulation and federalism focusing on preemption policy choice will be 

published by Cambridge University Press in 2008. I have taught at Emory since 

1993, but also visited at Columbia and Cornell Law Schools. 

II. THE STAKES

It is critical to understand that the Supreme Court’s construction of the Clean 

Water Act and what is protected as a ‘‘water of the United States,’’ and Congress’s 

and agencies’ responses to those decisions, determine not just where dredging and 

filling can occur beyond the reach of Federal law, but also whether industrial pollution discharges can escape regulation. What count as protected ‘‘waters’’ is not about 

some peripheral issue of outlandishly expansive stretching of Federal regulation, as 

62 

opponents of the CWA and the recently proposed Restoration Act often claim in near 

parodies of reality. The Clean Water Act’s protections, and the protections against 

oil spills, are all implicated here. Only protected ‘‘waters of the United States’’ are 

subject to the protections of CWA Section 301 (the general prohibition against point 

source discharges of pollution into waters without a permit), Section 402 (the Federal industrial pollution discharge permit program), Section 404 (the dredge and fill 

provision critical to protection of wetlands and other waters), and oil spill provisions 

in Section 311. If the CWA’s jurisdiction does not reach particular waters, they are 

lost from Federal CWA protection. Unless subject to some other statutory constraints, polluters could pollute with impunity. Make no mistake, the issue of what 

waters are protected is critical to the whole functioning of the CWA. The problem 

faced now is that two Supreme Court decisions since 2001 that construe the CWA 

have unsettled long-established regulatory interpretations, removed many waters 

from Federal protection, and created substantial regulatory uncertainty. The resulting environmental harms are real. 

Certainly there are core protected waters beyond dispute. But once one moves to 

wetlands and tributaries, feeder streams, headwaters of America’s precious rivers, 

and vast swaths of the country where heat and drought leave river and stream beds 

empty for parts of the year, then what are protected waters becomes critical. The 

Supreme Court’s decisions have left many waters unprotected, or at least created 

regulatory uncertainty about what is protected. If, for example, an Arizona stream 

bed is not federally protected, it can be filled or be a dumping ground for industrial 

discharges, even if during periodic heavy rains that stream will then carry pollutants downstream or be blocked by newly unregulated filling activities. This is not 

a hypothetical worst case: In public comments on a regulatory guidance in 2003, Arizona estimated that up to ninety-five percent of its stream miles are intermittent 

or ephemeral. Uncertainty created by the Supreme Court’s recent decisionmake vulnerable unprotected water supplies in areas where water is most precious. 

III. RAPANOS, SWANCC, AND THE NEED FOR A LEGISLATIVE RESPONSE

Two important recent Supreme Court CWA cases about what count as protected 

waters of the United States have unsettled three decades of regulatory protections 

provided by the CWA. Those protections were embraced and even strengthened by 

both Republican and Democratic administrations over the years. This section of my 

testimony first briefly sketches out those longstanding, bipartisan views about the 

CWA’s reach. I then turn to analysis of the two cases that unsettled these longstanding regulatory protections: Solid Waste Agency of Northern Cook County v. 

U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), and the Court’s 

splintered 2006 decision in Rapanos, 126 S. Ct. 2208 (2006). 

a. The Bipartisan, Three Decade Protection of Waters of the U.S. 

Despite disagreement about the implications of Rapanos, virtually all commenters 

on the CWA agree that it has led to huge improvements in the quality of America’s 

waters. By design, the CWA created a Federal floor of protection, giving states and 

local governments the power to be more protective, and also involving states in the 

implementation and enforcement process through delegated program structures. 

Much of this success is attributable to expansive definitions of what count as, and 

are hence protected as, jurisdictional waters of the United States. Although the 

CWA speaks of ‘‘navigable waters,’’ that term has since 1972 been defined in the 

statute as meaning ‘‘waters of the United States.’’ Those 1972 amendments of what 

is now called the Clean Water Act stated the goal ‘‘to restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters.’’ 33 U.S.C. Sec. 

1251(a). To that end, the statute required discharges into waters to be prohibited 

unless allowed by a permit. Since 1972, and as now agreed by all members of the 

Supreme Court and repeatedly reaffirmed in the Court’s last three major CWA cases 

concerning what is protected as a ‘‘water,’’ the law clearly protects waters that are 

not navigable in the usual sense of that term; they need not be ‘‘navigable in fact’’ 

by shipping. 

It has also long been part of the legislative, regulatory, and judicial history of the 

1972 CWA that it was intended to protect waters to the limit of Federal legislative 

power under the Constitution. The House and Senate in 1972 reports both stated 

the intent to give the term ‘‘waters’’ its ‘‘broadest possible constitutional interpretation,’’ 40 Fed. Reg. 19,766 (May 6, 1975) (citing S. Rep. No. 92–1236, at 144 (1972); 

H. Rep. No. 92–911, at 131 (1972), statements that the Supreme Court and lower 

courts long recognized when confronted with challenges to Federal jurisdiction. 

Regulatory interpretations of what count as waters was unsettled and litigated for 

the first few years after enactment of the 1972 CWA. By the mid–1970’s, however, 

an expansive interpretation of what waters are protected was promulgated and 

63 

strengthened up until the Supreme Court’s cutting back on the CWA’s reach in 

SWANCC. As Republican appointee and former U.S. EPA Administrator William 

Ruckelshaus recently stated in a letter to Representative James Oberstar in connection with hearings regarding the proposed Clean Water Restoration Act, EPA’s regulatory interpretation of waters has long included ‘‘interState and intraState waters’’ 

and covers ‘‘non-navigable tributaries and wetlands.’’ (Letter of July 17, 2007). As 

another past Republican U.S. EPA Administrator, Russell Train, stated, ‘‘a fundamental element of the Clean Water Act is broad jurisdiction over water for pollution 

control purposes. It has been well-established that water moves in interrelated and 

interdependent hydrologic cycles and it is therefore essential that pollutants be controlled at their source to prevent contamination of downstream waters.’’ (Letter of 

July 17, 2007 to Representative James Oberstar). Similarly, former Republican U.S. 

EPA Administrator under the first President Bush, William Reilly, recently stated: 

‘‘Since the Clean Water Act passed, U.S. courts and regulatory agencies have consistently complied with Congress’ intent by interpreting the term ‘navigable waters’ 

to cover all interconnected waters, including non-navigable tributaries and their adjacent wetlands, as well as other waters with ecological, recreational, and commercial values, such as so-called ‘isolated’ wetlands and closed-basin watersheds common in the western United States.’’ (Letter of July 6, 2007 to Representative James 

Oberstar). Democratic EPA Administrators concur. EPA Administrator Carol 

Browner, who served under President Clinton, recently expressed concern in written 

testimony with lost protections and regulatory rollback following the Rapanos decision. (July 19, 2007 Testimony of Carol M. Browner Before the Transportation and 

Infrastructure Committee, U.S. House of Representatives). 

These understandings of CWA law and regulations are confirmed by the longstanding, explicit provisions of regulations regarding what are protected as waters. 

40 C.F.R. 230.3; 33 U.S.C. 328.3(a). Even in the fiercely litigated cases leading to 

the Rapanos decision, this bipartisan political consensus about the importance of 

protecting a broad definition of waters held together. The Bush administration and 

the Solicitor General argued hard in briefs and before the Supreme Court for retention of the protections provided for three decades, regardless of the party in power 

in the White House or in the legislature. 

b. The Supreme Court’s Unsettling of the Bipartian Three Decade Consensus 

In SWANCC, the Supreme Court in 2001 rejected the Federal Government’s attempt to protect isolated waters from fill due to their use by migratory birds, as prohibited under an interpretive document referred to as the Migratory Bird Rule. The 

Court gave the Clean Water Act a limiting read, overcoming the usual deference to 

agency statutory interpretations, due to the Court’s concerns that protecting isolated 

waters due to use by migratory birds would go too far and be at the limit of Federal 

power. The Court therefore found that such regulation was not intended by Congress in 1972. Importantly to constitutional arguments about the Restoration Act, 

the Court did not declare the statute unconstitutional, or even flesh out why the 

asserted jurisdiction was asserted to be at the bounds of Federal power, but instead 

said a statutory clear statement was needed to justify Federal protection of such waters. The Court basically punted on the question of the statute and exactly why and 

whether SWANCC presented a constitutional problem, acknowledging the issue but 

not resolving the validity of grounds for Federal power argued before the Court. It 

ultimately concluded that because the statute did not clearly State an intent to 

reach isolated waters that could be used by migratory birds, the Court would (and 

did) hold that the CWA did not reach the waters at issue in the case. By eliminating 

such ‘‘isolated waters’’ protected due to use by migratory birds from Federal protection, huge amounts of previously Federal waters are no longer subject to protection 

under the CWA. As mentioned below, it appears that regulators in the Army Corps 

and U.S. EPA have overly expansively read SWANCC, more generally ceasing to 

protect isolated waters despite the Supreme Court’s more limited rejection of the migratory bird jurisdictional justification and the presence of other CWA regulatory 

provision that could protect isolated waters. 

Rapanos presented different sorts of challenges. It too involved what ‘‘waters’’ are 

protected, but overlapped substantially with the earlier United States v. Riverside 

Bayview Homes case, 474 U.S. 121 (1985), where a unanimous Supreme Court protected wetlands adjacent to ‘‘lakes, rivers, streams, and other bodies of water . . . .’’ 

In Riverside Bayview, the Court focused overwhelmingly on the CWA’s goals, the 

biological and ecological functions served by such wetlands and waters, and the difficulty in ‘‘choos[ing] some point at which water ends and land begins.’’ Given this 

difficulty, the need to consider hydrological connections, and the law’s anti-pollution 

goals, the Court deferred to the Army Corps’ judgments. 

Rapanos involved related questions of what sorts of tributaries and wetlands that 

are not ‘‘navigable in fact’’ are reached by the CWA. The reconfigured Supreme 

64 

Court, with newly appointed Chief Justice Roberts and Justice Alito, produced a series of opinions in Rapanos. No single majority opinion speaks for five or more justices in this case. No five justice majority, in an opinion or in shared opinion rationales, rejects these long-established protections of America’s waters. Rapanos undoubtedly, however, makes for tough legal analysis and a confused legal terrain. 

Due to the lack of a single majority opinion, we must look at votes and opinion 

content to understand the decision. Most confusingly, five justices agreed that the 

Army Corps of Engineers had to do more to establish its jurisdiction in the two consolidated cases leading to the Rapanos decision, but five justices overwhelmingly 

agreed with a broad protective rationale for jurisdiction in these cases. Five justices 

Justices Kennedy in concurrence, and Justices Stevens, Souter, Ginsburg, and 

Breyer in dissent, strongly and explicitly disagreed with virtually all aspects of a 

plurality opinion penned by Justice Scalia.. The four dissenters to the remand judgment disagreed with Justice Kennedy’s call for case by case significant nexus analysis. The did, however, overwhelmingly agree with the sorts of waters stated by Justice Kennedy to deserve protection. 

Working with a 4–1–4 Court breakdown, with a judgment and majority rationales 

cutting in different directions, does present a challenge. As discussed below, it has 

led to confusion in the courts and a regulatory guidance that appears illegally narrow. Counting heads and parsing Rapanos and the Court’s other major ‘‘waters of 

the United States’’ decisions, there actually should be a fair bit of remaining clarity, 

but in application confusion has reigned. Among the views of the law that should 

be broadly agreed upon, but have actually divided courts and regulators, are the following: Most protections of the Clean Water Act’s long-established regulations remain. Significantly, no justice claims to overrule or cut back the Court’s unanimous 

1985 Riverside decision. Adjacent wetlands remain protected due to their 

hydrological and ecological functions. All justices also continue to agree that the 

Clean Water Act protects more than just ‘‘navigable-in-fact’’ waters. The key regulations defining what count as ‘‘waters of the United States’’ were not struck down. 

Indeed, Riverside Bayview Homes explicitly upheld them, SWANCC concerned an 

interpretive extension of those regulations, and Rapanos involved ‘‘as applied’’ challenges to Federal jurisdiction and no five justice majority struck down any of the 

underlying regulations. A majority of justices also are sticking with the lack of Federal protection for isolated wetlands reached due to migratory bird use, as the Court 

concluded in SWANCC. In Rapanos, five justices rejected expansive arguments 

about SWANCC and arguments seeking to further limit Federal constitutional 

power. 

So how do we interpret this splintered set of opinions? As Chief Justice Roberts 

basically states in his own brief concurring opinion, through citations to earlier 

Court opinions, the narrowest opinion that shares greatest ground with other justices becomes the key opinion for future application. The key swing opinion is that 

of Justice Kennedy. Both by itself, and also if looked at with the Justice Stevens 

dissenters’ opinion with which Justice Kennedy agrees repeatedly, most of the protections long established under the statute and implementing regulations remain intact. 

Before discussing Justice Kennedy’s opinion, it is important to State clearly that 

Justice Scalia’s opinion for a plurality of justices does not represent the law, except 

to the extent his crabbed view of the CWA might protect waters otherwise not protected by Justice Kennedy’s concurrence. Relying heavily on a dictionary created 

over a decade before the statutory language at issue, Justice Scalia and his fellow 

plurality justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) 

read the CWA to reach only ‘‘relatively permanent, standing or continuously flowing 

bodies of water,’’ and exclude areas where water ‘‘flows intermittently or 

ephemerally, or channels that periodically provide drainage for rainfall.’’ This view, 

had it been adopted by a Court majority, would have constituted a revolutionary discarding of long-established regulatory approaches, as well as a radical rejection of 

the twenty-year-old Riverside Bayview Court precedent (although these justices do 

not concede such an intent or effect). This Justice Scalia plurality opinion hence garnered only three additional votes for its severely limiting view of what can be protected as a Federal water. 

Nevertheless, in articulating the sorts of waters the plurality would protect, the 

plurality justices joining Justice Scalia’s opinion do describe certain sorts of waters 

that could potentially not be protected by Justice Kennedy’s generally more expansive view of what waters are subject to Federal jurisdiction. The dissenters, in an 

opinion by Justice Stevens, noted this possibility and thus said that both Justice 

Kenendy’s and Justice Scalia’s waters are protected: ‘‘Given that all four Justices 

who have joined this opinion would uphold the Corps’ jurisdiction in both of these 

cases—and in all other cases in which either the plurality’s or Justice Kennedy’s 

65 

test is satisfied—on remand each of the judgments should be reinstated if either of 

those tests is met.’’ 

Justice Kennedy’s opinion concurring in the judgment repeatedly rejects the 

Scalia opinion’s approach as ‘‘inconsistent with the Act’s text, structure, and purpose,’’ as do the dissenters. For Supreme Court opinions to constitute law, you need 

to find five justices in agreement, five justices in assent regarding the rationale for 

the decision. Justice Scalia came up one vote short. It is only a plurality opinion. 

As now agreed upon by the Department of Justice, the Army Corps and EPA, and 

several (but not all) courts that have confronted the issue, Justice Kennedy’s opinion 

is the key. Justice Kennedy picks up on SWANCC language to assert that there 

must be a ‘‘significant nexus’’ between wetlands or tributaries to navigable waters 

or waters that could be navigable for them to be jurisdictional waters subject to Federal protection. Critically important, the sorts of significant links he sets forth are 

many and are sensitive to the statute’s explicit focus on ‘‘chemical, physical and biological integrity.’’ Wetlands or tributaries can be federally protected if ‘‘alone or in 

combination with’’ similar lands and waters, they ‘‘significantly affect the chemical, 

physical or biological integrity of other covered waters more readily understood as 

‘navigable.’ ’’ Non-navigable tributaries are ‘‘covered’’ if alone or with ‘‘comparable’’ 

waters they are significant. In addition to giving due heed to the usual goals of protecting water quality and fishery resources long protected and affirmed in Riverside 

Bayview Homes, Justice Kennedy further refers to ‘‘integrity’’ goals, as well as concern with ‘‘functions . . . such as pollutant trapping, flood control, and runoff storage.’’ 

Under the Kennedy opinion, only if wetlands or tributaries have insubstantial 

linkages and effects, alone or in combination with other similar lands or waters, 

might they lose protection. Justice Kennedy’s ‘‘significant nexus’’ articulation ends 

up creating an overwhelming overlap with long-established regulatory approaches, 

as well as with the approaches articulated in the Justice Stevens Rapanos dissent 

joined by three other justices. 

Also significant is Justice Kennedy’s and the dissenters’ repeated call for deference to expert regulators’ judgments about the significance of both categories of 

waters and particular waters subject to jurisdictional determinations. Justice Kennedy clarifies the many types of uses and functions that are federally protected, but 

leaves to regulators room to assess the significance of areas that might, upon first 

examination, not look like protected waters. Such deference is notably lacking in the 

Justice Scalia opinion. 

Nevertheless, Justice Kennedy’s opinion is problematic. Most significantly, his significant nexus test often calls for intensive case by case, water by water, analysis 

for Federal jurisdiction to be upheld. Thus, while he gives some weight to regulatory 

judgments and calls for deference, his concurrence does unsettle three decades of 

regulatory judgments long implemented and enforced by the Army Corps and U.S. 

EPA. 

When Justice Kennedy and the dissenters apply their approaches to the Rapanos 

and Carabell facts, both intimate that on remand Federal jurisdiction looks likely 

to be found. Justice Kennedy differs from the dissenters in asking the Army Corps 

to establish on a case by case basis the nexus test he articulates. 

Last, no five-justice majority in Rapanos cut back on Federal regulatory power 

under the Commerce Clause. The Court in granting certiorari had considered making this a constitutional decision under the Commerce Clause, a goal numerous industry, property rights and anti-regulation groups had supported in their briefs. We 

today see similar arguments leveled against the Restoration Act. Five justices, however, explicitly rejected these arguments. The Justice Scalia plurality would have 

used constitutional concerns to read the statute narrowly and limit Federal power, 

but only four justices adopted this view. If anything, the five justices rejecting a 

Commerce Clause attack broadened Federal power from where it might have gone 

after SWANCC. 

In testimony before the Senate Environment and Public Works Subcommittee on 

Fisheries, Wildlife, and Water, and in follow-up questions from the Senators, I offered fairly extensive additional analysis for why Justice Kennedy’s opinion, as well 

as any additional waters possibly protected by Justice Scalia’s opinion, both are now 

protected. As Justice Stevens noted in his dissent, both sorts of waters command 

majority support of the Supreme Court. Since that testimony and responses to questions are now part of the public record, I will not go further into this issue except 

to note, as I do below, that the Court’s fragmented opinions have led to lower court 

and regulatory confusion, rollback, and arguable error. 

66 

IV. THE NEED FOR A LEGISLATIVE FIX

a. Post-Rapanos Judicial Confusion 

Most Courts confronting issues of what waters are protected post-Rapanos have 

found that at least waters protected by Justice Kennedy’s opinion are subject to 

Federal jurisdiction, but not all courts have agreed with the assertion by Justice 

Stevens in dissent and the Bush administration Department of Justice that both 

waters protected by Justice Kennedy and by Justice Scalia are protected under the 

CWA. A few courts have appeared to view Justice Scalia’s opinion as most important. Most courts and scholars agree that generally Justice Kennedy’s ‘‘significant 

nexus’’ test protects waters the Justice Scalia plurality would protect, but there remains a possibility that in some instances the plurality’s focus on continuous connections and continuous flowing waters would protect some waters not reached by 

Justice Kennedy. 

But disagreement remains, with resulting confusion for the private sector, regulators working in each jurisdiction, and uncertain effects on the environment. One 

district court in Texas, shortly after the Rapanos decision, found Justice Kennedy’s 

opinion too confusing, appeared to follow the Scalia plurality opinion’s approach and 

earlier court of appeals precedent, and found Federal law not to reach oil spillage 

into a stream bed because it was dry part of the year. 

Of perhaps greater significance is the Eleventh Circuit’s recent decision in United 

States v. Robison, 2007 WL 3087419 (11th Cir. Oct. 24, 2007). In almost every respect, that decision reveals the disastrous effects of the Supreme Court’s recent decisions. The decision bottom line is that convictions for egregious violations of industrial pollution discharge permit requirements under Section 402 of the CWA were 

vacated and remanded due to court questions about the link of the receiving waters 

of Avondale Creek and downstream ‘‘navigable in fact’’ waters. There is no indication in the decision that the industrial polluter, the McWane foundry, had ever before claimed it did not need a NPDES permit, but the court read Rapanos to call 

into question the reach of Federal power. The court reached this remarkable decision due to its read of Rapanos. It read Justice Kennedy’s opinion as the lone relevant opinion, disagreeing with some other circuits’ conclusions and DOJ briefs arguing that both Justice Kennedy and Scalia waters are protected. As the Eleventh 

Circuit conceded, this mattered because the continuous water connections would 

likely have been easily reached by the Justice Scalia plurality opinion. The court 

struggled most in trying to apply the ‘‘significant nexus’’ test. It ultimately remanded due to its uncertainty about Federal jurisdiction over Avondale Creek and 

waters into which this substantial creek flowed. This opinion is likely in error in 

reading Justice Kennedy, since Justice Kennedy talks about certain sorts of waters 

as presumptively covered without the need for case-by-case proof, but the case demonstrates the confusion and harms sown by Rapanos. A long, costly criminal proceeding involving egregious violations and massive industrial discharges will need 

to be retried, and these violations may go unremedied. 

District Court Judge Robert Propst, upon receiving the case on remand, sought 

to be released from further work on the case. In utter exasperation and a fair bit 

of humor, he detailed the many ways in which, in his estimate, the Supreme Court 

and then the 11th Circuit have left the law in an incoherent mess. He closing by 

asking a series of seven questions about where the law stands post-Rapanos, each 

of which is subject to debate. He then coins the phrase ‘‘justsurdity’’ to capture with 

a neologism ‘‘areas of the law which help to attain justice, but appear to be absurd 

when considered in light of common sense.’’ The justsurdity noted (and coined) by 

Judge Propst has unsurprisingly led to regulatory uncertainty and arguably illegal 

rollback of the CWA’s protections. b. Post-Rapanos and SWANCC Regulatory Confusion and Rollback 

The disparate approaches by lower courts means that regulators seeking to acquiesce in the law of each circuit will need to try to apply their circuit’s particular read 

of Rapanos. Disparities in what waters will be protected around the country will 

necessarily result. The CWA’s longstanding goal to create a level environmental 

playing field for industry and the states has been frustrated. 

In addition, a June 2007 interpretive guidance issued by US EPA and the Army 

Corps post-Rapanos generally parrots the DOJ’s briefing position that both waters 

protected by Justices Kennedy and Scalia are within Federal jurisdiction, but it also 

in several places seems to cut back on those protections. This guidance is still in 

the comment phase, but its initial version reveals serious problems. 

In particular, Justice Kennedy’s concurrence focused a great deal on the CWA’s 

integrity goals, as well as the need to protect waters that in combination with other 

similar or comparable waters would have a significant effect. The recent interpretive 

guidance largely omits reference to these ‘‘combination’’ waters, potentially removing 

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from Federal jurisdiction huge numbers of smaller similarly situated waters that in 

combination and in their cumulative impacts are critical to downstream water quality and quantity. Environmental groups in their comments question the legality of 

the guidance, asserting that by ignoring or deemphasizing these protective elements 

of Justice Kennedy’s opinion, and failing to give weight to still effective regulations 

about protective waters, the guidance exceeds the bounds of the Army Corps’ and 

EPA’s interpretive discretion. 

In comments on this draft guidance, among the many critics were Army Corps 

employees with the job of making such jurisdictional determinations. Their comments reveal that the Supreme Court’s Rapanos decision and the guidance have 

added up to a recipe for delay, confusion, frustration of those seeking permits and 

regulators, and ultimately regulatory inattention. One employee estimated the guidance has quadrupled the time needed to make a jurisdictional call and left the 

jurisidictional lines in ‘‘100 shades of gray.’’ Another said the guidance ‘‘creates a 

lengthy, confusing, and complicated jurisdictional determination form’’ that ‘‘no one 

really understands.’’ 

Similarly, since SWANCC, it appears that in considering more isolated sorts of 

waters, the Army Corps has expanded upon SWANCC’s limited rejection of Federal 

power to protect isolated waters due to their use by migratory birds. It appears that 

some regions and perhaps the central Army Corps and EPA offices no longer even 

consider protecting isolated waters arguably protected under other regulatory rationales, even though they have the legal authority and responsibility to do so. This 

was confirmed recently in testimony before the House Committee on Transportation 

and Infrastructure on October 18, 2007 by Ben Grumbles, EPA’s Assistant Administrator for Water. In response to questions from the Committee, Assistant Administrator Grumbles said: 

Well, there are two guidances that we are working under, the 2003 SWANCC 

guidance and the basic point there is in the guidance we held open the possibility 

that there could be circumstances under A.3 paragraphs of our regulations where 

there could be an assertion of jurisdiction over isolated intraState non-navigable waters without relying on the migratory bird rule provisions. As a legal matter, that 

is still possible, but as a practical matter, we had not asserted jurisdiction over 

those types of wetlands based on that guidance, which is still in place. (emphasis 

added) 

This concession is important. As stated by Assistant Administrator Grumbles, 

after SWANCC and Rapanos, the agencies are not protecting waters in accordance 

with regulations still in effect. They thereby are leaving unprotected an even larger 

universe of streams, wetlands, and other waters than required by the Court’s decisions in SWANCC and Rapanos. 

All of this uncertainty gives opponents of CWA jurisdiction an array of newfound 

arguments. It creates the near promise of litigation. This will predictably lead to 

agency reluctance to get mired in lengthy regulatory disputes and litigation. Unless 

an environmental group is nearby and ready to litigate, Army Corps and US EPA 

officials will be tempted to avoid conflict and find no Federal jurisdiction. 

Thus, the regulatory bottom line is that far fewer waters are protected, uncertainty is rife about what waters are officially protected, regulators will be tempted 

to decline jurisdiction, and lots of litigation will result. 

V. THE CLEAN WATER RESTORATION ACT’S LOGIC AND LEGALITY

Since my involvement with the Rapanos case and as part of my teaching and writing about environmental law, I have closely followed related regulatory and legislative developments. This fall, I’ve closely been studying the Clean Water Restoration 

Act, in both its House and Senate versions. For reasons I briefly address here, I believe the Restoration Act is sound and could help return the law to the definitions 

of waters protected for three decades by Republicans and Democrats alike. 

a. Restoring longstanding bipartisan regulatory protections makes sense 

The Restoration Act starts with extensive findings about the importance of America’s waters and a finding about the commercial ‘‘substantial effects’’ of waters, as 

well as a reference to the sorts of economic, commercial activities causing the degradation of waters of the United States. Its key provision eliminates the use of the 

word navigable, substituting the longstanding definitional clause ‘‘waters of the 

United States.’’ It then mentions the sorts of waters long protected under CWA regulations. It does not delete or modify other provisions. It really is a focused, direct, 

legislative amendment making statutory the longstanding regulatory definition of 

the sorts of waters protected by the CWA. The categories of waters have been subject to similar protections under regulations in place since the late 1970’s, regulations retained and implemented by both Republican and Democratic administrations 

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since that time. It is also important to recall that the Bush administration in the 

Rapanos case argued for retention of those longstanding regulatory protections. Recent scientific publications confirm that the scientific basis is strong for the regulatory conclusion that tributaries, streams, wetlands and other waters far removed 

from navigable-in-fact waters perform significant ecological services, thereby protecting waters for valuable economic, commercial and recreational purposes. 

This Act also does not by its terms undo the many statutory and regulatory 

sources of flexibility and exceptions long established under the CWA. These sources 

of flexibility tend to focus on particular sorts of activities. If waters lost from protection post-SWANCC or Rapanos are again subject to jurisdiction, it might bring some 

unscrutinized activities and linked waters back under Federal oversight, but the 

Restoration Act does not itself change in any categorical way the treatment of such 

activities. 

As a matter of sound environmental policy, the longstanding protections sought 

to be revived in the Restoration Act have been invaluable. Even the well-funded opponents of the Restoration Act depend in businesses, personal lives, and recreation, 

on the existence of clean water. America’s usually abundant potable water, except 

when excessively polluted, is perhaps our greatest resource and comparative advantage over rising economies around the world. Our chief economic competitors continue to struggle to remedy gross pollution harms and lack of safe water. Clean, 

unpolluted waters and preserved wetlands also remain critical to filter contaminants, provide natural habitat and biodiversity, and provide a buffer for storm 

harms. America’s hugely profitable hunting, fishing and recreational tourism industries depend on preserving America’s waters. Businesses will at times hope to escape regulation and maximize profits, but long-term, all benefit from America’s 

clean waters. America’s long commitment to clean water is crucial. 

b. Broad language about constitutional power is necessary 

In some comments and letters, critics of the Restoration Act have claimed that 

its provisions referring to the constitutional reach of the Act are in some way constitutionally problematic. With all due respect to those critics, I believe these arguments are based on a misreading of the Restoration Act, constitutional law, and key 

CWA case precedents. 

First, several provisions of the Restoration Act directly seek to make clear the intent to protect waters of the United States to the limits of Federal legislative power. 

Most significantly, Section 4, in proposing to amend Section 502(24), states that the 

sorts of waters protected means ‘‘all waters [then specified waters are listed] . . . 

to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.’’ 

This links to Section 2(3)’s statement of purposes, which states the purpose: ‘‘To 

provide protection to the waters of the United States to the fullest extent of the legislative authority of the Congress under the Constitution.’’ 

The findings provisions further provide linked language, stating in Section 3(8) 

that: ‘‘The pollution or other degradation of waters of the United States, individually 

and in the aggregate, has a substantial relation to and effect on interState commerce.’’ Sections 3(9) to 3(12) further spell out these important water uses and values. Relatedly, Section 3(13) finds that ‘‘activities that result in the discharge of pollutants into waters of the United States are commercial or economic in nature.’’ 

Later provisions State that the Restoration Act is a ‘‘necessary and proper means’’ 

of implementing various treaties and protecting Federal lands 

First, there is nothing inherently constitutionally problematic about Congress in 

legislation stating its intent to legislate to the limit of Federal legislative power. 

After SWANCC and a number of other cases from recent decades where the Supreme Court and other courts have used ‘‘clear statement’’ requirements as a means 

to limit the reach of Federal law, such language is actually essential. If Congress 

wants to restore the CWA’s protections, the most effective means to avoid limiting 

judicial constructions is to State clearly the intended reach of Federal power. 

These provisions do not, however, result in making Federal power effectively limitless. All of these provisions specifically reference ‘‘these waters,’’ which in turn refers back to the sorts of waters specified in Section 4. By eliminating the word ‘‘navigable,’’ Congress also makes clear that the CWA continues not to have as a focus 

navigation and shipping sorts of usages, but anti-pollution goals. Hence, when waters or activities affecting those waters have the sorts of linkages justifying Federal 

legislative power, then they will be jurisdictional. Such specificity was not needed 

in 1972 or earlier, when the Supreme Court showed greater deference to the legislature, and when ‘‘clear statement’’ driven statutory interpretations were less common. In addition, at that time a statement about the intended constitutional reach 

could be put in legislative history and respected by courts, as it was in the case of 

69 

the CWA (and discussed earlier in my testimony). Many courts today would be unlikely to give weight to a legislative history statement. 

This language is especially necessary in light of SWANCC which, while not making any declaration of unconstitutionality, did give the CWA a limiting read due to 

somewhat unspecified constitutional concerns, in part driven by the Court’s attention to the word ‘‘navigable’’ and other provisions preserving and enlisting states to 

play ongoing roles in protecting America’s waters. This Act addresses those concerns 

and removes the statutory hooks used by the majority in SWANCC. Four justices 

used similar interpretive moves in Rapanos. Congress must draft with cognizance 

of likely judicial reception, and in light of the reality of preceding related court decisions. These provisions are logical and necessary in light of preceding case law. 

Can Congress constitutionally reach the sorts of waters specified in the Restoration Act? The answer is a resounding yes. As a matter of constitutional law, certainly Congress can protect waters that themselves ‘‘substantially affect’’ commerce 

and regulate activities that are themselves commercial or economic or nature. After 

all, in the Supreme Court’s major Commerce Clause decisions in recent years, it has 

focused at times on the thing to be protected, while at other times focused on the 

nature of the activity that would, if not regulated, cause harm. Hence the Court focused its Commerce Clause analysis in the famous United States v. Lopez case on 

whether the handgun possession at issue had an established commerce link. 514 

U.S. 549 (1995). In the later United States v. Morrison case, 529 U.S. 598 (2000), 

the Court focused on the lack of a commercial aspect to violence against women. In 

SWANCC, the Court’s abbreviated and partial analysis focused on waters themselves (the thing protected), but acknowledged, without resolving the question of 

constitutionality, that other ‘‘activities’’ could influence its Commerce Clause constitutional analysis. In the Court’s most thorough Commerce Clause analysis in the 

modern era, in the Hodel v. Indiana case, 452 U.S. 314 (1981) the Court looked at 

an array of ways Federal protections satisfied Commerce Clause requirements. A 

particularly thorough analysis of how environmental amenities like waters and endangered species can easily be regulated under our Constitution is provided by renowned conservative Fourth Circuit Judge J. Harvey Wilkinson in Gibbs v. Babbitt, 

214 F.3d 483 (4th Cir. 2000). He examines activities causing harm, the inherent economic and ecological value of the protected wolf, and the economic value of activities 

dependent on the ongoing existence of the wolf. 

In addition, constitutional scrutiny under the Commerce Clause does not focus on 

an act or activity or thing in isolation, but looks at them in the aggregate. In 

Gonzales v. Raich, 545 U.S. 1 (2006), the Supreme Court last year strongly reaffirmed that the test of constitutionality of Commerce Clause regulation looks at 

activities in the aggregate and ‘‘can regulate the entire class’’ of activity, without 

needing to prove the substantiality of each exercise of enforcement power. The Court 

declined to ‘‘excise individual applications’’ of regulatory power: ‘‘[w]here the class 

of activities is regulated and that class is within the reach of Federal power, the 

courts have no power to ‘excise, as trivial, individual instances of the class.’ ’’ 545 

U.S. at 22–23 (citations omitted). Hence, the regulation of home grown marijuana 

cultivated for medicinal purposes was found within the Federal commerce power. 

Given the aggregate importance of often small types of waters and possibly individually small environmental harms that in aggregate can be substantial, the Restoration Act is on sound footing. 

There remain attenuated waters and completely non-commercial causes of harm 

that could, in application, be found beyond Federal power, but the Federal agencies 

have historically stopped short of regulating everything that technically could be 

considered a ‘‘water.’’ As stated in a 1986 Federal Register statement found in 51 

Federal Register at 41217: 

For clarification it should be noted that we generally do not consider the following 

waters to be ‘‘Waters of the United States.’’ However, the Corps reserves the right 

on a case-by-case basis to determine that a particular waterbody within these categories of waters is a water of the United States. EPA also has the right to determine on a case-by-case basis if any of these waters are ‘‘waters of the United 

States.’’ 

(a) Non-tidal drainage and irrigation ditches excavated on dry land. 

(b) Artificially irrigated areas which would revert to upland if the irrigation 

ceased. 

(c) Artificial lakes or ponds created by excavating and/or diking dry land to collect 

and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing. 

(d) Artificial reflecting or swimming pools or other small ornamental bodies of 

water created by excavating and/or diking dry land to retain water for primarily 

aesthetic reasons. 

70 

(e) Waterfilled depressions created in dry land incidental to construction activity 

and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States (see 33 CFR 

328.3(a)). 

To summarize, Congress can certainly State its intent to legislate on a particular 

subject (here, specified waters) to the limits of its constitutional powers. The particular subjects of regulation waters of the United States and the usually commercial or economic activities that harm them will almost always easily in application 

pass constitutional muster. Congress certainly stands on a sound factual and scientific footing in its Findings talking about the importance of these waters and the 

sorts of activities causing them harm. This is especially so given the usual ability 

to aggregate regulated activities or amenities to ascertain their ‘‘substantial’’ nature. 

c. The Restoration Act retains longstanding CWA limitations and flexibility 

In addition to the reality of just discussed presumptive carveouts from Federal jurisdiction, it is important to recall that the CWA has long had numerous provisions 

and interpretations rendering it quite flexible and effective in avoiding regulation 

of de minimis harms. As the current drafts of the Restoration Act reaffirm, the 

CWA explicitly carves out a substantial number of activities from the reach of the 

law. There is also the longstanding general or ‘‘nationwide’’ permit provisions that 

presumptively allow certain types of activities to proceed, typically upon mere notification to regulators and absent a regulatory objection. The statute and regulations 

promulgated pursuant to it also allow wetlands protections and Section 404’s strongly protective dredge and fill provisions to be sidestepped in some settings with replacement of lost wetlands through mitigation banking or compensation. Perhaps 

most importantly, the mere finding of jurisdiction does not mean a permit denial. 

Many waters are subject to jurisdiction, but requested activity is permitted. 

d. The Savings Clause could lead to confusion 

The savings clause of the Restoration Act, Section 6, may make political sense as 

reassurance to important constituencies, but strikes me as unnecessary, tautological, and a possible recipe for litigation uncertainty. If the intent is to preserve 

some version of the status quo, it may provide both too much and too little. 

By referencing a series of particular currently existing statutory provisions as 

‘‘saved,’’ the Act creates confusion. If those provisions remain in the law, as they 

do and would if the Restoration Act became law, then there is no need to say that 

they remain. That is evident in the law itself. Courts trying to make sense of this 

legislative choice will likely try to figure out a way to make it more than mere surplusage, but we can perhaps hope that they might see the political reality of statutory drafting intended to reassure. 

I am aware that some stakeholders would like specific reference to particular regulatory exemptions and add language that they remain. This is, I believe, the worst 

possible way to use a savings clause. Any regulatory interpretation or exemption 

will have a core of likely accepted meaning, but will also have a history of additional 

regulatory interpretations and actions in implemented settings that could be viewed 

as legally problematic. Such legal concerns can be from stakeholders concerned with 

overly broad or narrow readings of a statute or regulation. It is difficult to control 

litigation that would surely flow from any specified ‘‘saving’’ of some regulatory exemptions. It would be far better to keep the Restoration Act clean and avoid yet 

more litigation over what is ratified, rejected, or impliedly not saved. 

CONCLUSION

The Clean Water Act’s longstanding protections of ‘‘waters of the United States’’ 

reflected a bipartisan view that held for three decades. That bipartisan regulatory 

approach suffered two major, problematic blows in the Supreme Court’s SWANCC 

and Rapanos decisions. SWANCC undoubtedly cut back on the reach of federally 

protected waters. Rapanos was more of a mixed result, with most Federal protections remaining and potentially devastating narrowing of the CWA garnering only 

four Supreme Court votes. The case, however, resulted in such a confusing 4–1–4 

alignment, with an underlying ‘‘significant nexus’’ test that is demanding and uncertain, that courts and regulators are struggling. Leaving the statute, cases and regulatory interpretations alone is not a viable and prudent option for Congress. Whether one is an environmentalist or homebuilder, jurisdictional uncertainty and delay 

are in no one’s interest. A return to the bipartisan approaches to waters that 

worked for thirty years would be a sensible and constitutionally sound step for the 

Senate. Restoring these longstanding protections for America’s waters makes ecological, economic, and legal sense. 

71 

RESPONSES BY WILLIAM W. BUZBEE TO ADDITIONAL QUESTIONS

FROM SENATOR BOXER

Question 1. The Clean Water Act prohibits discharges of toxic chemicals from industrial facilities such as chemical plants and oil refineries into our streams and 

rivers, under what is commonly known as the ‘‘NPDES’’ program. 

a) Are the decisions in SWANCC and Rapanos /Carabell applicable to the scope 

of waters protected under the NPDES program essentially the same as they apply 

to waters under the Section 404 program? If so, what are the implications of this? 

Response. Yes. The issue of what are protected as ‘‘waters of the United States’’ 

is relevant to far more than just protection of wetlands under Section 404. Industrial discharges under Section 402’s NPDES program are subject to Federal regulation only if they discharge into ‘‘waters of the United States.’’ Similarly, the Clean 

Water Act’s provisions regarding oil spills share the jurisdictional hook of a link to 

such waters, as do other important water quality provisions under the Act. 

The Eleventh Circuit’s 2007 decision in United States v. Robison, 2007 WL 

3087419 (11th Cir. Oct. 24, 2007), concerning the status of Avondale Creek and 

egregious NPDES permit violations by the McWane foundry, reveals the broad mischief Rapanos can cause. The 11th Circuit required the government on remand to 

establish that this fairly significant receiving creek satisfied the new jurisdictional 

tests created by Rapanos. For reasons I have discussed in my submitted December 

2007 testimony and earlier testimony from 2006 to this committee about Rapanos, 

I believe the court erred in saying that only waters protected by Justice Kennedy’s 

‘‘significant nexus’’ test are protected, but it is clear that the court is on sound footing in assuming that only ‘‘waters of the United States’’ are protected under the 

CWA’s various provisions. I have heard, although not seen data on this, that some 

industrial dischargers have begun to seek release from NPDES permit obligations 

on the grounds that the Federal Government no longer has jurisdiction over the waters into which pollution flows. Further evidence of the broad import of the ‘‘waters’’ 

language is found in recent attacks by the American Petroleum Institute on regulations, claiming that Federal regulations overreach because fewer waters are now 

protected. This is evident in their briefs filed in the United States District Court 

for the District of Columbia in American Petroleum Institute v. Johnson and Marathon Oil Co. v. Johnson (Civil Action Nos. 02–2247 PLF and 02–2254 PLF). 

b.) Under Rapanos/ Carabell, if a chemical factory is located next to an isolated 

wetland or a stream that is only flowing at certain times of the year and, in either 

case, that water does not have a significant nexus to a traditional navigable water, 

is it your understanding of Rapanos/Carabell that a chemical factory could dump all 

of the toxic pollution it wants into those water bodies without any control under the 

Federal Clean Water Act? 

Yes, I believe that this is correct. I’ve looked around for recent analyses of how 

many industrial facilities discharge into intermittently flowing waters or headwaters. I believe that, according to EPA data, approximately 14,000 such facilities 

have been identified. Whether they are discharging industrial effluent, chemical facility effluent, treated sewage, or releases otherwise regulated by the CWA’s oil spill 

provisions, the Federal Government only has jurisdiction, and the action is prohibited by the CWA, only if the receiving water is a ‘‘water of the United States.’’ 

Under the hypothetical you pose, the waters at issue would probably not satisfy either Rapanos test garnering majority support about what sorts of waters are protected. It might remain covered by Federal law if one could establish that a point 

source discharge into a non-jurisdictional water would flow into a jurisdictional 

water, but such a claim of jurisdiction would likely be litigated due to uncertainties 

created by the Court’s fragmented opinions and the somewhat uncertain new tests 

they utilize. 

c.) Could the new interpretation announced in SWANCC and Rapanos/Carabell 

result in threats to Americans’ drinking water sources? 

Shrinking protections for what count as federally protected ‘‘waters’’ poses numerous risks to American’s drinking water sources. Most directly, many Americans rely 

on private wells for drinking and often agricultural uses. Those wells are often recharged by nearby headwaters, streams, wetlands, and rivers. If more of these waters can be degraded with impunity from previously applicable Federal CWA protections, well water quality could be threatened. As we know from the earlier discussion Robison case, even fairly substantial flowing creeks may now escape Federal 

protection. 

According to EPA data, more than 100 million Americans get their drinking water 

from public supply systems that intake water from source water protection areas 

containing first order headwater or seasonal (intermittent/ephemeral) streams. In 27 

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states, more than 1 million residents get drinking water from these systems. See 

attached, ‘‘Table 1: State by State NHD Analyses of 

Stream Categories and Drinking Water Data’’ (prepared by U.S. EPA); Letter of 

US EPA’s Benjamin Grumbles to Jeanne Christie (Jan. 9, 2005) (providing data regarding extent of non-navigable tributaries and adjacent wetlands and linked drinking water systems). 

Relatedly, as New York City discussed in a brief it filed in the Rapanos case, cities like New York that rely on reservoirs for drinking water are threatened by 

newly degradable upstream waters. As New York City discussed, substantially increased water treatment expenses could be borne by cities and states if more polluted water sources require more costly treatment to comply with the Safe Drinking 

Water Act. Thus, drinking water is threatened and states and cities face increased 

water treatment expenses if waters, be they wetlands, creeks, or streams, are no 

longer subject to CWA protection. 

d.) Should it concern Congress that in many states there may be no legal constraints against polluting wetlands and intermittent streams under the Rapanos/ 

Carabell decisions? 

Yes, although the problem is more likely to be one of gaps than a complete lack 

of any law. As I further discuss in my answer to Senator Inhofe’s question about 

whether State law stands as a bulwark of protection if Federal law is less comprehensive (as he asks about in connection with Arizona law), if Federal law’s protections under the CWA are weakened or disappear, states will often have neither 

the laws nor the resources to step into the breach. Most states have some sort of 

law protecting waters, but Federal law undoubtedly has long provided additional 

protections on which most states have come to depend. 

The CWA’s weakening after Rapanos creates several sorts of problems and likely 

regulatory gaps in protection of America’s waters. 

First, one of the paramount reasons for creation of a national CWA with uniform, 

protective provisions and prohibitions was to deter a destructive ‘‘race to the bottom’’ where states would be tempted to offer regulatory laxity to attract or retain 

business with attendant tax and employment benefits. If whole categories of previously protected waters are now possibly beyond Federal protection, states will 

once again face the difficult choice between protecting their environment, and pleasing businesses that may argue for lowered regulatory requirement and threaten to 

invest in other jurisdictions. 

Second, numerous states have enacted laws that prohibit their environmental regulators from adopting more protective regulations than required by Federal law and 

regulations. Professor Jerome Organ thoroughly analyzed this phenomenon in a 

1995 article, Limitations on State Agency Authority to Adopt Environmental Standards More Stringent than Federal Standards: Policy Considerations and Interpretative Problems, 54 Maryland Law Review 1373 (1995). Recent Federal regulatory 

comments updated that study, finding that thirty states now have some versions of 

‘‘no more stringent’’ laws. See Response to Clean Water Act ANPRM of National 

Wildlife Federation, Sierra Club, Earthjustice et al., April 6, 2003, at 117. In a 2006 

presentation by Indiana’s environmental commissioner, he indicated that such constrained states are often especially eager for the Federal Government to remain rigorously protective so State environments will not suffer. See www.in.gov/idem/commissioner/speeches/2006/eqsc—nmst—10-30-06.ppt 

Third, states have come to depend on a productive, cooperative relationship with 

the Army Corps and EPA in protecting waters. To avoid government waste and unnecessarily redundant State and Federal requirement, many states have avoided 

creating duplicative State law. Instead, the states tailor their law so it complements 

longstanding Federal schemes and requirements. They often have done so as part 

of assuming obligations to implement and enforce Federal law as provided under the 

CWA’s delegated program structures. State law then often follows or explicitly references Federal law. For this reason, in Supreme Court briefs and regulatory comments, numerous states have not seen Federal CWA protections as a hindrance, but 

as something crucial to preserve. 

As a bipartisan group of former US EPA Administrators noted in their joint amicus brief in the Rapanos case, many states have created one streamlined and seamless regulatory process. This fact has been noted in regulatory comments filed in 

2003 in response to a Advance Notice of Proposed Rulemaking regarding interpretation and application of the SWANCC ruling (hereinafter ANPRM Comments). See 

Michigan (ANPRM Comments at 14, 22); Delaware (ANPRM Comments at 15); and 

Vermont (ANPRM Comments at 2). Concerned with a post-SWANCC proposed rule 

that would have weakened Federal protections of waters, Montana objected: ‘‘[State] 

programs are strengthened and supported by their consistency with Federal rule.’’ 

73 

Weakening Federal protections ‘‘would remove this consistency and support, leaving 

the programs vulnerable to diminishment by local legislative actions.’’ 

Of equal significance, many states have not enacted laws or regulations to protect 

wetlands, relying instead on Section 404 of the CWA, and supporting Federal regulatory activity under this provision. Such states have explicitly objected to weakening of Federal protection of ‘‘waters’’ due to how it would leave in-State wetlands 

vulnerable. As California stated in a 2003 regulatory comment: 

California has historically relied on the Corps’ protection of wetlands under CWA 

section 404 and has not established an independent wetland permitting program. 

Federal abdication in this important field would represent a dramatic shift in responsibility. We are certain that it would cause irreparable harm to the potentially 

affected waters. As with many other states, California will not be able to comprehensively replicate the Corps’ regulatory role in the foreseeable future because 

of its current budget crisis. It is also completely unrealistic to expect local planning 

authorities to shoulder this responsibility. 

Question 2. You have been involved in environmental law and the Clean Water 

Act for many years, both as a practicing lawyer and as a scholar. In your view, prior 

to SWANCC, was there any major problem or confusion with how the Act was being 

implemented, or were the jurisdictional requirements reasonably understood? 

Response. I believe that the longstanding regulatory protections and definitions 

of waters, which have remained overwhelmingly consistent since 1977, have long 

been reasonably understood. As with any regulatory restriction, disputes over application of those implementing regulations still can and has given rise to disputes. 

The applicable regulatory requirements, however, were quite settled until the Supreme Court’s decisions in SWANCC and Rapanos. 

Question 3. Before SWANCC, was the Clean Water Act doing a good job in meeting the goal of protecting water quality? In your view will the SWANCC and 

Rapanos/Carabell decisions impact the effectiveness of the Act and, if so, how? 

Response. The Clean Water Act has been one of America’s great success stories, 

helping transform a nation of severely polluted waters into a country where many 

streams and rivers are now clean enough for fishing and swimming. It is true that 

prior to the CWA, pollution into some rivers was so severe that rivers could and 

did catch fire. 

Nevertheless, the CWA coverage of pollution sources is not comprehensive; 

nonpoint source pollution is not addressed well, and its many provisions providing 

flexibility have in some areas reduced pollution reduction benefits. In addition, Section 303 surveys of impaired waters around the country reveal many waters that 

still fail to meet their designated uses and are not moving toward fishable and 

swimmable quality. 

It is hard to see how SWANCC and Rapanos can do anything other than impair 

the effectiveness of the act. SWANCC explicitly eliminated a large category of waters from Federal protection; if a water was federally protected due only to migratory bird use of an isolated water, then it is now not protected. As I discussed in 

my pre-hearing submitted testimony concerning Federal regulators’ application of 

SWANCC, it has been read much more expansively than required by the case. Other 

grounds for protecting isolated waters are apparently no longer considered, even 

though the Supreme Court was assessing only an application of the so-called ‘‘migratory bird’’ rule. The confusing Court fragmentation in Rapanos, coupled with the 

inherent challenges in construing Justice Kennedy’s ‘‘significant nexus’’ test, have 

already resulted in disparate judicial treatments, industry claims of lost Federal jurisdiction, a guidance document that further shrinks Federal protections, and such 

a high degree of regulatory uncertainty that everyone involved confronts higher permitting uncertainty and costs. Regulators confronted with limited resources and 

time and nervous about litigation may therefore avoid close jurisdictional determinations. The net result will, at a minimum, mean reduced water protections, and 

regulatory and litigation delay. 

Question 4. What do you predict for the next few years in terms of litigation and 

administration proceedings if Congress does not clarify the scope of Clean Water Act 

jurisdiction. 

Response. As we’ve already seen (and as just discussed), more litigation, disputeladen administrative proceedings, and disparate litigation standards are a virtual 

certainty if Congress does not act. 

74 

RESPONSES BY WILLIAM W. BUZBEE TO ADDITIONAL QUESTIONS

FROM SENATOR INHOFE

Question 1. If Congress changes the statutory definition, what legal theory supports the continued validity of existing regulatory exclusions for prior converted 

cropland and waste treatment systems? 

Response. Since the hearing focused on the status of the law after the Supreme 

Court’s recent decisions, rather than a particular piece of proposed legislation, I am 

not positive what changed definition your question references. I will assume, however, that your question concerns an issue I have heard is under discussion, namely 

the status of current statutory or regulatory exclusions if Congress were to pass a 

legal amendment along the lines of the Clean Water Restoration Act. If, as was evident in the last version of the Restoration Act I have seen, a new statutory definition sought closely to track previous regulatory definitions of protected waters and 

make them statutory, and such a bill contained language trying neither to endorse 

nor overrule statutory or regulatory exclusions, then I think that is what it would 

likely achieve. The difficult task here for legislative drafters is to avoid inadvertently unsettling accepted exclusions, but also not inadvertently ratify every conceivable expansive and potentially illegal application of those exclusions. Thus, I would 

anticipate that core, accepted applications of the exclusions you reference would remain valid. Inappropriate stretching of those exclusions, however, would likely not 

implicitly be ratified by a bill like the Restoration Act. But all of this is hard to 

answer without knowing the exact legislative language you have in mind. 

Question 2. On page 4 of testimony, you quote from the House and Senate reports 

‘‘both stated that the intent to give the term ‘‘waters’’ it’s broadest possible constitutional interpretation. The quote is actually that navigable waters be given the 

broadest possible interpretation. Isn’t there a difference between navigable waters 

and waters? 

Response. As long interpreted, the statutory term of art in the CWA, ‘‘navigable 

waters,’’ has been defined as ‘‘waters of the United States.’’ That phrase, in turn, 

has been understood to cover all of the waters of the United States, largely as interpreted in regulations in place since 1973, for EPA, and since 1977, for the Army 

Corps. As stated in legislative history materials, judicial opinions reflecting courts’ 

(including the Supreme Court’s) examination of the CWA, its enactment history, and 

the law itself, and in the regulations defining protected waters, the law was meant 

and interpreted to protect such waters to the limit of Federal constitutional power. 

Until the Supreme Court revived a focus on ‘‘navigable’’ in portions of its SWANCC 

decision, a focus on ‘‘navigability in fact’’ was largely absent. The Supreme Court 

in International Paper Co. v. Ouellette, 479 U.S. 481, specifically noted the CWA’s 

‘‘broad and comprehensive’’ scope that ‘‘applies to all point sources and virtually all 

bodies of water.’’ In other cases, the Supreme Court has noted that ‘‘[n]avigability 

is but part of this whole’’ of the Federal Government’s constitutional power to protect waters. United States v. Appalachian Power Co., 311 U.S. 377, 426–27 (1940). 

As then Justice Rehnquist wrote for the Court in Kaiser Aetna v. United States, 

44 U.S. 164, 173 (1979), ‘‘[r]eference to navigability of a waterway adds little if anything to the breadth of Congress’ regulatory power over interState commerce.’’ 

These Supreme Court precedents are themselves consistent with the CWA’s language and structure, as well as legislative history statements. Navigability is a defined term of art, not a touchstone for the limits of the CWA jurisdiction. First, the 

statute itself has an explicit goal and focus on ‘‘chemical, physical, and biological 

integrity of America’s waters.’’ 33 USC Section 1251. In sections of the CWA focused 

on protecting water quality, numerous goals are identified, with navigability one of 

numerous goals, and a subsidiary focus at that. Section 1313(c) identifies goals of 

protecting public water supplies, protecting fish and wildlife, recreational and agricultural purposes, then adds a tag line ‘‘and also taking into account consideration 

their use and value for navigation.’’ 

As your question references, the 1971–72 legislative history of the CWA contains 

numerous references to the CWA as intended to, as stated then by Representative 

Dingell, move away from the ‘‘old narrow definitions of navigability’’ to, as stated 

by a conference report, give the term ‘‘’navigable waters’ ’’ ‘‘’the broadest possible 

constitutional interpretation.’’ 

It is thus unsurprising that all current Supreme Court Justices agree that the 

CWA ‘‘includes something more than traditional navigable waters.’’ Rapanos, 126 

S.Ct at 2220 (Scalia, J., for a plurality of the Court). The other Justices Justice Kennedy in his concurrence and the four dissenters were even more expansive in the 

extent to which waters that are not traditional navigable waters are protected. 

75 

Question 3. On page 5 of your testimony, you claim that an expansive view of preSWANCC jurisdiction can be based on ‘‘long-standing, explicit provisions regarding 

what are protected waters.’’ 

• Was there a ‘‘long-standing, explicit definition of ‘‘adjacent’’ prior to SWANCC? • Was there a ‘‘long-standing, explicit definition of ‘‘ordinary high water mark’’ 

Prior to SWANCC? • If so, why did the Corps repeatedly promise to clarify jurisdictional issues in 

Every Regulatory Agenda from 1990-2001? 

Response. I believe that the Code of Federal Regulation definitions of protected 

‘‘waters of the United States’’ in place since 1977 for the Army Corps have defined 

adjacent and ‘‘high water mark’’ in a consistent manner, and since 1979 for US EPA 

have defined adjacent in a consistent manner. I do not believe EPA has used a definition of ‘‘ordinary high water mark’’ in its regulations. I have not researched the 

context and nature of any particular promises by the Army Corps to revisit and clarify these particular terms in past regulatory agendas. I cannot speculate on what 

mix of regulatory tasks might have led them to State an intent to clarify a regulatory issue but not do so. Certainly many agencies these days face challenges due 

to limited budgets and expanding regulatory obligations. Agency failure to update 

old regulations is a common problem. I cannot, however, comment on the particular 

promise you reference. 

Question 4. You spend some time in your testimony talking about Arizona. Isn’t 

is true that 

The Arizona Water Quality Control Act contains a definition of ‘‘Waters of the 

state’’-A.R.S. Sec. 49-201(40)-that covers all watercourses, including intermittent 

and ephemeral waters, giving Arizona enforcement jurisdiction over any waters outside Federal jurisdiction? 

Response. I am not an expert on Arizona law, and certainly cannot opine knowledgeably based on my own study about how Arizona has implemented its law or resources available for implementation and enforcement. Fortunately, Arizona has 

been active in responding to proposed regulatory guidances interpreting what should 

be protected as waters, and also joined a brief with many other states in Rapanos 

arguing for the Court to retain longstanding protections for America’s waters. That 

brief and Arizona’s comments reveal that Arizona, like most states, is eager for Federal law to remain strong and opposes weakening interpretations. 

For example, in 2003 comments on the post-SWANCC ANPRM, Arizona describes 

its water protections as linked to and indeed intertwined with Federal law due to 

Arizona assuming responsibility for the CWA NPDES program, as provided under 

the CWA cooperative federalism ‘‘delegated program’’ structures. Its view is that if 

Federal CWA protections for ‘‘waters’’ are undercut, Arizona protections would similarly shrink: 

The proposed change will have a profound impact on the authority of State environmental protection agencies like ADEQ to implement its water quality management programs, to prevent pollution, and to maintain and protect the biological, 

chemical, and physical integrity of Arizona’s waters. ADEQ is designated as the 

State agency for all purposes of the CWA (A.R.S. 849–202) and depends on the full 

implementation of its CWA programs to protect the state’s water resources. These 

CWA programs are the state’s core regulatory programs to prevent pollution of Arizona’s streams and lakes. Alternative regulatory authorities are not available. 

Arizona further stated concern that ‘‘[i]f the State loses the ability to protect 

water quality of ephemeral and intermittent streams, it may be impossible to protect water quality in the downstream streams, lakes and reservoirs into which they 

flow.’’ Given State law prohibiting Arizona regulators from being more protective 

than Federal law, the State bluntly acknowledged that Arizona protections would 

shrink if Federal protections were lost: 

A re-definition of the regulatory definition of ‘‘waters of the United States’’ at the 

Federal level that restricts the jurisdictional scope of the Act and . . . will have a 

profound impact on ADEQ’s ability to regulate the point source discharge of pollutants to Arizona surface waters—placing virtually 95 percent of the State’s waters 

outside the CWA protections. There would be no prohibitions against discharges of 

pollutants (CWA 301), no requirements to get permits (402 and 4 04) and no enforcement provisions. 

In comments submitted just last month, on December 5, 2007, on the postRapanos Guidance issued by the Army Corps and US EPA, Arizona reiterated these 

concerns, especially focusing on harms that would flow from lost protections for 

‘‘ephemeral and intermittent, or non-perennial’’ waters. After describing its own 

laws and linkages to Federal law through assumption of Federal delegated program 

status under Section 402, Arizona’s Department of Environmental Quality states 

76 

that ‘‘[i]f the Corps and EPA deem ephemeral and intermittent waters non-jurisdictional under the Guidance, or if the agencies fail to deem such waters jurisdictional, 

all Clean Water Act protections for these waters bodies may be lost.’’ Arizona estimates that 96 percent of its stream miles are non-perennial. 

Arizona’s Governor, Janet Napolitano, recently wrote to Representative Oberstar 

expressing concern with lost protections of waters after the Rapanos decision, and 

in support of the Clean Water Restoration Act. Consistent with other regulatory 

statements by Arizona officials, Governor Napolitano stated that ‘‘[w]hile we have 

some outstanding water pollution control laws in Arizona, we rely on the Federal 

Clean Water Act to protect Arizona’s surface water quality for many of our water 

uses.’’ 

In its Supreme Court Rapanos brief, Arizona and over thirty aligned states noted 

a further concern. Even if a State seeks in its law to be protective, the loss of uniform protective Federal standards would leave states vulnerable to interState movement of pollutants. In both its brief and in regulatory comments, Arizona further 

noted that it has long relied on Federal authorities to protect wetlands. 

Thus, as indicated in these assorted statements, Arizona is like most states. It 

has some environmental laws of its own, but it has neither the desire nor the resources to take over if Federal protections are lost. State laws turning Federal law 

into the maximum allowable level of environmental protection further mean that 

any weakening of Federal law directly weakens many states’ protections. Finally, 

gaps in coverage would inevitably result if Federal law were weakened in protecting 

‘‘waters of the United States,’’ especially because many states have not passed their 

own laws protecting wetlands and requiring permitting for ‘‘dredge and fill’’ discharges, as does Section 404 of the CWA. 

Senator BOXER. Thank you. 

First of all, I think Senator Inhofe and I both agree, this panel 

has been really terrific. Each of you is very passionate about your 

view. And I think you reflect, unfortunately, the split that will 

have on this Committee. This is a very passionate issue on either 

side. 

Now, I just want to make some observations, and we are going 

to keep the record open for 5 days, because colleagues will want to 

send you questions. So I hope you will be available to answer those 

questions. I know I have a number. 

But you know, when Mr. Mannina, you are a good lawyer, but 

in Section 502, the term navigable waters is defined by the very 

people that you cited. And it is defined as the waters of the United 

States, including territorial seas. So, I mean, to throw out that it 

said navigable waters, you are leaving out the fact that there was 

a definition. 

But I don’t have time to get into it, I will ask you that question 

how you can sort of forget to say that. That will be the question. 

And then I will put into the record, without objection, a chart, 

a one page, by the EPA which shows that 11 million Americans receive drinking water from intermittent or ephemeral streams. So if 

we—I am sorry, 111 million Americans receive drinking water from 

these ephemeral streams or intermittent streams. Now, I don’t 

know how the homebuilders feel that their people will feel when 

they have filthy, dirty drinking water because we can’t act. 

And the other question is, and I think the homebuilders were 

very eloquent on the point, saying, let the State do this. I haven’t 

seen many homebuilders in my State rushing around asking our 

State to suddenly have a new regulatory system. 

I do think that there are ways to fix this. We are certainly a long 

way from that because of the split on the Committee. This hearing 

is just the opening round. You have been terrific in making the 

record on both sides as to how people feel. But we will when we 

77 

come back next year have a hearing on some of the bills that are 

out there. 

And Senator Inhofe, we have a couple of minutes. Would you like 

to close with a couple of statements? 

Senator INHOFE. I am not sure we have a couple of minutes. 

Senator BOXER. We have until 9:30. That is 2 minutes. 

[Laughter.] 

Senator BOXER. I took three, you can take two. 

Senator INHOFE. Yes, we are going to have to go. But this happens to be one of the votes I have to make. Oddly enough, well, it 

is not oddly enough, it is usually the case, she is voting wrong and 

I am voting right, so we could cancel each other and just say here. 

Senator BOXER. Let’s put it this way: I am voting for reform. 

Senator INHOFE. That is true. 

I have a lot of questions I am going to ask for the record. I am 

sympathetic to you, Mr. Desiderio, because I used to do what your 

people do. I know the permitting process, you talked about the 

number of permits there would be under these various scenarios. 

I am interesting in knowing more about that and knowing what 

their capability is to do this. We can’t just stop this machine called 

America. 

And then you also referred to some of the intent of the conferees 

in 1972. You have given me a lot to look at and to read. All five 

of you have done a very good job of presenting your points of view. 

We are going to get into this. I have problems in my State of 

Oklahoma. I recall very well in Kingfisher County, a very arid part 

of the State, going in there, made a declaration for just a very 

small part, which took away the use of 160 acres in the most arid 

part of Oklahoma. And there is not any uniformity. We have to correct the problem. There is a problem, we do agree on that. 

So I think it is excellent testimony, we have lots of questions to 

send to you. 

[The referenced material follows:] 

Senator BOXER. Senator Inhofe, thank you so much. Thank you 

all. It has been short but sweet and very informative. 

Thank you. We stand adjourned. 

[Whereupon, at 9:30 a.m., the committee was adjourned.] 

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