Testimony of Senator Russell D. Feingold,

before the Subcommittee on Fisheries, Wildlife and Water of the

Senate Committee on Environment and Public

Oversight Hearing on the regulatory and legal status of

Federal jurisdiction of navigable waters under the Clean Water Act.

June 10, 2003

406 Dirksen Senate Office Building, 10:00 a.m.

Mr. Chairman, I thank you for the opportunity to appear before you today, and I want to acknowledge the very generous and forthright assistance provided to me as I sought an opportunity to testify before the Subcommittee on this matter by both the Chairman of the full Committee, Senator Inhofe and the Ranking Member, Senator Jeffords, who is a cosponsor of legislation I have introduced to reaffirm federal Clean Water Act jurisdiction, S. 473.

I am pleased to be testifying on the topic of federal jurisdiction over water under the Clean Water Act, Mr. Chairman, because, this is one of the most fundamental, most successful, and most popular environmental protection laws in our nation’s history. In my experience as the lead sponsor of legislation on this issue in both the 107^th and the current Congress, I can say that the debate over whether our federal law should continue to recognize the interconnected nature of our water systems is a growing national discussion. I can also say that I believe it is a debate that is unnecessary, and it is one that Congress should end. We need to be clear that Congress intends to erase any lingering ambiguity; we intend to reconfirm the original intent of the Clean Water Act and protect our waters, rather than lose them. This hearing goes a long way to achieving that goal, and I commend you, Mr. Chairman, for being willing to seek confirmation of the state of federal law on this matter.

In the U.S. Supreme Court's January 2001 decision, Solid Waste Agency of Northern Cook County versus the Army Corps of Engineers, a 5 to 4 majority limited the authority of Federal agencies to use what was called the migratory bird rule as the basis for asserting Clean Water Act jurisdiction over non-navigable, intrastate, isolated wetlands, streams, ponds, and other bodies of water.

This decision, which the Committee knows as the SWANCC decision, means that the Environmental Protection Agency and Army Corps of Engineers can no longer enforce Federal Clean Water Act protection mechanisms to protect wetlands solely on the basis that they are used as habitat for migratory birds.

In its discussion of the case, as you will hear from other witnesses, the Court went beyond the issue of the migratory bird rule and questioned whether Congress intended the Clean Water Act to provide protection for isolated ponds, streams, wetlands and other waters, as it had been interpreted to provide for most of the last 30 years. While not the legal holding of the case, the Court's discussion has resulted in a wide variety of interpretations by federal, state and local officials that jeopardize protection for wetlands, streams, and other waters. Wisconsin is fortunate in that, for regulatory matters, it falls entirely within the jurisdiction of the St. Paul District Corps of Engineers – though we have three Corps districts: St. Paul, Detroit, and Rock Island, Il, that service our state. Other states aren’t as lucky, and I have heard anecdotally that different Districts are giving different answers to questions about Clean Water Act jurisdiction after SWANNC. I hope the Subcommittee will pursue that issue with the Corps today.

Confusion about the proper scope of the Clean Water Act also exists within EPA. I noted with interest that, in March of this year, Senator Jeffords received a letter from EPA in response to a letter he had written asking whether Lake Champlain and its tributaries are still considered jurisdictional or not under the Clean Water Act. While EPA replied that Lake Champlain and all of its tributaries would continue to fall under the Clean Water Act’s jurisdiction, the agency’s letter raises questions about whether EPA would assert jurisdiction over streams and other tributaries of major water bodies as well as over so-called isolated, intrastate, non-navigable wetlands. The letter suggests that EPA’s determination of Clean Water Act jurisdiction in those cases might not be uniform nationwide, but instead would be dependent upon the holdings of individual courts within a particular region.

The regulated community is also concerned, Mr. Chairman. As you know, when a developer gets a permit from the federal government to destroy wetlands, they are required to mitigate them elsewhere. National Association of Mitigation Bankers is an association of businesses that constructs wetlands to meet the mitigation requirements of Corps of Engineers and EPA 404 wetlands permits. Many of the wetlands mitigation bankers create, though not all, are isolated, non-navigable wetlands. Ironically, the federal agency response to the SWANNC decision no longer provides federal protection for some of the wetlands that federal government mandates required developers to construct.

Within days of the SWANCC decision, constituents came to my town hall meetings asking for Congress to respond this decision immediately. Wisconsin became the first state to pass legislation to assume regulatory jurisdiction over wetlands left unprotected by the Supreme Court’s decision. Wisconsin has 15,000 named lakes and ponds, 5.3 million acres of wetlands and approximately 44,000 miles of streams. Wisconsin estimated that if SWANCC’s holding limits jurisdiction over so-called isolated wetlands, more than 1.1 million acres of wetlands in Wisconsin would no longer have federal protection. Our state’s legislation has become the model for several states.

The confusion over the interpretation of the SWANCC decision is growing, but not, I believe, because of the holding SWANNC case itself, but because of the manner in which federal agencies are implementing the decision. On January 15, 2003, the EPA and Army Corps of Engineers published in the Federal Register an Advanced Notice of Proposed Rulemaking raising questions about the jurisdiction of the Clean Water Act. Simultaneously, they released a guidance memo to their field staff regarding Clean Water Act jurisdiction.

The agencies claim these actions are necessary because of the SWANCC case. But both the guidance memo and the proposed rulemaking go far beyond the holding in SWANCC. The guidance took effect right away and has had an immediate impact. It tells the Corps and EPA staff to stop asserting jurisdiction over isolated waters without first obtaining permission from headquarters. Based on this guidance memorandum, waters that the EPA and Corps staff judge to be outside the Clean Water Act can be filled, dredged, and polluted without a permit or any other long-standing Clean Water Act safeguard.

The rulemaking announces the Administration’s intention to consider even broader changes to Clean Water Act coverage for our waters. Specifically, the agencies are questioning whether there is any basis for asserting Clean Water Act jurisdiction over additional waters, like intermittent streams. The possibility for a redefinition of our waters is troubling because there is only one definition of the term “water” in the Clean Water Act, so any change in the regulatory definition of “water” will effect the entire law. The wetlands program, the point source program which stops the dumping of pollution, and the non-point program governing polluted runoff all depend on the same definition.

If certain wetlands or other categories of water are treated as no longer protected under Section 404, then the law will fail to protect those same waters from having toxic waste, trash or raw sewage dumped in them under Section 402, or be protected against oil spills under Section 311, or be cleaned up under Section 303, or be protected from other activities that violate the Clean Water Act conducted in them as well.

Using administrative action to eliminate a category of waters from Clean Water Act jurisdiction is contrary to the law and the purpose of the Act. The Clean Water Act was adopted over thirty years ago to address widespread and severe water pollution problems across the country. Congress determined that it could not be left solely to the states to ensure that every community in the nations had access to clean, safe waters. While the Act prohibited discharges of pollutants into “navigable” waters. Congress defined this term broadly as “waters of the United States.” This broad definition was referred to repeatedly on the floor and in the relevant committees and on the floor of the House and Senate. The United States Senate reconfirmed the broad scope of the law again in 1977 when it rejected, by a strong bipartisan vote, a proposal to remove federal protections over a smaller category of wetlands and waters than are included in the Administration’s Advanced Notice of Proposed Rulemaking.

Even while EPA and the Corps consider whether to conduct a rulemaking to rewrite the definition of waters, the U.S. Department of Justice is in federal court defending the legal validity of the existing regulatory definition. Indeed, in recent briefs filed by the Justice Department, the Administration has argued forcefully that the broad definition of “waters” in the current rules is not only valid, it is necessary in order for the goal of the Clean Water Act to be met – to make all of the nation’s waters safe for fishing, swimming and other uses.

In my view, Congress decided this debate over the scope of the Clean Water Act in 1972, and the renewed debate should end now. Congress needs to re-affirm the longstanding understanding of the Clean Water Act’s jurisdiction to protect all waters of the U.S. -- the understanding that Congress held when the Act was adopted in 1972 -- as reflected in the law, legislative history, and the regulations, practice, and judicial interpretations that existed for many years prior to the SWANCC decision.

My proposed legislation does that, and it is a very simple bill. It adopts a statutory definition of “waters of the United States” based on the longstanding definition of waters in the EPA and Corps of Engineers’ regulations. Second, it deletes the term navigable from the Act to clarify that Congress’s primary concern in 1972 was to protect the nation's waters from pollution, rather than just sustain the navigability of waterways, and to reinforce that original intent. Finally, it includes a set of findings that explain the factual basis for Congress to assert its constitutional authority over streams, wetlands, ponds and other waters on all relevant Constitutional grounds, including the Commerce Clause, the Property Clause, the Treaty Clause, and Necessary and Proper Clause.

As the Committee knows, I feel that Congress needs to re-confirm the Clean Water Act’s jurisdiction to protect all waters of the United States. I believe the legislation I have introduced does no more and no less than that, and I hope this hearing will provide the Committee with justification for moving that measure forward. I thank you for the opportunity to share my views and those of my state.