TESTIMONY OF GARY S. GUZY
BEFORE A HEARING OF THE
U.S. HOUSE OF REPRESENTATIVES
COMMITTEE ON GOVERNMENT REFORM
SUBCOMMITTEE ON ENERGY POLICY,
NATURAL RESOURCES AND REGULATORY AFFAIRS
REGARDING IMPLEMENTATION OF THE SWANCC DECISION
September 19, 2002
Thank you Chairman Ose and members of the Subcommittee for the invitation to appear here today. I am pleased to be able to provide some perspective on the approach currently employed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to interpreting the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. Corps of Engineers, 121 S.Ct. 675 (2001) (SWANCC), and on the continuing vital importance of protecting our nation’s wetlands and water resources and not rolling back those protections.
Before I do, let me tell you briefly about my background. I have practiced environmental law for the past two decades. During this time, I have engaged in private law practice on behalf of private parties and states, and I have served as a line attorney at the U.S. Department of Justice, where I litigated numerous nationally important wetlands matters. I spent seven years in several senior level positions at the U.S. Environmental Protection Agency, including having the honor of serving as the Agency’s General Counsel from 1998 through January 2001. I currently am a partner with the law firm of Foley Hoag LLP.
EPA and the Corps of Engineers protect our nation’s wetlands under the authority provided by Congress in the Clean Water Act. That law has served this Nation enormously well as it nears its 30th anniversary next month. It was propelled by pollution so bad that our Nation’ rivers themselves caught on fire. Congress, when enacting the Clean Water Act, set forth some very straightforward goals, most particularly that the chemical, physical, and biological integrity of the Nation’s waters needed to be restored. 33 U.S.C. 1251(a). This law has been a resounding success -- returning significant portions of our Nation’s landscape to health, public enjoyment, and economic prosperity. The statute has been supported by seven Presidents of both parties and through 15 different Congresses.
Yet, as EPA reports in its Status and Trends review, nearly 40 percent of the nation’s rivers, lakes, and streams have yet to achieve a level of cleanliness sufficient to sustain the intended uses of those waterbodies. Likewise, our Nation has lost nearly one-half of its historic wetlands, and it continues to lose at least 60,000 acres of wetlands per year. These areas are essential for protecting us from flooding, cleansing our waters from pollution, purifying our drinking water, and providing crucial habitat. After a huge investment in municipal wastewater and industrial end-of-pipe infrastructure, our Nation continues to grapple with the problems caused by non-point sources of pollution. When Congress modernized the Safe Drinking Water Act in the 1990s, it wisely recognized that protecting the sources of drinking water from encroachment was just as critical as treating the finished water. If we have learned anything from the science as it has developed over these past 30 years, it is that ecosystems are related and cannot be treated in isolation and that protecting our nation’s wetlands is even more important for protecting public health than was originally understood.
Wetlands play a vital role in maintaining healthy ecosystems. According to a U.S. Fish and Wildlife Service Report published in June of this year, “[w]etlands are among the Nation's most scarce and valuable natural resources,” providing “crucial” habitat for fish, wildlife, and plants. Geographically Isolated Wetlands: A Preliminary Assessment of their Characteristics and Status in Selected Areas of the United States, June 2002, available at http://wetlands.fws.gov/Pubs_Reports/isolated/questions.htm. The EPA estimates that “[m]ore than one-third of the United States' threatened and endangered species live only in wetlands, and nearly half use wetlands at some point in their lives.” U.S. EPA, Wetlands: Fish and Wildlife Habitat, July 2002, available at http://www.epa.gov/owow/wetlands/fish.html.
This recent Fish and Wildlife Service Report, “Geographically Isolated Wetlands,” concludes that isolated wetlands -- which in many instances are the only remaining remnants of contiguous natural wetlands systems -- perform many of the same functions as other wetlands. Thus, isolated wetlands serve key ecological and economic roles. These wetlands provide temporary storage for excess rain and runoff, thereby reducing the impacts of floodwaters and helping reduce soil erosion caused by fast-moving water. Filling these areas can have significant detrimental impacts on the surrounding region. For example, several studies conclude that recent devastating flooding along the Red River can be linked to the loss of roughly two-thirds of the original 15 to 17 million acres of prairie potholes. See, e.g. Council on Environmental Quality, Environmental Trends 102 (1989); T.C. Winter, Hydrologic Studies of Wetlands in the Northern Prairie, in Northern Prairie Wetlands (Arnold Van der Valk, ed., 1989); L.J. Brun, et al., Stream Flow Changes in the Southern Red River Valley, 38 N.D. Farm Res. 1-14 (1981).
Isolated wetlands also help maintain water quality by slowly filtering excess nutrients, sediments, and pollutants before the water seeps into the nation’s rivers, streams, and underground aquifers. Isolated wetlands help replenish water supplies by recharging aquifers and by storing water during wet seasons and releasing it slowly through underground channels into streams and rivers during the drier months.
In addition, isolated wetlands provide critical habitat values. The Prairie Pothole area of the Great Plains region, for example, is the primary breeding ground for 40 percent of North America’s dabbling ducks, including mallards, pintails, and canvasbacks. National Wildlife Federation & Natural Resources Defense Council, Wetlands at Risk: Imperiled Treasures, July 2002, at 10.
The recent Fish & Wildlife Service report finds that the total land mass of these wetlands is significant, with isolated wetlands comprising more than half of the total wetland acreage in 11 percent of the report’s 72 study areas from around the country, while an additional 33 percent of the study areas had from 20 to 50 percent of their wetlands fall in the same category. Other regions had an even higher percentage of isolated wetlands, and some groups have suggested that 20 to 30 percent of the nation’s wetlands overall are at risk if isolated wetlands are not protected.
Federal jurisdiction over wetlands was upheld by a unanimous Supreme Court in 1985 in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). The Court there ruled that federal jurisdiction extended beyond the traditionally navigable waters, requiring permits for fill material placed into wetlands adjacent to navigable waters and their tributaries. 474 U.S. at 123. That is why the January 9, 2001, split decision by the Supreme Court in SWANCC represented such a shift and required that the agency personnel receive clarification of that decision’s legal meaning. While many commentators have raised questions about the logic and consistency of this ruling -- and it bears a vigorous dissent by four members of the Court -- it is the rule of the land that must be implemented by the agencies unless and until Congress sees fit to adopt a different approach.
Working with expert career staff from the Environmental Protection Agency and the Corps of Engineers, Corps of Engineers Chief Counsel Robert M. Anderson and I issued a Memorandum on this subject shortly after the Supreme Court’s ruling. Perhaps the most striking aspect of the Court’s decision is the narrowness of its holding. The Court did not rule on the constitutionality of the agencies’ interpretation of the Clean Water Act. Instead, the ruling holds that certain jurisdictional determinations are beyond the Act’s authority, when they involve all of the following elements: (1) intrastate waters; (2) that are non-navigable; (3) isolated; and (4) where jurisdiction is based solely on the waters’ use as habitat by migratory birds as the basis for their affect on interstate or foreign commerce. SWANCC, 531 U.S. at 162, 170-71, 174.
Equally striking was that the Court went to great pains to preserve its earlier ruling in Riverside Bayview Homes, which recognized the importance of the potential ecological connectedness between traditional navigable waters and wetlands adjacent to those waters and their tributaries, which are beyond the traditionally navigable waters. In view of these features, as well as the important goals of the Act which must be carried out by the federal agencies, we took care in delineating the several different types of wetlands still subject to Clean Water Act regulatory jurisdiction. For isolated waters, the Court did not reach the question of whether some other rationale could suffice under its logic to demonstrate federal regulatory jurisdiction -- such as when there is some other kind of hydrological connection; or when the destruction or degradation of those waters could impact other jurisdictional waters through flooding, erosion, or pollution, when they can no longer serve their important water retention or pollutant filtering functions. This approach would comport with the SWANCC court’s recognition that, “Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands “inseparably bound up with the ‘waters’ of the United States.”” 121 S. Ct. at 680 (cited by Brief for the United States, United States v. Rapanos, No. 02-1377 (6th Cir. July 11, 2002) at 23).
Let me be clear: this reading was compelled by respect for the Congressionally enacted goals of the Clean Water Act and the structure of the Supreme Court’s ruling and not by any political or ideological considerations. That this is an appropriate reading of SWANCC -- faithful to Congressional purpose -- has been confirmed by the weight of court decisions interpreting the case, see e.g., Headwaters, Inc. v. Talent Irr’n Dist, 243 F.3d 526 (9th Cir. 2001), and by several recent filings by the U.S. Department of Justice. Just last month the Department, in a brief signed by Assistant Attorney General Thomas L. Sansonetti, argued to the U.S. Court of Appeals for the Fourth Circuit that, “The Court’s refusal to expand CWA jurisdiction to isolated, intrastate waters does not signal, much less hold, that the scope of CWA jurisdiction approved in Riverside Bayview should be cut back.” Opening Brief for the United States, United States v. Newdunn Associates, No. 02-1594, at 38. Rather, the Justice Department claimed that, “SWANCC addressed only the portion of the regulations pertaining to water ‘isolated’ from the tributary system to traditional navigable waters and did not affect the well-established legal principle that CWA jurisdiction extends to wetlands adjacent to tributaries to traditional navigable waters.” Id. at 37.
Some Members of Congress and commentators have suggested that the Supreme Court’s SWANCC ruling should be viewed as a fundamental and sweeping re-ordering of wetlands authority. I respectfully submit that to reach that goal, however, would require the agencies to forsake their role as protectors of the Nation’s waters and Congress to change the current statutory scheme. What is needed now is straightforward guidance to clarify any misunderstanding about the current situation harbored by those who apply these regulations day in and day out. While I agree that if the agencies were to undertake a more sweeping policy evaluation -- as opposed to the legal interpretation Mr. Anderson and I forwarded -- it generally should be accomplished through means of a transparent regulatory process, there is no room under the current statute and the on-going authority of Riverside Bayview Homes to reach a substantially different result without a change in the underlying statute itself, and thus no warrant whatsoever for undertaking such a regulatory process.
These commentators ignore two other salient points. First, the mere assertion of regulatory jurisdiction does not conclusively mean that no fill or use of that property is permissible. Rather, there is a well-developed permitting process under Clean Water Act section 404 by which approximately 95 percent of the permit applicants receive authorization from the Corps of Engineers to engage in fill activity. Second, because of the structure of the Clean Water Act, whatever result pertains here also likely will apply to EPA’s regulation of effluent discharges under the National Pollution Discharge Elimination System (33 U.S.C. 1341) and to oil discharges under the Oil Pollution Act (33 U.S.C. 2702). Thus, there may be no remedy under these sweeping interpretations for the discharge, for example, of CAFO wastes or oil spills directly into prairie potholes in places such as Iowa.
If the real concern expressed by the regulated community is one of predictability and certainty, then the easiest solution would be for Congress to amend the Clean Water Act to remove any doubt about jurisdiction over isolated waters. I commend to this Subcommittee the bill introduced by Congressman Oberstar, Ranking Member of the Committee on Transportation and Infrastructure, Congressman Dingell, Ranking Member of the Committee on Energy and Commerce, and Senator Feingoldthat would reaffirm Congress’ original intent to protect from destruction all water bodies, including isolated wetlands. By replacing the term “navigable waters” throughout the Clean Water Act with the phrase “waters of the United States,” and by providing a thorough and comprehensive definition to guide federal agencies and the courts in their efforts to interpret this phrase, the Clean Water Authority Restoration Act of 2002 will make important headway in achieving Congress’ original goal of restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters. Indeed, it is telling that Representative Dingell, who managed the Clean Water Act on the Floor in 1972, is a sponsor of this bill to carry out his and that Congress’ intent. This amendment would conform with the desires of the American public as well, who care deeply about preserving the fishing, swimming, and recreational opportunities provided by clean and healthy water, and recognize its importance to our Nation.
I thank the Subcommittee for this opportunity to testify and would be pleased to answer any questions you may have.