ASWM: WBN addendum

EPA, CORPS Announce Rule to Clarify High Court’s SWANCC Decision

Source: Water Policy Report via InsideEPA.com
Date: September 23, 2002
Issue: Vol. 11, No. 19
© Inside Washington Publishers

EPA and the Army Corps of Engineers, hoping to end widespread uncertainty over federal wetlands oversight, are planning to issue a rule to define their authority over isolated wetlands in light of the Supreme Court's groundbreaking 2001 decision that limited Clean Water Act jurisdiction over such wetlands. "[W]e have determined that we should engage in rulemaking to define the federal role under the Clean Water Act (CWA) and collect broad public input on important jurisdictional waters," according to a joint statement by EPA General Council Robert Fabricant and Dominic Izzo, the Army Corps' principal deputy assistant secretary for civil works.

Their statement came at a Sept. 19 hearing on Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers before the House Government Reform Committee's energy policy, natural resources and regulatory affairs subcommittee. In its 2001 ruling in SWANCC, the high court held that federal agencies could not assert jurisdiction over isolated, non-navigable, intra-state waters based on the migratory bird rule
because it did not demonstrate a sufficient connection to interstate commerce.

The ruling created significant difficulty for states to continue to meet water quality standards because many relied on federal authority to protect the wetlands, while subcommittee chair Rep. Doug Ose (R-CA) repeatedly expressed concern in explaining why he called the hearing, that implementation of the decision by EPA and Corps regional offices has varied from case to case, leading to "confusion and chaos."

Fabricant and Izzo said in their statement that the rulemaking might explore whether the agencies may be able to resume asserting jurisdiction by considering the presence of fish and shellfish used for interstate commerce as the basis for federal oversight. The rule may also address what constitutes waters "adjacent" to navigable waters and hence under federal oversight, the status of certain non-navigable tributaries of navigable waters, and other wetlands issues.

"We have not completely defined the parameters of our rulemaking yet," Izzo told the committee.

Fabricant -- under persistent questioning from Ose -- said that EPA and Corps staff hoped to reach agreement on the rulemaking's scope at an early October meeting, although they could not say when a rule would be formally proposed. Ose expressed concern at the hearing that confusion is leading to disparate interpretations nationwide and criticized the agency and Corps officials for the amount of time that has elapsed since the SWANCC decision without clarifying actions from the agencies.

Agency and Corps officials gave no clear indication of whether the rule would supplant release of a long-delayed guidance aimed at defining federal wetlands oversight in the wake of the high court's controversial ruling. "All options are on the table," one EPA official says. "We are looking into the role guidance can also play." Similarly, Fabricant told the committee that EPA and Corps officials are "continuing to move the ball regarding guidance and/or rulemaking."

But the apparent rulemaking decision drew a swift rebuke from one prominent wetlands activist, who expressed concern that EPA political appointees would use the rulemaking to expanded SWANCC. "We strongly oppose a rulemaking . . . we consider it a huge rollback," the environmentalist says. "The only reason to look to a rulemaking is to look to overreach, to say more [waters] are excluded [from federal jurisdiction]."

Similarly, former EPA General Counsel Gary Guzy -- who submitted a statement to the committee arguing the SWANCC holding is very narrow -- slammed the idea of a rulemaking. "It seems calculated to delay enforcing wetlands protections," he said, adding that under the water act and existing case law, "there's not room for radical revisions of wetlands protections."

But EPA and Corps officials indicated at the Sept. 19 hearing that rulemaking would be the best way to settle jurisdictional confusion stemming from the SWANCC decision and minimize future wetlands litigation. "It's a good thing to get out there . . . it gives you better footing," a Corps source says, who indicated some form of guidance was also a possibility.

In addition, Thomas Sansonetti, assistant attorney general for environment and natural resources, said that Justice Department officials have engaged in a "comprehensive review" of its water act docket in order to ensure their positions in other cases are consistent with SWANCC. Sansonetti said in his testimony that as a result of its review, DOJ has had to abandon two enforcement actions. Sansonetti also noted a rulemaking could provide a needed "bright line" to determine "where jurisdiction will and will not lie."

However, he also pointed out that the department, despite uncertainty surrounding the issue, is careful to ensure their positions going forward in water act cases are consistent with SWANCC. Sansonetti also noted that pending cases would add more clarity.

At the hearing, property rights advocates argued that EPA and the Corps have failed to faithfully abide by the parameters of the SWANCC ruling in permitting decisions since it was issued.

"The lack of a jurisdictional statement therefore shields the EPA and the Corps from suit and allows them to continue to exercise authority over intrastate, non-adjacent, non-navigable waters that the Court in SWANCC determined are not subject to the Clean Water Act," according to prepared testimony from the California-based Pacific Legal Foundation.

[Editor’s note: most of the the testimony is available online at http://reform.house.gov/reg/hearings/index.htm#September192002. The testimony of Patrick Parenteau is available on the ASWM website at http://www.aswm.org/fwp/swancc]

The following articles are indicative of the forces that are shaping any SWANCC ruling that may be developed.

Washington Post Editorial: Protecting Wetlands

www.washingtonpost.com Friday, September 27, 2002; Page A22

LAST YEAR the Supreme Court narrowed the reach of the Clean Water Act, holding that it doesn't apply to "isolated" wetlands because it refers to navigable waters. The result has been confusion, and potential danger to natural habitats. Federal officials in different areas of the country have put the court's ruling into practice differently. States haven't made much progress in filling the gap. Two U.S. courts have reached opposite conclusions about how much connection to navigable water is enough to bring a wetland within the Clean Water Act's reach. And wetlands that play a critical environmental role are perilously vulnerable to pollution or destruction by dredging and filling.

There's a right way and a wrong way to end the confusion, and the administration seems to be reaching for the wrong way. Officials of the Army Corps of Engineers and the Environmental Protection Agency let it be known last week that the administration will consider new rules for applying the Clean Water Act. The Justice Department, at least until now, has argued in court cases for a narrow interpretation of the Supreme Court decision. But new rulemaking could become an opportunity to further weaken the federal role in protecting small streams and bodies of water.

The best answer to this problem lies with Congress. Pending legislation would remove from the act the reference to navigable waters, making clear lawmakers' intention to protect all U.S. waters, including the isolated bogs, pools and "prairie potholes" now in jeopardy. It would reaffirm Congress's original aim and would conform to the way the law was understood until last year's ruling. Opponents of regulation might yet challenge Congress's constitutional right to regulate waters that are entirely contained within a single state. But there is a good argument to be made that wetlands are crucial to wide-ranging natural processes, including flood control and water filtration, and provide a habitat for birds and amphibians. Even those that appear self-contained are linked to groundwater supplies that aren't constrained by state borders. It's right to include them in the broad national effort to protect America's waters from degradation.

Washington Times [WashingtonTimes.com]

LETTERS TO THE EDITOR
October 11, 2002

Wetlands aren't all washed up
F. Patricia Callahan's column "Rescue needed for property rights edict" (Commentary, Monday) fails to recognize the larger goal of ensuring that our nation's waters are protected from pollution. The legislation introduced by Sen. Russell D. Feingold of Wisconsin, Rep. Jim Oberstar of Minnesota and Rep. John Dingell of Michigan — all Democrats — works to address this goal as it relates to wetlands.
While it may appear that "isolated wetlands" are separated from all other water bodies, appearances are deceiving. Science shows that these wetlands are often connected through groundwater and form a complex freshwater web that sustains people and wildlife. The benefits they provide include controlling flood damage, filtering pollution, replenishing water supplies, improving water quality and providing wildlife habitat that fosters recreation and tourism.
The consequences of not protecting isolated wetlands are serious. Polluters will be free to discharge contaminants directly into these wetlands, potentially jeopardizing our nation's water supplies. Current discussions in the Bush administration about writing new "rules" that may withdraw protections for isolated wetlands, as well as for streams that do not flow year-round and other types of lakes and ponds, promise to further exacerbate an already dire situation.
Forty-five percent of our nation's waters are already too polluted for fishing or swimming. One can only imagine the increased damage we risk with even fewer safeguards for America's waterways.
Muddying the waters about the importance of our nation's wetlands will not change the science that supports protecting them.

MARK VAN PUTTEN
President and Chief Executive Officer
National Wildlife Federation
Washington