STATEMENT
OF MICHAEL BOGERT
COUNSEL TO IDAHO GOVEROR
DIRK KEMPTHORNE
BEFORE THE
UNITES STATES SENATE
COMMITTEE ON ENVIRONMENT AND
PUBLIC WORKS
SUBCOMMITTEE ON FISHERIES,
WILDLIFE AND WATER
June 10, 2003
Mr. Chairman and Distinguished Members of the of the
Committee: My name is Michael Bogert, and I am Counsel to Idaho Governor Dirk
Kempthorne.
Unfortunately, the Governor could not join the
Committee today, but he asked me to extend his warmest regards to his good
friends in the Senate.
Mr. Chairman and Members, I appreciate the
opportunity to give you and the Distinguished Senators on the Committee
Governor Kempthorne’s perspective on the SWANCC decision and what it
means to the State of Idaho.
As an initial matter, Idaho is generally comforted
by that section 101 of the Clean Water Act declares that “it is the policy of
Congress to recognize, preserve, and protect the primary responsibilities and
rights of states to prevent, reduce, and eliminate pollution [and]
to plan the development and use of land and water resources.”
This statutory declaration, for Idaho, is the
ideological lens by which we will view any attention by Congress to the Clean
Water Act in the aftermath of the SWANCC decision.
However, we would be remiss if we did not
acknowledge how much we appreciate the chance to even offer our perspective on
this important decision by the Supreme Court to the Committee today, as well as
to the federal executive branch agencies wrestling with this complex issue.
Through the advance notice of proposed rulemaking -
or ANPR - the President has signaled he is approaching this problem from a
decidedly different direction.
Through the ANPR, the Bush Administration has stated
that it does not have all the answers up front, but it wants to sure to ask all
of the right questions. And Mr.
Chairman, a little humility by the federal government on this is a good thing.
The Administration is also saying that it is keenly
aware that the SWANCC decision will have an impact on key partners –
such as the States – in Clean Water Act implementation, and that even before a
proposed rule is in order, the federal agencies want an idea of what looms on
the horizon for its administrative decision making.
Governor Kempthorne appreciates this approach taken
by the President.
I have submitted the Governor’s very brief comments
on the ANPR for purposes of today’s record.
To provide the Committee with some very brief
background, Idaho does not presently administer a delegated Clean Water Act
program under section 402 for National Pollutant Discharge Elimination System
(NPDES) permits.
We are presently exploring whether an NPDES program
makes sense for our state, so, as of this moment, Idaho is not a participant in
this familiar model of “cooperative federalism.”
But that doesn’t mean we are not accomplished
practitioners of both cooperation and federalism.
Addressing cooperation, just last week we forged a
second agreement in three years with the region’s Governors on salmon recovery,
and this past legislative session we paved the way under our law for
federal/state wolf management.
We are pleased to hear today from the Assistant
Attorney General that the Justice Department shares the value of partnering
with the States to advance our mutual interest on environmental protection.
On the federalism side, you will hear no greater
champion for state’s rights than Governor Kempthorne.
Indeed, one of the core values we bring to this
debate is that the best achievable results in environmental regulation occur
where the federal government not just joins, but partners with
state and local decision makers to avoid the consequences of top-down
regulation.
Our experience in Idaho is that the best results are
achieved from the ground up.
Accordingly, our first inclination is to reject the
notion that in Idaho, there is suddenly a regulatory “void” that must be filled
by the federal government in light of the SWANCC decision.
We have often found in discussions with some
constituencies that when the topic of state control over environmental programs
is mentioned, there is a fundamental distrust of putting states in the driver’s
seat.
Governor Kempthorne categorically rejects that
premise, and if there is any doubt about the commitment of the Great State of
Idaho to controlling water pollution, let me provide the Committee with the
following legislative prose from our state water quality control statute:
“The legislature, recognizing that surface
water is one of the state’s most valuable natural resources, has
approved the adoption of water quality standards and authorized the director of
the department of environmental quality … to implement these standards. … [I]t is the purpose of this chapter to enhance
and preserve the quality and value of the surface water resources of the state
of Idaho … .
In consequence of the benefits to the
public health, welfare, and economy, it is hereby declared to be the
policy of the state of Idaho to protect this natural resource by monitoring and
controlling water pollution.”
Governor Kempthorne signed this legislation in 2001,
and I doubt a stronger commitment to preventing water pollution can be found in
any state statute.
But as the Committee and Congress deliberate over
its response to the SWANCC decision, it is important to have a better
understanding of the backdrop of the case and why the Supreme Court ended up
taking the case in the first place.
The petitioner, a coalition of municipalities, had
been trying to secure a non-hazardous landfill site during the mid-1980s. They purchased a 533-acre site which once
accommodated gravel and strip mining.
In the decade plus long process of working on the
project, the coalition, known as SWANCC, received all the necessary state and
local zoning permits, in addition to a land fill development permit from the
Illinois EPA, as well as passing a review by the Illinois Department of
Conservation, who approved their mitigation plan for certain bird species.
The petitioners asked the Army Corps of Engineers
not once, but on two separate occasions within a year’s period whether they
needed permits under section 404 of the Clean Water Act. Each time the Corps responded that they had
no jurisdiction over the landfill site.
Then, when alerted by an environmental organization
that the site may have briefly been home to some migratory birds, the Corps
changed its mind and asserted that under the “migratory bird rule,” the landfill
site included “waters of the United States” and that a section 404 permit was
necessary.
SWANCC then applied for the section 404 permit and
was denied on two separate occasions.
Along the way, the coalition obtained two separate water quality permits
under section 401 of the Clean Water Act from the state agencies with
responsibility over those programs.
Nonetheless, the Corps twice denied the section 404
permit even though several years earlier they believed they had no
jurisdiction whatsoever over the land fill.
Those were the facts the Supreme Court had before
them when they considered the migratory bird rule, and the rest is now history
in the Supreme Court Reporter.
Mr. Chairman and Distinguished Senators, as you
consider this issue, it is vitally important that the past sins of the federal
government I have just described not be born on your progeny.
Exercise your Commerce Clause authority carefully,
and ask if the answer is really extending the jurisdiction of the federal
government to the curbs and gutters of our streets, as is apparently occurring
in San Diego? We don’t think this is
necessarily the part forward.
Also, does the Corps have the resources necessary to
implement such a program?
However, it is vitally important that Congress
consider what the Supreme Court said in SWANCC.
One argument is that SWANCC was merely a regulatory
interpretation case and that its holding should be narrowly construed by the
agencies and Congress.
However, the Supreme Court went out of its way to
dust off its two major Commerce Clause cases, Lopez and Morrison,
and indicated that this decision also could have gone in that direction.
As you formulate a response to the SWANCC
decision, you should be mindful that the Court’s current Commerce Clause
jurisprudence lurks nearby.
From our vantage point in the Governor’s Office in
Boise, Idaho, the lessons of Lopez, Morrison and SWANCC are not
that Congress cares more than states about guns in school, violence against
women, or water pollution.
Rather, Governor Kempthorne would submit to his
former colleagues that real achievement in addressing those noble policy goals
should include those in the framework of our federal system of government who
bring the most promise to achieving results.
In our view, those achievers are States such as
Idaho.
Thank you Mr. Chairman and Members.