Subcommittee on Fish, Wildlife & Water

Committee on Environment & Public Works

Tuesday, June 10, 2003

Hearing on issues raised by the U.S. Supreme Court in

Solid Waste Agency of Northern Cook County V. U.S. Army Corps of Engineers

No. 99-1178

Statement of Senator Lisa A. Murkowski:

Mr. Chairman, I very much appreciate your attention to this issue. The question of jurisdiction over isolated wetlands is of tremendous importance to my constituents.

According to the U.S. Fish and Wildlife Service, my State of Alaska has more wetlands than the remainder of the United States combined – over 174 million acres of lands are designated as wetlands. That is more than 40 percent of my entire State – an area larger than the entire State of Texas.

Because of that, and by virtue of Alaska’s climate, there is virtually nowhere that one can completely avoid wetlands of one type or another. And as one might expect, this leads to significant permitting issues for almost any project in the State, from building private homes to creating a working road system to constructing a badly needed extension of a too-short runway.

A great many of these designated wetlands occur in the far north, where the nature of land that is underlain by permafrost is to form “pothole” lakes and ponds. For example, more than 80% of the 20 million acres included in Alaska’s North Slope region are classified as wetlands. While isolated potholes are certainly important waterfowl and other local fauna, they are not “navigable waters,” and have no connection to interstate commerce.

In Southeast Alaska, one finds abundant wetlands not only along the shore, but in muskeg meadows that may occur on the tops of mountains. Again, these are not “navigable waters.”

“Navigability” was the identifier that Congress used in the Clean Water Act to reach the requirements of the Commerce Clause. If waters are “navigable,” they at least have the implied potential to be of use in interstate commerce.

It is my belief that federal jurisdiction should be strictly limited. I would suggest, Mr. Chairman, that a variety of influences have led to “mission creep” in the way the Clean Water Act is applied.

I applaud the Supreme Court for taking this issue on, even in so narrow a sense as in the Northern Cook County case.

No State should ignore its responsibility to ensure that activities within its borders are undertaken in a way that is sensitive to the needs of the environment. However, the States’ jurisdiction over most such activities should also be respected by the Federal Government and its agencies.

Frankly, Mr. Chairman, I believe the Court’s opinion should be viewed as a signal for this Administration to bring the various federal agencies into harmony. I believe it should adopt both general principles and specific guidance for identifying cases where the Clean Water Act applies, and where it does not. Unfortunately, that has not happened, at least not yet.

I look forward to hearing the views of today’s witnesses.