TESTIMONY OF DR. SCOTT YAICH

DUCKS UNLIMITED, INC.

BEFORE THE:

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

SUBCOMMITTEE ON FISHERIES, WILDLIFE AND WATER

CONCERNING:

FEDERAL JURISDICTION OF WATERS OF THE UNITED STATES

UNDER THE CLEAN WATER ACT IN LIGHT OF THE

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY VS.

U.S. ARMY CORPS OF ENGINEERS SUPREME COURT DECISION

June 10, 2003

WASHINGTON, DC

Mr. Chairman, members of the Committee, my name is Dr. Scott Yaich. I am the Director of Conservation Programs at Ducks Unlimited, Inc.'s (DU) National Headquarters in Memphis, Tennessee. I am certified as a Professional Wetland Scientist and Certified Wildlife Biologist by the Society of Wetland Scientists and The Wildlife Society, the professional organizations of these respective scientific disciplines. I have worked for DU since 2001, and previously served as Wetlands Program Coordinator and Assistant Director for the Arkansas Game and Fish Commission for 13 years. My current duties include responsibility for overseeing DU's scientific review and response to issues related to the Clean Water Act.

I appreciate the opportunity to speak with you today on behalf of Ducks Unlimited. Our organization was founded in 1937 by concerned and farsighted sportsmen and conservationists. Our mission is to conserve, restore, and manage wetlands and associated habitats for North America's waterfowl, and for the benefits these resources provide other wildlife and the people who enjoy and value them. DU has grown from a handful of people to an organization of over 1,000,000 supporters who now make up the largest wetlands and waterfowl conservation organization in the world. With our many private and public partners we have conserved almost 11 million acres of habitat for waterfowl and associated wildlife in the U.S., Canada, and Mexico. Importantly, Ducks Unlimited is a science-based conservation organization. Every aspect of our habitat conservation activity is rooted in the fundamental principles of scientific disciplines such as wetland ecology, waterfowl biology, and landscape ecology. Thus, our perspectives on the Clean Water Act and related issues are based on our extensive grounding in these scientific disciplines, and we believe that wetland and water quality science can help bring insights to these complex issues.

WETLAND STATUS AND TRENDS

Of the estimated 221 million acres of wetlands originally present in the United States, 53% (115.5 million acres) had been lost by 1997. (Citations in support of statements of fact in this testimony are included in the accompanying report [“The SWANCC Decision: Implications for Wetlands and Waterfowl,” Ducks Unlimited, 2001] and/or in DU's comments in response to the Environmental Protection Agency's Advance Notice of Proposed Rulemaking [ANPRM], Docket ID No.OW-2002-0050.) The Clean Water Act (CWA), initially passed in 1972, is believed by many to have been an important factor in slowing the rate of wetland loss from 458,000 acres/year during the 1950s-70s. However, wetland loss still exceeds 100,000 acres/year, even in the face of CWA protections and the implementation of important voluntary, incentive-based restoration programs such as those provided through the Farm Bill's conservation titles and the North American Wetlands Conservation Act.

As a nongovernmental waterfowl habitat conservation organization, DU has a long, productive history in working with voluntary, incentive-based wetland conservation programs, both public and private. Virtually all of our habitat accomplishments have been achieved through partnerships, a large percentage with private landowners. Nevertheless, despite the successes of DU and of many other organizations and programs, the country is still experiencing a net loss of wetlands each year. These losses not only have a cumulative negative impact on the waterfowl that our million members and supporters care so passionately about and contribute so much toward, but also on the nation's water quality and related federal interests.

The wetlands of the prairie pothole region are often considered the prototypical “geographically isolated wetland.” Of the approximately 20 million potholes that once existed in the northern U.S., only about 7 million remain. While most of these wetlands are small they are critically important, and this region is the most important breeding area for ducks in North America. An estimated 50% of the average total annual production of ducks comes from the potholes, and in wet years 70% or more of the continent's duck production can originate in this region. One analysis suggested that duck production in the pothole region of the U.S. northern prairies would decline by over 70% if all wetlands less than 1 acre were lost. However, wetland losses far less than this would significantly impact waterfowl numbers, and could result in closed waterfowl seasons with related impacts. Wetlands in other areas of the country are also vital for providing the breeding, migration and wintering habitat necessary to support continental waterfowl populations.

Waterfowl are a tremendously valuable interstate and international economic resource. Almost 3 million duck and migratory bird hunters expended approximately $1.4 billion in 2001 for hunting related goods and services, with 14% of that hunting taking place in a state other than the one in which the participant resided. For example, in North Dakota, 47% of the state's waterfowl hunters in 2001 were non-residents, and in Arkansas over 42% of their 89,000 waterfowl hunters in 2002 traveled there from other states. Furthermore, commerce tied to the waterfowl resource and other wetland-associated fish and wildlife is not restricted to hunting. In 2001, 14.4 million people participated in watching waterfowl, with associated expenditures and values also measured in the billions of dollars.

FEDERAL JURISDICTION: WHY IS THE ISSUE SO IMPORTANT TO DU?

The Clean Water Act (CWA) has been an important component of the national framework of wetland conservation for over 30 years. It has been one of the more successful environmental programs in the nation's history. Many aspects of the country's water quality have improved measurably since 1972, and wetland loss rates have declined. Much of the progress in cleaning up the nation's water supplies has come in association with establishment of federal jurisdiction over waters and wetlands that directly affect the nation's water quality, including those occurring on private lands. However, due to the regulatory elements of the Act, the exertion of this authority has generated considerable regulatory and legal debate. Understanding of the relationships between wetland and water science, the purposes of the CWA, and the evolution of the Act's legislative and judicial history can help bring insights to some of the existing confusion and passions.

DU is very concerned about the potential impacts of any change in the definition of “waters of the United States” that could have the effect of lessening jurisdictional coverage of important wetlands important to waterfowl under the CWA. Such changes could rapidly negate many of the conservation benefits that our volunteers and members have worked so hard for over the last 66 years.

LEGISLATIVE AND JUDICIAL STATUS AND TRENDS

As a result of actions by the agencies, decisions by the courts, and amendments to the CWA by Congress, there has been a steady evolution of what wetlands have fallen within CWA jurisdiction over the last 30 years. Then, in 2001, the Supreme Court's decision in the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (henceforth SWANCC) invalidated one facet of the so-called Migratory Bird Rule as a sole basis for determining jurisdictional wetlands. This had the effect of confusing the scope of federal jurisdiction over which waters and wetlands are subject to Section 404 of the CWA. However, while retaining navigable waters, their tributaries, adjacent wetlands, and wetlands which cross state lines within the definition of “waters of the United States,” their decision did not make clear the new jurisdictional limits. This resulted in regulatory uncertainty, which the agencies, the regulated community, including Ducks Unlimited, and other interested parties are still trying to understand.

Nevertheless, in their SWANCC decision the Supreme Court explicitly acknowledged that “Congress passed the CWA for the stated purpose of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters.” Their decision also reaffirmed federal jurisdiction over navigable waters, their tributaries, and adjacent wetlands. They further stated that “we recognized that Congress intended the phrase 'navigable waters' to include 'at least some waters that would not be deemed navigable' under the classical understanding of that term.” They also re-stated the observation in their United States v. Riverside Bayview Homes decision that “Congress's 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.''“ The Court went on to clarify in their SWANCC decision that “It was the significant nexus between the wetlands and 'navigable waters' that informed our reading of the CWA in Riverside Bayview Homes.”

With these statements the Supreme Court seemed to clearly view the connection between wetlands and “navigable waters” as a critical determinant for exercising federal CWA jurisdiction over wetlands. Ultimately, however, their decision called into question the status of waters and wetlands that are non-navigable, geographically isolated, or intrastate, i.e., those lacking an apparent significant nexus to navigable waters.

CLARIFYING JURISDICTION: KEY DEFINITIONS

To shed light on the question of waters and wetlands that are jurisdictional in view of SWANCC, focus should be placed on the definitions of “tributary,” “adjacent,” and “significant nexus” as they relate to the interrelationships between geographically isolated wetlands and navigable waters. The regulatory definition of “tributary” seems to have achieved somewhat of a consensus in the courts over the last few decades. However, explicit clarification of this definition would be beneficial.

The previously cited recent assertions of the Supreme Court carry an implicit, but clear recognition that water quality of navigable waters is directly related to water quality in “adjacent” wetlands. The Court thus recognized wetland function as being an essential element of proximity and determination of federal jurisdiction, and accepted that adjacency carries with it the presumption of a functional relationship, i.e., a “significant nexus,” between the wetlands and navigable waters. Thus, “adjacent” is another key term requiring definition.

In light of the acknowledged interrelationship of the Court's use of the terms “adjacent” and “significant nexus,” we suggest that clarity might be advanced in practice by replacement of these two terms with a single one, “functionally adjacent.” The central issue here would be the recognition that adjacency, from the standpoint of water quality maintenance, should not be viewed as being simply limited by physical proximity, but rather viewed in terms of functional relationships. Thus, functionally adjacent wetlands could be physically distant from a navigable water (just as a surface tributary deemed jurisdictional may be located many miles upstream of a navigable water), yet its direct functional linkage to (i.e., its significant nexus with) the navigable water for purposes of maintaining water quality as directed by the CWA would remain as the central element of a jurisdictional decision.

WETLAND HYDROLOGIC FUNCTIONS AND RELATED VALUES

Wetlands provide a broad array of ecosystem functions, all carrying some measure of societal value, but those most relevant to the CWA and federal jurisdiction are the hydrologic and biogeochemical functions. Our appended complete comments on the ANPRM provide many literature citations and examples for the functions of “surface water storage and flood abatement,” “groundwater relationships,” and “water quality maintenance” performed by wetlands, thereby providing a significant nexus with navigable waters.

Virtually all wetlands improve the quality of water that they receive and then discharge. Evidence of the societal value of those water quality services is demonstrated by the actions of New York City to initiate a $250 million program to acquire and protect up to 350,000 acres of wetlands and riparian lands in the Catskills. The city is taking this action to protect the quality of its water supply as an alternative to constructing water treatment plants which could cost as much as $6-8 billion. In South Carolina, the wetland services provided by the Congaree Swamp negated the need for a $5 million wastewater treatment plant.

All wetlands provide surface water storage and flood abatement functions, and the cumulative impacts of wetland loss have recently been seen in prominent examples of flooding on the Red, Missouri and Missisippi rivers. As another example, small pothole basins in the Devil's Lake watershed in North Dakota could store 72% of the total runoff from a 2-year frequency flood and approximately 41% of the total runoff from a 100-year frequency flood. To illustrate the recognition of the societal values associated with this flood abatement function, the city of Boston is acquiring 5,000 acres of wetlands in the Charles River watershed to avoid the necessity of constructing a $100 million dam for flood control. In a related study, the U.S. Army Corps of Engineers determined that flood damages would increase by $17 million per year if the 8,400 acres of wetlands in the Charles River basin were drained. Thus, apparently geographically isolated wetlands are often in fact functionally adjacent to navigable waters that are clearly jurisdictional from the perspective of the CWA and other federal interests, such as flood control.

Finally, there are many examples of the direct functional linkages via groundwater connections between water in wetlands with that of navigable waters. Isolated and other wetlands very often contribute to groundwater recharge, and this groundwater then continues to move downslope toward intermittent or flowing streams ultimately terminating in navigable waters. For example, 20-30% of the water loss from prairie wetlands can be seepage to groundwater. Subsequent groundwater discharge into flowing streams over 16 miles away from these isolated wetlands has been documented. The sandhill wetlands of Nebraska have direct linkages to the High Plains (Ogallala) aquifer and rivers such as the Platte and Missouri through groundwater recharge from the surface and subsequent discharge to the rivers. Thus, the demonstrated linkages between geographically isolated wetlands, groundwater, and navigable waters supports the contention that adjacency and significant nexus for determining jurisdictional wetlands should be interpreted from a functional perspective if water quality is to be protected as intended by the CWA.

IMPLICATIONS OF REDUCING JURISDICTIONAL WETLANDS

There would be significant implications to the status of wetlands, and waterfowl and other associated resources, if Clean Water Act protections are removed from a broad spectrum of wetlands. If hydrologic links between wetlands and navigable waters are recognized when defining “adjacency,” “tributary,” and “significant nexus,” then the CWA might continue being a factor in stemming wetland loss. However, if these terms are not defined in a hydrologic context, the number of wetlands afforded Section 404 protection will unquestionably decrease and have a significant negative effect on waterfowl populations. For example, the appended DU 2001 report estimated that 96% of the wetlands and 86% of the wetland acreage in the prairie pothole region might no longer be considered jurisdictional under the CWA. Even a very small increase in the annual rate of wetland loss could elevate loss rates to the high levels of the 1950's to 1970's, approximately 450,000 acres/year, and move the nation even farther away from achieving President Bush's goal of no-net-wetland loss.

CONCLUSION

Rule-making decisions hinging on the definitions of “isolated wetland,” “adjacent” and “significant nexus” have the potential to reverse 3 decades of progress in slowing the rate of net wetland loss and degradation. While DU strongly supports the use and expansion of an incentive-based approach to wetlands conservation, state, federal and non-governmental conservation programs are unlikely to be funded at levels sufficient to offset these losses. Ducks Unlimited agrees with much of the rest of the regulated community that, in light of the uncertainty and confusion introduced by the SWANCC decision, clarification of jurisdictional wetlands and waters is important and overdue. However, we believe that this clarification can be expeditiously provided through administrative guidance processes of the agencies. We believe that administrative definition of the terms important to determining “waters of the U.S.” should be strongly based on the related wetland and water quality science to address the existing scope of the Clean Water Act. This would at least restore the level of certainty and stability in the regulatory process and the level of wetlands protection that existed prior to SWANCC. In any case, changes to the administration of the Act, proposal of a rule, or amendments to the Act should only be undertaken if they strengthen protection of the Nation's wetlands.

Thank you for this opportunity to present our views on this issue, one that is central to the mission of our organization and the commitment of our million members, volunteers and supporters. Please do not hesitate to call upon us for any reason regarding these important issues. I would be happy to try to answer any questions you might have.