Good morning and welcome to hearing of the Fisheries, Wildlife, and Water Subcommittee. Today, we will be receiving testimony on wetlands regulation and issues raised by the Supreme Court SWANCC decision.
In January of 2001, the Supreme Court overturned an agency interpretation that took a broad jurisdictional view of section 404 of the Clean Water Act. In ruling that the Corps and EPA no longer had jurisdiction over isolated intrastate waters, the Court fundamentally changed the 404 wetlands regulatory program. Developers and others in the regulated community often complain of the Corps’ red tape. But this same bureau seems to be about as efficient at protecting wetlands as it is at expediting permits.
The Reality of the 404 Program
In the Clean Water Act, Congress clearly chose to “recognize, preserve and protect the primary responsibilities of States…to plan the development and use of land and water resources (33 USC §1251(b)). As a former state water law attorney, I couldn’t agree more strongly.
While I believe that the broad jurisdictional view is inappropriate and found unlawful in SWANCC, I am going to temporarily set aside those concerns today and I would like to focus my comments on the Corps of Engineers and their implementation of the 404 program.
The Corps’ regulatory budget is about $150 million a year. Compare this with the agencies total budget of $4.6 billion. There are approximately 1450 full time employees in the regulatory program. There are more than 100 million acres of wetlands in the lower 48 states. If Corps employees did nothing but monitor those wetlands, they would supervise 69,000 acres apiece. One could argue that the budget and resources Congress gives the Corps’ regulatory program is a reliable indicator of Congressional intent, particularly with respect to the scope of the program.
Given the structure, level of funding and personnel resources provided for 404 program, it is not particularly surprising that the 404 program has not been more effective in conserving our nation’s wetlands.
In addition, the Corps was not created nor has it evolved as a regulatory agency. Fundamentally, the Corps of Engineers is just that, engineering agency. Given its history, organization, and available resources, it is unlikely that the Corps will ever be capable of regulating, effectively or otherwise, all the waters of the United States that could affect commerce.
The benchmark of discussion about the Corps jurisdiction should not begin with the sweeping jurisdiction bestowed upon itself with the migratory bird rule. But needs to begin with clear and unambiguous criteria that are commensurate with both Federal resources and the Federal interest to ensure that the Corps' resources are targeted toward those waters which are most important to the Federal government.
I would also like to point out that the Clean Water Act is not the only Federal law standing between the wetlands and certain destruction.
There are numerous other Federal programs related to wetlands. For example, SWANCC did not affect the Federal government's commitment to wetlands protection through the Food Security Act's Swampbuster requirements, the Conservation Reserve Program, the Wetlands Reserve Program, the Partners in Wildlife Program, the Coastal Wetlands Restoration Program, the Five Start Restoration Program, the National Estuary Program, and programs under the North American Wetlands Conservation Act and Migratory Bird Conservation ct
Clear rules on Federal jurisdiction under Section 404 are also important to ensure that these other Federal programs can properly prioritize their resources. For example, the Agriculture Department’s Wetlands Reserve Program reauthorized by the Farm Bill is expected to enroll 250,000 acres a year. In order to ensure that programs such as the Wetlands Reserve Program maximize environmental benefits, they should be designed to be complementary with the 404 Program. Until other Federal agencies understand the scope of jurisdiction under the 404 Program, it will be difficult, if not impossible, to effectively prioritize these other programs to ensure maximum wetland protection.
The current situation has created confusion and chaos not only for the regulated community but also for the States. States have a principal role to play in environmental protection. As the Supreme Court noted in the SWANCC decision, granting the Corps and EPA such sweeping jurisdiction “would result in a significant impingement of the States’ traditional and primary power over land and water use.”
At the time of the decision many States already had robust wetland protection programs. Since then, several other States, notably Ohio and Wisconsin, have also passed legislation to address isolated waters in light of the SWANCC decision.
It’s important to note that the confusion that has festered for the last 2 years is not only detrimental to individuals in the regulated community; it is also detrimental to the environment. The longer that the jurisdiction of the Corps remains vague and unresolved, the more likely it is that truly valuable wetlands will elude the protections of all the Federal and state programs designed to protect them.