Mr. Chairman, today this subcommittee is holding a hearing of special significance. First, it is the first wetlands hearing in our subcommittee since we have unified Clean Water Act issues under our jurisdiction. Second, the issue of wetlands under the Clean Water Act is one of national importance.
Wetlands, come in many forms, including swamps, fens, marshes, bogs, sandflats, sloughs, prairie potholes, playa lakes, to name a few. These areas are priceless resources because each of them performs irreplaceable services for the environment, and they do it for free. All we have to do is leave them alone and they do their job flawlessly, 24-7. They never ask for a vacation or call in sick. They just work. Mankind, with all of our advanced science, cannot build workable substitutes for most wetlands, not at any cost.
Today’s hearing focuses on a particular type of wetland known as isolated, intrastate, non-navigable waters, sometimes referred to as “isolated waters.” Although they can look insignificant, isolated wetlands perform numerous functions. They provide habitat for aquatic species of plants and animals and drinking water for many others, they help recharge aquifers, and they provide stopover points for migratory birds in transit.
The question before us is whether federal authority under the Clean Water Act, as interpreted by Corps of Engineers in the Migratory Bird Rule, protects these isolated waters from destruction. The Supreme Court has said it does not. Therefore, it is up to us to either help the Environmental Protection Agency and the Corps of Engineers interpret their authority correctly, or to provide them with the authority they need.
The Supreme Court does riot deny that isolated waters perform a variety of important functions - that migratory birds travel interstate, that the loss of isolated waters could imperil the survival of certain species of migratory birds, or that significant economic factors rely on migratory birds. The only thing the Supreme Court has said is that the Migratory Bird Rule goes beyond the authority created by the Clean Water Act.
I would suggest the reason the Clean Water Act was limited to “navigable waters is a function of earlier statutes, and the early Supreme Court rulings on the limitation of the commerce clause of the constitution. As legal historians will tell you, the first federal statute dealing with water pollution was the Rivers and Harbors Act. The principal goal of that statute was ensure that commerce was not hindered by floating debris in the nation’s rivers and harbors. In the years since the Rivers and Harbors Act, many new laws have been enacted.
The original Clean Water Act was enacted in 1948 and became the basis for broad new efforts to address water pollution. That Act has been broadened repeatedly as additional needs and problems have been identified.
Over the years the Supreme Court’s interpretation of the commerce clause has also evolved. Of particular importance to this hearing is the concept of “aggregation” - the idea that acts which are individually immune to Federal authority may become susceptible to such authority when considered “in the aggregate.” And I would suggest that the destruction of isolated waters is just such an issue. Individual isolated waters are typically intra-state, and destroying any one of them is unlikely to have a noticeable impact on interstate trade. So, when viewed individually, isolated waters do not seem to fall under federal authority under the Commerce Clause. However, if enough of them are destroyed it is indisputable migratory birds will be devastated, and that would damage interstate commerce. For this reason, when viewed “in the aggregate”, isolated waters do seem to be subject to Federal authority.
I think that we are presented with a significant problem related wetlands protection in the Clean Water Act - one that this hearing should investigate fully and seek to remedy. During his election campaign, President Bush promised that there would be no net loss of wetlands under his administration. A majority of the states are in favor of restoring the previous or abiding by the narrower definition enunciated by the Supreme Court. Very few states are looking for further erosion of wetlands protection. I look forward to working with the subcommittee to help keep the President’s promise.