Chairman Inhofe, Senator Jeffords, and Members of the Subcommittee, I am pleased to be here today to discuss the Department of Justice’s response to the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), colloquially known as “SWANCC.” In my testimony today, I will describe our work in connection with the Clean Water Act (“CWA”), the interpretation of which was at issue in SWANCC, and the efforts that we have made to ensure that the positions that we have taken in litigation are consistent with SWANCC. I will also highlight some of the work that we are doing with the States to improve State-federal coordination and cooperation in wetlands protection and enforcement.
At the outset, I would like to provide the Subcommittee with a perspective on the breadth of our work. The Environment and Natural Resources Division has a docket of well over 10,000 pending cases and matters, with cases in every judicial district in the nation. The majority of our cases are defensive, i.e., where we are defending the United States or particular federal agencies when they have been sued. Although some of these defensive cases involve the CWA, many more do not. In fact, we litigate cases arising from well over 70 different environmental and natural resource statutes, including the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the National Environmental Policy Act, the National Forest Management Act, the Coastal Zone Management Act, and the National Historic Preservation Act.
Even if one were to focus only on the affirmative enforcement part of our docket, wetlands cases form only a very small subset of those cases. We have many other enforcement actions focusing on violations of other provisions of the CWA, not to mention of the Clean Air Act, the Safe Drinking Water Act, the hazardous waste laws and a variety of other environmental laws. This enforcement work has resulted in significant gains for public health and the environment across the United States.
However, I will focus my testimony today on our CWA cases, in particular those involving wetlands.
AN OVERVIEW OF OUR CLEAN WATER ACT DOCKET
The Department of Justice’s primary role with regard to the CWA is to represent the Environmental Protection Agency (“EPA”), the Army Corps of Engineers (“Corps”), and any other federal agency that might be involved in litigation that arises pursuant to the CWA. This litigation can be either defensive or affirmative.
As the word suggests, in defensive litigation we defend federal agencies that are being sued in connection with the CWA. Such actions can take a variety of forms. For example, affected parties will sometimes bring an action against the Corps when it makes a case-specific decision, such as the grant or denial of a CWA permit. Regulated entities, environmental interests, and public entities such as municipalities will also seek judicial review when the Corps and EPA make broader policy decisions such as those embodied in a rulemaking. Parties may also sue EPA for failure to perform a non-discretionary duty under the CWA. Finally, Federal agencies can also be sued for discharging pollutants into waters of the United States if they have not complied with the applicable requirements of the CWA. In my Division, which is the Environment and Natural Resources Division, we have an Environmental Defense Section that specializes in defending the actions of federal agencies, including EPA and the Corps, when they are challenged in court in connection with the CWA.
We also bring affirmative litigation under the CWA. By “affirmative litigation,” I am referring to enforcement cases, which can be either civil or criminal. Three sections in the Division handle CWA enforcement actions. Civil enforcement cases are generally handled by our Environmental Enforcement Section, with the exception of cases brought pursuant to CWA section 404, which are handled by our Environmental Defense Section or by U.S. Attorney’s Offices. Criminal enforcement of the CWA is handled by our Environmental Crimes Section, usually in conjunction with local U.S. Attorney’s Offices.
CWA civil judicial enforcement actions generally begin with a referral or investigation from another federal agency, whether it is EPA or the Corps, regarding alleged violations of the CWA. Often by the time we receive a referral, the agency in question has exhausted all avenues for resolving the dispute administratively, and has carefully considered whether judicial enforcement is the appropriate course of action. Upon receiving the agency’s recommendation, we conduct our own internal, independent inquiry and analysis to determine whether there is sufficient evidence to support the elements of the offense and whether the case is otherwise appropriate for judicial action. If we determine that judicial enforcement is warranted, we also explore possibilities for achieving settlement of the alleged violations without litigation as appropriate.
I refer to “judicial enforcement” for a reason. The vast majority of environmental violations, including CWA-type violations, are addressed and resolved by state and local governments. In the wetlands area, most federal enforcement of the CWA occurs at the administrative level and is carried out by the EPA and the Corps, and does not involve the Department of Justice. In this regard, I commend the Corps for implementing an administrative appeals process that allows landowners to seek further review of jurisdictional determinations. This process helps to ensure nationwide consistency in the implementation of the CWA and is yet another means by which disputes over CWA jurisdiction may be resolved before a matter gets to the point of potential litigation, which is when the Department of Justice would get involved.
In sum, the Division’s work is only a small, albeit important, part of CWA implementation and enforcement more generally. For instance, in the last five years, the United States has filed on average 14 new wetland civil enforcement cases each year, with half of those cases being settled at the time of filing.
OUR RESPONSE TO SWANCC
SWANCC was an example of defensive litigation. In that case, the Corps of Engineers had asserted jurisdiction over a series of small ponds in Illinois, which the record indicated were isolated, intrastate, and non-navigable, and determined that the CWA required that the petitioner in that case, the Solid Waste Agency of Northern Cook County, needed to obtain a permit for construction of a solid waste landfill. The basis for the Corps’ assertion of jurisdiction over the isolated ponds was evidence that the ponds provided habitat for a large number of migratory bird species that cross interstate lines. However, the Supreme Court ruled that the Corps had exceeded its statutory authority by requiring a permit for the filling of those ponds. In particular, the Court held that the Corps’ practice of relying on the so-called “Migratory Bird Rule” (which is really not a rule but a preamble) to assert jurisdiction over such non-navigable, intrastate, isolated waters was contrary to Congress’ intent in the Clean Water Act.
Just as with any other Supreme Court case, we have sought to ensure that the legal positions taken on behalf of the federal government in litigation are consistent with SWANCC, regardless of where a case arises or which agency is involved in a particular case. Accordingly, after SWANCC was decided, the Division conducted a comprehensive review of its entire docket of Clean Water Act litigation. We carefully scrutinized any case that involved isolated waters, the Migratory Bird Rule, or any theory analogous to the Migratory Bird Rule, to determine whether SWANCC had undermined the basis for asserting Clean Water Act jurisdiction in that case. If we determined that the basis for jurisdiction in a particular case was undermined by SWANCC, we took appropriate action. For example, in Borden Ranch Partnership v. U.S. Army Corps of Engineers, in conjunction with EPA and the Corps, we re-examined the basis for jurisdiction over the one isolated vernal pool which had been destroyed and over which the court had determined that there was jurisdiction, and notified the Ninth Circuit that we were withdrawing our enforcement claim regarding that particular vernal pool.
In addition to taking the necessary steps to ensure that our existing cases were consistent with SWANCC, we established a process for ensuring that the positions we take in all SWANCC-related litigation going forward are internally consistent and appropriately coordinated within the federal government. Thus, in addition to the probing review of all of our prospective enforcement cases that I described earlier, we devote particular attention in our Clean Water Act enforcement cases to whether there is a factually and legally sound basis, consistent with SWANCC, for asserting jurisdiction over the aquatic resources in question before deciding to proceed. We carefully review such referrals or investigations to determine whether to proceed with judicial enforcement. We have similarly applied careful scrutiny to SWANCC-related arguments that we make in our defensive litigation.
Since SWANCC was decided in January 2001, the United States has filed briefs in at least 27 cases in which the scope of geographic jurisdiction under the Clean Water Act was a significant issue. These cases involve issues arising under the Section 402 pollution discharge permit program, the Section 311 program addressing oil discharges and the Oil Pollution Act, as well as the Section 404 program. We have made considerable efforts to review and coordinate each and every one of the briefs filed in those cases. In particular, we have assigned a team of attorneys with expertise in wetlands issues and the Clean Water Act to review all briefs addressing important SWANCC-related issues that are filed by the various trial and appellate sections within the Division. In addition to ensuring that the basic positions taken in the those briefs are internally consistent, our attorneys have also made great efforts to coordinate our positions with the appropriate agencies, primarily EPA and the Army Corps of Engineers. Moreover, our attorneys have worked proactively and cooperatively with U.S. Attorney’s Offices, to share our experiences and expertise, and to ensure that the United States is speaking with one voice in the federal courts around the country.
As I mentioned before, the SWANCC decision clearly precludes reliance on use by migratory birds as the sole basis for CWA jurisdiction over isolated, non-navigable, intrastate waters and calls into question whether any of the other factors in the Migratory Bird Rule is a valid basis for asserting jurisdiction. In addition, the reasoning of that decision raised uncertainty as to whether there remains any basis for jurisdiction under the other rationales in the “(a)(3)” provision in the agencies’ regulation defining “waters of the United States,” particularly the extent to which the agencies may rely upon the “(a)(3)” factors for purposes of regulating non-navigable, intrastate, isolated waters. Indeed, the effect of SWANCC on this aspect of the regulations is one of the subjects of the Advance Notice of Proposed Rulemaking and associated guidance issued by the Department of the Army and EPA on January 15, 2003. My colleagues from the Army and EPA will be addressing their work on this rulemaking in their testimony. But I can tell you that in none of our post-SWANCC cases have we relied upon the Migratory Bird Rule or any analogous theory under the “(a)(3)” provision as a basis for defending CWA jurisdiction over a particular site. To the extent that SWANCC raised serious doubts about any claims that we were making in litigation that was pending at the time SWANCC was decided, we withdrew or modified those claims accordingly, as I noted above.
Our careful examination of our cases has paid off with success in the courts. Of the 27 cases referred to earlier in my testimony in which we have filed SWANCC-related briefs, 22 have resulted in judicial decisions, and 17 of those decisions have been in favor of the United States. However, the post-SWANCC case law remains unsettled as we are involved in at least nine SWANCC-related cases in the Courts of Appeals for the Fourth, Fifth, Sixth, Seventh, and Ninth Circuits. With regard to these cases, I would be pleased to make available to the Subcommittee any brief of the United States that it requests.
I would like to mention another facet of our post-SWANCC activities: working cooperatively with the States. One of the basic teachings of SWANCC is that not every wetland or other aquatic area in the country is an appropriate subject of federal regulation under the Clean Water Act. Since the decision in SWANCC, some States, such as Wisconsin and Ohio, have enacted legislation providing authority to address aquatic resources not subject to federal regulatory jurisdiction under the CWA. Other States are considering such legislation or are exploring ways to use existing regulatory and non-regulatory authorities and programs to address these aquatic resources. We have made great strides to improve federal-state cooperation and coordination in environmental protection generally, and in connection with SWANCC, we are redoubling our efforts in this regard.
In particular, in December 2002, we hosted a national conference and training course on wetlands protection and enforcement, designed in cooperation with several state associations, EPA and the Corps, to facilitate federal-state partnerships in this important area. The conference, which took place in the Department of Justice training facility, attracted government officials from approximately two-thirds of the States, including representatives of state environment and natural resources agencies, state attorneys general offices, and even some state legislatures. As the conference’s keynote speaker, I stressed the importance of federal-state collaboration and cooperation in wetlands protection and enforcement in a time of dwindling government resources at both the federal and State levels. One of the primary purposes of the conference was to encourage States to take a hard look at their existing state-law authorities that may be used to protect wetlands not subject to federal jurisdiction following SWANCC and other federal court decisions, and to facilitate the exchange of information regarding new and innovative methods of addressing wetlands protection at the state level. We look forward to continuing this dialogue with our state colleagues, and to continue to explore ways that we can work together to protect this Nation’s wetlands.
In closing, I would like to assure the Subcommittee that the Department of Justice takes seriously its obligation to protect public health and the environment and to enforce and defend the existing laws. As I have described in greater detail above, we work hard to ensure that the positions we take in litigation with respect to SWANCC are consistent and coordinated with our client agencies, which is our practice with all our litigation. I would be happy to answer any questions that you may have about my testimony.