The American Farm Bureau Federation wishes to submit the following statement for the hearing record.
The American Farm Bureau Federation’s farmer and rancher members produce virtually every agricultural commodity grown or raised commercially in the United States. They own or lease significant amounts of land on which they depend for their livelihoods and upon which all Americans rely for food and other basic necessities. In recent years farmers and ranchers have become increasingly subjected to restrictive laws and regulations that impair their ability to farm efficiently, and, in some instances, have eliminated their ability to farm altogether. The protection of wetlands under Section 404 of the Clean Water Act (CWA) poses one of the more onerous regulatory problems production agriculture faces today.
While American farmers and ranchers have the highest production rates in the world, multiple layers of restrictive regulations at the local, state and national levels have impaired their ability to farm and ranch efficiently in an increasingly competitive global market. The type of land-use restriction placed on farmers and ranchers by such an expansive regulatory interpretation of the CWA is far beyond what Congress intended, at best creating uncertainties about permissible conduct and at worst exposing farmers and ranchers pursuing routine farming activities to substantial penalties.
Section 404 of the CWA, 33 U.S.C. § 1344, regulates “the discharge of dredged or fill material into the navigable waters at specified disposal sites.” From its inception in 1972, the Section 404 permit program has been a very controversial, complex and contentious program. Its application and misapplication to farms and farming have played a key role in its evolution.
While Congress has rejected federal land-use controls, the Section 404 wetlands program has, unfortunately proven an effective mechanism to control portions of the nation’s farming and ranching landscape. Federal agencies, especially the Environmental Protection Agency, the Army Corps of Engineers (Corps) and the Fish and Wildlife Service have expanded the reach of the Section 404 wetlands program far beyond “navigable waters” and wetlands immediately adjacent to “navigable waters.” Section 404 has become “a symbol to many Americans of how a well-intentioned legislative initiative can turn into a quagmire of disruption, frustration, and bureaucratic entanglement for ranchers, farmers, foresters, and average citizens of this country.”
The Clean Water Act authorizes the U.S. Army Corps of Engineers to exercise limited jurisdiction over navigable waters. Farm Bureau does not question the power of federal agencies to regulate the discharge of a pollutant into “navigable” interstate waterways or adjacent wetlands. Proximity to “navigable” waters is very important and clearly helps define the outer limits of federal CWA authority. In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers ET AL. 531 U.S. 159 (2001) (SWANCC), the Court limited federal jurisdiction to “navigable waters” and to wetlands immediately adjacent to “navigable waters.”
The majority and minority opinions both held that mere hydrological connection is not enough to claim federal jurisdiction and emphasized that there must be a clear and compelling connection between traditional navigability and the wetlands or waters to be regulated by federal agencies. The SWANCC decision emphasized that “navigable waters” define the limits of the Clean Water Act jurisdiction and that…
“The term ‘navigable’ has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.” The Court also stated that the Corps’…
“interpretation of the CWA, promulgated two years after its enactment, is inconsistent with that which it espouses here. Its 1974 regulations defined Section 404(a)s ‘navigable waters’ to mean “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for the use for purposes of interstate or foreign commerce.” 33 CFR Section 209.120(d)(1). The Corps emphasized that it is the water body’s capability of use by the public for purposes of transportation or commerce which is the determinative factor.” Section 209.260(e)(1).
Importantly, while the Supreme Court decided SWANCC on statutory grounds, it stated that the government’s expansive interpretation of its jurisdiction under the CWA in the “migratory bird rule” raised “serious constitutional questions.” First, there is a “significant constitutional question” whether birds supply a sufficient connection to commerce to bring all land and water used by birds within the federal government’s “commerce power.” Second, asserting such broad federal authority “would result in a significant infringement of the states’ traditional and primary power over land and water use” – power reserved to the states by the U.S. Constitution’s Tenth Amendment.
The U.S. Supreme Court in the SWANCC case clearly rejected the Corps of Engineers’ claim of Clean Water Act jurisdiction over non-navigable, isolated, intrastate waters under the Migratory Bird Rule. Of critical importance to the Court’s conclusion was the plain text of the CWA, which grants jurisdiction over only “navigable waters.” The Court found that “[t]he term ‘navigable’ has at least the import of showing us what Congress had in mind as its authority for enacting the Clean Water Act: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.” SWANCC, 531 U.S. at 172. Because the Migratory Bird Rule was based on Congress’ broader power to regulate activities substantially affecting interstate commerce – not on Congress’ “commerce power over navigation” – the Migratory Bird Rule exceeded the scope of the CWA. As the Court observed, “this is a far cry, indeed from the ‘navigable waters’ and ‘waters of the United States’ to which the statute by its terms extends.”
SWANCC clearly eliminates CWA jurisdiction over isolated waters that are intrastate and non-navigable, where the sole basis for asserting CWA jurisdiction is the actual or potential use of the waters as habitat for migratory birds. Similarly, jurisdiction cannot be based on other affecting commerce clause rationales in the Corps’ existing regulations at 328.3(a)(3)(i)-(iii) (use of the water by interstate or foreign travelers for recreational or other purposes; the presence of fish or shellfish that could be taken and sold in interstate commerce; use of the water for industrial purposes by industries in interstate commerce.) These factors, like the Migratory Bird Rule, are founded on an “affecting interstate commerce” theory of jurisdiction, not on Congress’ commerce power over navigation. Therefore, these other factors are impermissible in light of SWANCC and cannot be used as a basis for jurisdiction.
Prior to the SWANCC decision, the Migratory Bird Rule had allowed the Corps and EPA to essentially assert jurisdiction over any water, anywhere under the “affecting commerce” theory of jurisdiction. Under such a theory, field regulators did not have to determine whether something was a “tributary,” whether something was “adjacent,” or whether something qualified as an “impoundment.” Now that the Migratory Bird Rule is gone, however, the meaning of these other regulatory terms is critical. In fact, the Corps’ existing nationwide permit regulations already define the term “isolated waters” as something that is not a tributary and not adjacent, thus calling into question the meaning of these other terms. See 33 C.F.R. § 330.2(e).
The Army Corps of Engineers and the Environmental Protection Agency must conduct a rulemaking not only to define the term “isolated” but more importantly to establish clear definitions of the specific terms on which the agencies are relying to establish jurisdiction: “tributary,” “adjacent,” “impoundment,” and “ordinary high water mark.” All these terms are either vague or undefined under the existing regulations. In the absence of a rulemaking to define these terms, field regulators have unbridled discretion to make up meaning (and thereby jurisdiction) on an ad-hoc, arbitrary, and inconsistent basis.
Fundamental principles of due process and good government require the regulatory agencies to clearly and uniformly set forth the scope of federal jurisdiction. The regulated public must be given fair notice as to what conduct is prohibited under the CWA. Vague and ambiguous regulatory requirements lead to lengthy, costly and often unnecessary permitting requirements for critical public infrastructure and private projects.
AFBF believes the SWANCC decision clearly limited the scope of federal CWA jurisdiction to “navigable waters” and wetlands and other waters that abut “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.” 33 CFR Section 209.120(d)(1). In 1974, the Corps’ intent was to “emphasize that it is the water body’s capability of use by the public for purposes of transportation or commerce which is the determinative factor.” Section 209.260(e)(1). We encourage the agencies to reaffirm this position. The fact that this intent was so clearly stated so soon after enactment of the CWA reflects most accurately the intent of Congress when it enacted the CWA.
We look forward to working with you on this important issue.
 A Legislative History of the Clean Water Act of 1977: A Continuation of the Legislative History of the Water Pollution Control Act (“Legislative History”) 902 (1978) (statement of Sen. Bentsen, (D-TX))