Mr. Chairman, I want to thank you for holding this hearing. The country is deeply divided on the issue of appropriate wetlands protections, and the gap isn’t getting any narrower. For thirty years or more, the courts have wrestled with how to define “waters of the United States.” For thirty years or more, they have produced different and conflicting opinions.
When the Supreme Court heard and decided the Solid Waste Agency of Northern Cook County (SWANCC) case, it raised hopes that the country would finally get some clear guidance. Unfortunately, such guidance has not been forthcoming, either from the court, or from the agencies, or from Congress.
The SWANCC decision did provide some rays of light. First, it indicated that not all wetlands can be considered navigable waters within the meaning of the Act. That is so self-evident it is mind-boggling to think there are those who argue otherwise.
Second, it suggested that in order to be protected, a wetland must have a “significant nexus” with navigable waters. That too, seems self evident.
However, the court was reluctant to take the activist step of defining the term “significant nexus.” That task is left either for the agency or for Congress.
Mr. Chairman, there are times when allowing another entity make the first move can be productive, and I believe this is one of those times.
I don’t think there is anything at fault with the Clean Water Act itself. The Act is clear – it is the implementation that is muddy. That suggests to me that the Administration should take steps to clarify it.
This issue affects every state, but Alaska more than most, for two reasons: first, because Alaska has 174 million acres of wetlands, more than all the other states combined; and second, because much of those wetlands are vastly different in character than wetlands in other states – frozen 9 months of the year and underlain by permafrost, so their hydrologic functions are completely different.
Even the most casual observer – if willing to look at the science of wetlands management rather than the politics of it, must accept the idea that not all wetlands serve the same function, nor are they equally important in cleaning and conditioning water resources, nor are they equally important in mitigating storm damage.
Make no mistake – I am not suggesting these wetlands are without value, but that their value may stem from different considerations than those envisioned by the Clean Water Act, and cannot therefore be appropriately addressed by that Act. One size does NOT fit all.
Some people seem to believe that when it comes to wetland protection, the Clean Water Act is the only option. But that is not true.
In fact, Alaska’s wetlands would be protected without federal law, because Alaska’s Constitution mandates that its resources be managed under sustainable use principles, and the resulting pollution control statutes are among the nation’s strictest. In many ways that is purely self-interest; our Constitution was drafted in response to decades of federal mismanagement, and we knew that keeping valuable resources such as fish and game populations at useful, productive levels meant conserving their habitats, as well.
Rather than attempt to force all wetlands into a mold for which they are not well-suited, it seems better to seek to clarify their status, which can best be done by administrative rulemaking. A majority of Supreme Court justices appear to agree. Justice Breyer’s summary calls for regulations to be written “speedily.” Chief Justice Roberts pointed out that the failure to establish a rule in response to the SWANCC case helped ensure the result of the most recent cases.
The agency has had ample opportunity to act. Indeed, the Corps and the EPA began the process after the SWANCC case. Unfortunately, by the beginning of 2004, the effort was abandoned, leaving behind the limbo in which we now find ourselves.
In April, 2003, the State of Alaska provided extensive comments for the previous rulemaking attempt. Those comments continue to be of value, as they clearly explain why not all wetlands are equal. In addition, in January of 2004, after the effort was abandoned, the State registered its dismay in a letter in which the Governor noted that asserting Clean Water Act jurisdiction over all wetlands without limitation would lead to a “patchwork” of conflicting court decisions and create uncertainties for all those involved – precisely our current situation.
Mr.Chairman, if there is no objection, I would like to have both those documents added to the record for this hearing.
More recently, the State prepared yet another paper addressing this issue in the context of the most recent decision. Once again, it argues that this matter is demands a clear and consistent approach and that rulemaking is the way to achieve it.
I must agree – and would like to submit this paper for the record as well.
Thank you, Mr. Chairman. I look forward to hearing from our witnesses, and hope very much they will support the completion of a sensible and comprehensive rulemaking effort.