First, I want to thank Chairman Chafee for holding this subcommittee hearing on the effects of the recent Supreme Court decisions. Federal authority to regulate discharges into “waters of the U.S.” rests on the Constitution’s Commerce Clause. The discharge must in some way impact interstate navigable waters. Many have sought to broaden this authority in the name of protecting the environment. However well-intentioned they may be, those who seek to expand federal jurisdiction must do so within the bounds of the Constitution.
We have wrestled unnecessarily with how to define the point at which the Corps and EPA exceed not just Congressional intent but Constitutional limitations since passage of the Act in 1972. In its most recent decisions on the matter, the Supreme Court has clearly sought to rein in the Corps and narrow federal jurisdiction. In the 2001 SWANCC (pronounced SWANK) decision, the Court struck down the Corps’ jurisdiction over nonnavigable, isolated, intrastate wetlands. However, the Corps and EPA failed to issue new regulations reflecting the Corps decision instead pursuing case-by-case analyses for these areas.
In June of this year, the Court again visited the question of where the limits on federal control over local land use decisions lie. While the Court did not go as far as I believe it should have, in its Rapanos decision, the Court ruled that the Corps had overstepped its authority by regulating areas as wetlands over which it has no jurisdiction. The plurality issued a strong defense of the Constitution. Justice Kennedy agreed that the Corps had overreached and sent the case back to the sixth circuit for rehearing. In doing so, Justice Kennedy stated, “[the dissent] concludes that the ambiguity in the phrase ‘navigable waters’ allows the Corps to construe the statute as reaching all ‘non-isolated wetlands’. . . This, though, seems incorrect.”
The Clean Water Act in addition to protecting navigable waters also protects the rights of the states to regulate and oversee waters within their borders. State and local governments are fully able to step in and protect these waterbodies as they see fit. Indeed, in most cases this is the most appropriate means of protecting these areas. There are state and local environmental regulatory programs for isolated waters in 35 states. While many would argue that these are lacking resources, states have not stepped up to protect these areas because they have not needed to. They have yielded their authority to a federal bureaucracy all too eager to expand its power to regulate local land use. This trend must be reversed.
Most of these intrastate, nonnavigable areas are on private property. Behind me are some pictures of these intrastate nonnavigable areas. I say areas because you will notice that most of them are dry. The Constitution protects the right of the property owner to develop that property as he sees fit. The determination that a dry wash is a wetland immediately devalues that the land and infringes on the right of the individual to use his land. Numerous state and local permits and regulations govern, as appropriate, the development of these properties. The decision on how to use these resources most appropriately belongs at the state and local levels of government where land use and community planning decisions belong.
For those who might argue, that this is just those property rights people being paranoid, here is a quote from a letter that EPA Region 9 recently sent to the area Corps office arguing that more federal intrusion was needed into development projects that have the support of the local communities and the state in which they are planned, "Through our permitting programs, the federal government is playing a central role [in this development]." It is not the right or responsibility of the federal government to play a central role in any development. How we define “waters of the U.S.” is critical to protecting the rights of citizens, local governments and states to regulate the use of their lands. I hope the EPA and the Corps will issue a new definition consistent with the Rapanos/Carabel decision that fully accounts for the constitutional limitations on their authority.