Today’s oversight hearing on the federal definition of waters of the U.S. is very important given the over 35 years of debate that has surrounded it. There has been considerable litigation and confusion over the question of where exactly federal jurisdiction ends under the Clean Water Act since the Act’s passage. I am pleased to have the opportunity today to clarify the record that in fact the regulated community has never understood where federal jurisdiction ends and that the Agencies have in fact gradually expanded the scope without going through the necessary processes to increase federal reach into local land use decisions.
Many argue that if we just return to the regulatory definition prior to the Supreme Court’s landmark SWANCC case all of the confusion would end. However, those who take such a position fail to acknowledge the 29 years of litigation and expanded reach that preceded the SWANCC decision. I would like to enter into the record a letter to Chairman Oberstar from the Waters Advocacy Coalition that explains in great detail the regulatory history prior to the Supreme Court’s 2001 decision.
I am very pleased that today we will hear from one of the attorneys who represented SWANCC in the lead up to the Supreme Court case. We will also hear from an attorney with the National Association of Home Builders whose members are frequent applicants for federal permits. I would also like to call the Committee’s attention to testimony heard before the Committee in June of 2003 by Robert Pierce. We were unable to fit him in this time but his testimony as a former employee of the Corps of Engineers’ regulatory branch is still very much relevant and I urge my colleagues to give it another look.
There was a SWANCC decision because there was uncertainty. The regulated community believed that the Corps had overstepped its authority under the statute. Importantly, the Supreme Court agreed, striking down the Corps’ use of the Migratory Bird Rule to exert jurisdiction over isolated, nonnavigable, intrastate waters that clearly did not support interstate commerce, the basis for the Clean Water Act’s regulatory authority.
We can balance environmental protection with the rights of private property owners. I very much support the goal of protecting and preserving our wetlands. I have in fact championed wetlands protection through programs like the Partners for Fish and Wildlife Act and the North American Wetlands Conservation Reauthorization Act. The Partners program delivers habitat improvement projects on private land through voluntary agreements with private landowners. Through the Partners program, from 1987 to 2006, 800,000 acres of wetlands were restored. The North American Wetlands Conservation program leverages federal dollars with state and private dollars to conserve wetlands as habitat for migratory birds and other fish and wildlife.
While these programs hold the rights of the property owner sacred and work with landowners to protect our environment, the 404 permitting program is a federal regulatory program with the ability to impose often burdensome requirements that may devalue an individual’s property. Certainly there is an important role for the regulatory program but because it often comes with significant economic costs and time delays, it is critical that the program be clear and makes sense to your average property owner. For instance, the pictures to my right show areas declared jurisdictional by the Corps. Your average landowner is not going to know that these dry patches of land would be considered wetlands and require a permit from the federal government. Further, if the Clean Water Restoration Act that is currently pending before our Committee passes, every homeowner in the country is unlikely to realize that their storm gutters could be designated point sources for which they will need federal Clean Water Act permits.
This incredible expansion of federal jurisdiction under the Clean Water Restoration Act directly contradicts not just SWANCC but also Carabell/Rapanos in which a majority of the Court ruled that there are limitations to Congress’ power under the Clean Water Act.
The federal government owes it to the American public and individual property owners, including the millions of homeowners across the country, to have a clear, concise and Constitutional definition of “waters of the United States.” The Clean Water Restoration Act does not meet any of these goals and will simply result in more lawsuits and more confusion. I would like to note for the record that this is not a legislative hearing on that legislation and I will insist on a hearing specifically on that bill before any attempt is made to move it. I look forward to today’s testimony and setting the record straight with regard to the history of 35 years of confusion regarding what “waters of the U.S.” really means and the Constitutional limits of the Clean Water Act and the Commerce Clause.