406 Dirksen EPW Hearing Room

L. Michael Bogert

Counsel, Governor of Idaho

Letter to Administrator Whitman


Attachment 1



Attachment 2

Mr. Chairman and Distinguished Members of the of the Committee: My name is Michael Bogert, and I am Counsel to Idaho Governor Dirk Kempthorne.


Unfortunately, the Governor could not join the Committee today, but he asked me to extend his warmest regards to his good friends in the Senate.


Mr. Chairman and Members, I appreciate the opportunity to give you and the Distinguished Senators on the Committee Governor Kempthorne’s perspective on the SWANCC decision and what it means to the State of Idaho.


As an initial matter, Idaho is generally comforted by that section 101 of the Clean Water Act declares that “it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution [and] to plan the development and use of land and water resources.”


This statutory declaration, for Idaho, is the ideological lens by which we will view any attention by Congress to the Clean Water Act in the aftermath of the SWANCC decision.


However, we would be remiss if we did not acknowledge how much we appreciate the chance to even offer our perspective on this important decision by the Supreme Court to the Committee today, as well as to the federal executive branch agencies wrestling with this complex issue.


Through the advance notice of proposed rulemaking - or ANPR - the President has signaled he is approaching this problem from a decidedly different direction.


Through the ANPR, the Bush Administration has stated that it does not have all the answers up front, but it wants to sure to ask all of the right questions. And Mr. Chairman, a little humility by the federal government on this is a good thing.


The Administration is also saying that it is keenly aware that the SWANCC decision will have an impact on key partners – such as the States – in Clean Water Act implementation, and that even before a proposed rule is in order, the federal agencies want an idea of what looms on the horizon for its administrative decision making.


Governor Kempthorne appreciates this approach taken by the President.


I have submitted the Governor’s very brief comments on the ANPR for purposes of today’s record.


To provide the Committee with some very brief background, Idaho does not presently administer a delegated Clean Water Act program under section 402 for National Pollutant Discharge Elimination System (NPDES) permits.


We are presently exploring whether an NPDES program makes sense for our state, so, as of this moment, Idaho is not a participant in this familiar model of “cooperative federalism.”


But that doesn’t mean we are not accomplished practitioners of both cooperation and federalism.


Addressing cooperation, just last week we forged a second agreement in three years with the region’s Governors on salmon recovery, and this past legislative session we paved the way under our law for federal/state wolf management.


We are pleased to hear today from the Assistant Attorney General that the Justice Department shares the value of partnering with the States to advance our mutual interest on environmental protection.


On the federalism side, you will hear no greater champion for state’s rights than Governor Kempthorne.


Indeed, one of the core values we bring to this debate is that the best achievable results in environmental regulation occur where the federal government not just joins, but partners with state and local decision makers to avoid the consequences of top-down regulation.


Our experience in Idaho is that the best results are achieved from the ground up.


Accordingly, our first inclination is to reject the notion that in Idaho, there is suddenly a regulatory “void” that must be filled by the federal government in light of the SWANCC decision.


We have often found in discussions with some constituencies that when the topic of state control over environmental programs is mentioned, there is a fundamental distrust of putting states in the driver’s seat.


Governor Kempthorne categorically rejects that premise, and if there is any doubt about the commitment of the Great State of Idaho to controlling water pollution, let me provide the Committee with the following legislative prose from our state water quality control statute:


“The legislature, recognizing that surface water is one of the state’s most valuable natural resources, has approved the adoption of water quality standards and authorized the director of the department of environmental quality … to implement these standards. … [I]t is the purpose of this chapter to enhance and preserve the quality and value of the surface water resources of the state of Idaho … .

In consequence of the benefits to the public health, welfare, and economy, it is hereby declared to be the policy of the state of Idaho to protect this natural resource by monitoring and controlling water pollution.”


Governor Kempthorne signed this legislation in 2001, and I doubt a stronger commitment to preventing water pollution can be found in any state statute.


But as the Committee and Congress deliberate over its response to the SWANCC decision, it is important to have a better understanding of the backdrop of the case and why the Supreme Court ended up taking the case in the first place.


The petitioner, a coalition of municipalities, had been trying to secure a non-hazardous landfill site during the mid-1980s. They purchased a 533-acre site which once accommodated gravel and strip mining.

In the decade plus long process of working on the project, the coalition, known as SWANCC, received all the necessary state and local zoning permits, in addition to a land fill development permit from the Illinois EPA, as well as passing a review by the Illinois Department of Conservation, who approved their mitigation plan for certain bird species.


The petitioners asked the Army Corps of Engineers not once, but on two separate occasions within a year’s period whether they needed permits under section 404 of the Clean Water Act. Each time the Corps responded that they had no jurisdiction over the landfill site.


Then, when alerted by an environmental organization that the site may have briefly been home to some migratory birds, the Corps changed its mind and asserted that under the “migratory bird rule,” the landfill site included “waters of the United States” and that a section 404 permit was necessary.


SWANCC then applied for the section 404 permit and was denied on two separate occasions. Along the way, the coalition obtained two separate water quality permits under section 401 of the Clean Water Act from the state agencies with responsibility over those programs.


Nonetheless, the Corps twice denied the section 404 permit even though several years earlier they believed they had no jurisdiction whatsoever over the land fill.


Those were the facts the Supreme Court had before them when they considered the migratory bird rule, and the rest is now history in the Supreme Court Reporter.


Mr. Chairman and Distinguished Senators, as you consider this issue, it is vitally important that the past sins of the federal government I have just described not be born on your progeny.


Exercise your Commerce Clause authority carefully, and ask if the answer is really extending the jurisdiction of the federal government to the curbs and gutters of our streets, as is apparently occurring in San Diego? We don’t think this is necessarily the part forward.


Also, does the Corps have the resources necessary to implement such a program?


However, it is vitally important that Congress consider what the Supreme Court said in SWANCC.


One argument is that SWANCC was merely a regulatory interpretation case and that its holding should be narrowly construed by the agencies and Congress.


However, the Supreme Court went out of its way to dust off its two major Commerce Clause cases, Lopez and Morrison, and indicated that this decision also could have gone in that direction.


As you formulate a response to the SWANCC decision, you should be mindful that the Court’s current Commerce Clause jurisprudence lurks nearby.


From our vantage point in the Governor’s Office in Boise, Idaho, the lessons of Lopez, Morrison and SWANCC are not that Congress cares more than states about guns in school, violence against women, or water pollution.


Rather, Governor Kempthorne would submit to his former colleagues that real achievement in addressing those noble policy goals should include those in the framework of our federal system of government who bring the most promise to achieving results.


In our view, those achievers are States such as Idaho.


Thank you Mr. Chairman and Members.