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On August 1, the Senate Environment and Public Works Committees Fisheries, Wildlife and Water Sub-committee held a hearing on Rapanos v. U.S., the 4-1-4 Supreme Court decision redefining the scope of federal jurisdiction over wetlands under the Clean Water Act (CWA). The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) have issued intermediate guidance to their field staff, instructing them to continue processing CWA '404 permits, but to temporarily delay making jurisdictional calls. EPA and the Corps are working on joint guidance clarifying CWA jurisdiction. While the Committee agrees that the failure to swiftly act to clarify the scope and meaning of the Rapanos decision will result in a costly quagmire of litigation, they disagree on whether or not Congress should clarify the scope of federal CWA jurisdiction, or whether the agencies should redefine the scope of their jurisdiction through a rulemaking. Legislation to clarify CWA jurisdiction (S. 912 and H.R. 1356), it is not currently Chairman James Inhofes (R-OK) top priority.
In his opening statement, Senator Inhofe argued that federal wetlands jurisdiction stems from the federal Commerce Clause power over interstate navigable waters, noting: [T]hose who seek to expand federal jurisdiction must do so within the bounds of the Constitution. Moreover, he cautioned against infringing on property owners’ development rights. He explained, “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 decision that fully accounts for the constitutional limitations on their authority.”
Senator Lisa Murkowski (R-AK) suggested the Congress allow the agencies to clarify the scope of their own jurisdiction over wetlands through rulemaking, noting: [T]here are times when allowing another entity to make the first move can be productive, and I believe this is one of those times. Additionally, she cautioned against too powerful a federal role, pointing out that Alaska’s Constitution protects wetlands by requiring sustainable use management of resources. The resulting pollution controls are among the nations strictest. Notably, Alaska’s Constitution was drafted in response to decades of federal mismanagement.
Senators Hillary Rodham Clinton (D-NY) and Jeffords (I-VT) disagreed, arguing that Rapanos was harmful to wetlands conservation and contrary to Congressional intent, calling for Congress to clarify the CWA. In addition, they have joined Senators Frank Lautenberg (D-NJ), Barak Obama (D-IL) and Russ Feingold (D-WI) in signing a letter asking the Bush Administration to rescind its no net loss wetlands policy. We urge you to remove this nation’s biggest obstacle to wetlands protection by rescinding the guidance you issued which eliminates protections for wetlands. The letter advocates an overall increase.
John Cruden, Deputy Assistant Attorney General, Environment and Natural Resources Division (ENRD), U.S. Department of Justice (DOJ), discussed ENRD’s extensive CWA docket and the ramifications of the Rapanos decision. ENRD has convened an internal group of experienced attorneys to [assemble and review] cases which could be impacted by the decision. He explained that ENRD would only take legal positions consistent with the Rapanos decision. As for the scope of its wetlands jurisdiction, DOJ is asking courts to adopt the view of either the plurality or Justice Kennedy’s concurrence. He added, DOJ will continue to cooperate with the states.
Another witness, Jonathan Adler, Professor of Law, Case Western Reserve University School of Law, argued that despite the divided opinion, Rapanos did resolve much of the confusion surrounding the CWA. Specifically, when viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds, the Rapanos holding requires a significant nexus between a wetland and navigable waters to trigger federal jurisdiction, clarifying that a mere hydrologic connection by itself is insufficient. Adler urged the agencies to limit their jurisdiction to areas where there is an identifiable federal interest, and not discourage state and local governments from adopting environmental protections where such efforts would be worthwhile. He believes a federal incentive program would better promote wetlands conservation. |
