The Wildlife Management Institute (WMI) is pleased to submit written
testimony for the hearing entitled, “Current regulatory and legal status of federal jurisdiction of navigable waters
under the Clean Water Act.” Founded in
1911, WMI is a non-profit scientific and educational organization staffed by
experienced resource management professionals who are dedicated to improving
the management of wildlife and wildlife habitats. The Institute has a long history of working to conserve our
Nation’s wetlands through oversight and support of state and federal wetlands
programs, particularly section 404 of the Clean Water Act (CWA) and Swampbuster
provisions in the Federal Agricultural Policy Legislation (Farm Bill).
For your review are the comments we sent
to the Environmental Protection Agency (EPA) and the U.S. Army Corps of
Engineers (COE) in response to the January 15, 2003, “Advance Notice of Proposed Rulemaking on the Clean Water Act
Regulatory Definition of ‘Waters of the United States’” (ANPR). In summary, WMI asserts that under CWA:
·
Jurisdictional
determinations should focus on the hydrological or functional relationships
among wetlands and other waters of the U.S.;
·
The Supreme
Court’s ruling on the Solid Waste Agency
of Northern Cook County v. United States Army Corps of Engineers et al.
case does not restrict EPA or COE from considering the Migratory Bird Rule when
making jurisdictional determinations; and
· EPA and COE must assess the “aggregate effect” of discharges of dredged or fill material on interstate commerce, opposed to looking at only the effect of regulating a particular wetland fill.
2. Whether, and, if so, under what circumstances, the factors listed
in 33 CFR 328.3(a)(3)(i)–(iii) or any other factors provide a basis for
determining CWA jurisdiction over isolated, intrastate, non-navigable waters?
Our
understanding of the factors listed in 33 CFR 328.3(a)(3)(i)-(iii) is that they
already do not exclude any other factors that provide a basis for determining
CWA jurisdiction over the waters subject to this provision. Nevertheless, the three factors listed fail
to capture the breadth of the effects on interstate or foreign commerce that
could result from the destruction or degradation of the waters subject to
paragraph (3). Reliance on these
factors alone would lead to erroneous conclusions concerning the nexus between
the discharge of dredged or fill material into these waters and resulting
effects on interstate commerce. Any
determination as to whether a significant nexus with interstate commerce
results from discharge of dredged or fill material into waters subject to 33
CFR 328.3(a)(3) must be based on the hydrological and functional relationships
of those waters to other waters of the U.S.
The
Clean Water Act (CWA) sets forth an explicit goal to "restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters". The concept of
"integrity" was recognized by Congress as having a broad, ecological
context, i.e. "a condition in which the natural structure and function of
ecosystems is maintained" (H.R. Rep. 92-911, 92d Cong., 2d Sess. 76
(1972). CWA jurisdiction, therefore,
should extend to all waters of the United States that perform functions
necessary to achieve the goal of the law, consistent with the Commerce
Clause. Geographic isolation of waters
is a poor surrogate by which to judge the function of these waters in achieving
the goals of the CWA or their relation to interstate and foreign commerce.
In United States v. Riverside Bayview Homes, Inc., the Supreme Court "found
that Congress’ concern for the protection of water quality and aquatic
ecosystems indicated its intent to regulate wetlands ‘inseparably bound up with
the ‘waters’ of the United States” (474 U.S. 121, 1985, at 134). Geographically isolated wetlands are as inseparably bound up with
waters of the U.S. as adjacent wetlands.
Geographically isolated wetlands
commonly are connected hydrologically to other wetlands or other waters by
means of surface or subsurface flows (e.g., prairie potholes and Nebraska
Sandhills wet meadows) or infrequent overflows (e.g., West Coast vernal
pools). Tiner et al. (2002) note,
"Many wetlands considered isolated from the landscape or geographic
perspective are connected hydrologically via groundwater to other wetlands and
to rivers and streams . . . Other geographically isolated wetlands may become
hydrologically linked to other wetlands during extremely wet years as surface
water overflows from one depressional wetland to another." Prairie
pothole wetlands and wetlands in karst regions are notable examples. Truly isolated wetlands that have no surface
water or ground water connection to other waters do exist (e.g., Southwest
playas and Rainwater Basin wetlands in Nebraska), but such wetlands clearly are
the exception (Tiner et al. 2002). Many waters thought to be
intrastate waters are likely in fact to be interstate waters when hydrological
linkages are understood and taken into account.
In United States v. Riverside Bayview Homes, Inc., the Supreme Court noted "the
evident breadth of congressional concern for protection of water quality and
aquatic ecosystems," and "the
inherent difficulties of defining precise bounds to regulable waters" (474
U.S. 121, 1985, at 133 and 134). The Supreme Court went on to conclude that
regulation of wetlands in that case was warranted on the basis of, "the Corps' ecological judgment about the relationship between waters
and their adjacent wetlands." With
respect to this hydrological relationship between waters and adjacent wetlands,
the Supreme Court stated,
"For example, wetlands that are not flooded by
adjacent waters may still tend to drain into those waters. In such
circumstances, the Corps has concluded that wetlands may serve to filter and
purify water draining into adjacent bodies of water, and to slow the flow of
surface runoff into lakes, rivers, and streams thus preventing flooding and
erosion" (474 U.S. 121, 1985, at 134).
This statement applies equally
well to geographically isolated wetlands.
Several studies have concluded that loss of prairie pothole wetlands, for example, contributes to flooding and flood damages (e.g.,
Brun et al. 1981; Campbell and Johnson 1975; Moore and Larson 1979). Similarly, an
analysis for a federal interagency task force determined that watersheds with
prairie potholes would be the most effective for restoring wetlands to reduce
flood damages downstream (Interagency Floodplain Management Review Committee
1994).
The
waters subject to 33 CFR 328.3(a)(3) often contribute
to groundwater supplies (including regional aquifers) as water enters more
permeable adjacent soils and moves downward to underlying aquifers and flows
laterally to augment stream flows.
According to Tiner et al. (2002), "Many wetlands that appear
isolated from surface waters actually are
vital components of regional water systems, since they contribute to local and
regional aquifers." Hubbard (1991)
discusses the importance of prairie pothole wetlands in ground water recharge. Playa lakes are major recharge sites in the
Southern High Plains (Wood and Osterkamp 1984 as reported in Carter 1996). Comments by Ducks Unlimited on this ANPR
provide extensive additional support to demonstrate the linkages among
geographically isolated wetlands, groundwater and navigable waters within a
broad variety of wetland categories.
Geographically
isolated wetlands and the other waters generally subject to 33 CFR 328.3(a)(3)
also play an important role in maintaining the quality of other waters of the
United States. Substantial sums are spent annually under section 319 and other
provisions of the CWA to construct geographically isolated wetlands to control
nonpoint source pollution and improve the quality of surface waters. These efforts under the CWA should not be
undone by a narrow interpretation of the definition of "waters of the
United States." Destruction or
degradation of geographically isolated wetlands contributes to the erosion of
stream banks by increasing the frequency of high flows. The State of Illinois' 1997 Integrated
Management Plan for the Illinois River Watershed describes how sedimentation,
caused in part by stream bank erosion, is filling up backwater lakes on the
Illinois River and creating problems for navigation. The development of geographically isolated wetlands also has
other water quality impacts. Studies
have shown, for example, that prairie potholes significantly reduce concentrations
of pollutants in agricultural runoff, and conversely, a study in the prairie
pothole region of northwestern Iowa has shown that pollution concentrations
increase as wetland acreage is decreased by drainage (Hubbard 1988). Phillips et al. (1993) have shown on the
eastern shore of the Chesapeake Bay that concentrations of nitrates decrease in
correlation with the presence of forested wetlands, many of which are in
isolated "closed depressions."
Tiner et al. (2002) discuss how
the function of geographically isolated pocosin wetlands benefits estuaries by
giving them more time to assimilate the fresh water without rapid and drastic
fluctuations in water quality.
Although the Supreme Court found in Solid
Waste Agency of Northern Cook County v. United
States Army Corps of Engineers et al. (SWANCC) that the COE had erred in relying
exclusively on the existence of migratory bird habitat as a basis for
regulation, the Court did not outlaw consideration of the use of wetlands by
migratory birds, endangered species and other wildlife factors to be considered
in making jurisdictional determinations.
It merely ruled that such considerations could not serve as the sole
basis for asserting jurisdiction. Isolated wetlands provide habitat functions that in many
cases are distinct from, and interrelated with, the functions provided by other
waters. Maintaining this functional linkage between geographically isolated
wetlands and other waters is essential to restoring and maintaining the
biological integrity of the Nation's waters.
The
great importance of geographically isolated wetlands and other waters
identified under 33 CFR 328.3(a)(3) as habitat for migratory birds and
endangered and threatened species is documented extremely well. Waterfowl, other migratory birds and
many aquatic animals use these wetlands for critical stages of their lives even
while depending on other waters at other times. The high density of geographically isolated wetlands in the
prairie pothole region produces half of North America's waterfowl in an average
year; 41 percent of the continent’s breeding dabbling ducks use this area
(Bellrose 1979, Smith et al. 1964, Tiner et al. 2002). Geographically isolated wetlands east of the
Rocky Mountains provide a series of feeding and resting areas for millions of
birds that overwinter along the Gulf Coast and migrate to northern breeding
grounds, and the geographically isolated wetlands of the Rainwater Basin
provide habitat for nearly all of the mid-continental population of
greater white-fronted geese (Tiner et al. 2002). The degradation, or destruction of these and other geographically
isolated wetlands adversely affects nearly 3 million migratory bird hunters,
including about 1.6 million duck hunters, and has a significant effect on
interstate and foreign commerce. These
hunters spent about $1.4 billion in 2001 for hunting related goods and
services; 14% of this hunting nationwide took place in a state other than the
one in which the participant resided (U.S. Fish and Wildlife Service
2002). In addition, 14.4 million people
participated in watching waterfowl, with associated expenditures and values
also measured in the billions of dollars (U.S. Fish and Wildlife Service 2002).
As
demonstrated above, there are many reasons to protect wetlands that are
directly related to the water quality goals that are clearly within the intent
of Congress as interpreted by the Supreme Court in SWANCC and Riverside Bayview
Homes decisions and within the scope of Congress’ power under the Commerce
Clause. The proposed rule should revise
33 CFR 328.3(a)(3) to make clear that, under applicable Supreme Court
decisions, it is the “aggregate effect” of discharges of dredged or fill
material on interstate commerce that must be evaluated, not simply the effect
of regulating a particular wetland fill.
As the Supreme Court acknowledged in the SWANCC decision, most
discharges of dredge or fill material involve the kind of economic activity
that falls squarely within the Commerce Clause.
WMI
recommends, therefore, that 33 CFR 328.3(a)(3) be revised to read as follows:
(3) All other waters such as intrastate lakes, rivers,
streams, . . . or natural ponds, the use, degradation or destruction of which
in the aggregate could affect interstate or foreign commerce including any such
waters:
(i) which are or could be
used by interstate or foreign travelers for recreational or other purposes; or
(ii) from which fish or
shellfish are or could be taken and sold in interstate or foreign commerce: or
(iii) which are or could be
used for industrial purposes by industries in interstate commerce; or
(iv) which through storage of
water prevent or could prevent flooding of waters identified in paragraphs
(a)(1)-(2) of this section; or
(v)
which recharge or could recharge interstate aquifers or waters identified in
paragraphs (a)(1)-(2) of this section; or
(vi)
which affect or could affect the quality of waters identified in paragraphs
(a)(1)-(2) of this section; or
(vii)
which provide or could provide water for livestock or crops sold in interstate
commerce; or
(viii)
which, in combination with any waters under subparagraphs (i)-(vii), provide or
could provide habitat for birds protected by Migratory Bird Treaties or for
species listed under the Endangered Species Act (16 USC 1533 et seq.).
3. Whether the regulations should define ‘‘isolated waters,’’ and if
so, what factors should be considered in determining whether a water is or is
not isolated for jurisdictional purposes?
If the regulations define the term "isolated waters," it should not be on the basis of geographic isolation, because such a definition has no basis in science. Jurisdictional determinations instead should be based on the hydrological or physical, chemical or biological functional relationships among wetlands and other waters. Jurisdiction, therefore, should extend to all waters of the United States that perform functions necessary to achieve the goal of the CWA, consistent with the Commerce Clause as interpreted by the Courts. Decisions concerning which intrastate waters fall within the jurisdiction of the CWA's definition of "waters of the United States" should be made on the basis of whether they fall within the revised definition of 33 CFR 328.3(a)(3) recommended above for making jurisdictional determinations based on the aggregate effect of regulated activities on interstate commerce or on waters regulated under 33 CFR 328.3(a)(1)-(2). If the term "isolated waters" is defined, it should be defined as those waters that have no hydrological or physical, chemical or biological functional relationship with any waters that otherwise would meet the definition of "waters of the United States."
Appendix
A
WMI believes that the Joint Memorandum under Appendix A of
the ANPR, which provides clarifying guidance regarding the Supreme Court's
SWANCC decision, should be modified as follows:
1.
Clarify that the SWANCC decision did not invalidate any of the provisions of 33
CFR 328.3(a), which define “waters of the United States.” Only the total
reliance on the use of waters as habitat by birds protected by Migratory Bird
Treaties in the policy and guidance document known as the “Migratory Bird Rule”
was invalidated. Moreover, the Joint
Memorandum should clarify that the SWANCC decision did not bar jurisdictional
determinations from considering the use of wetlands as habitat by migratory
birds; only that such considerations could not be the sole basis for
jurisdictional determinations.
2.
The Joint Memorandum should not effectively remove all waters under 33 CFR
328.3(a)(3) from CWA jurisdiction by requiring field staff to seek formal
project-specific Headquarters approval prior to asserting jurisdiction over
such waters. We view this requirement
as a substantial overreaction to the SWANCC decision and ask that it be deleted
from the guidance.
3. WMI recommends that the Joint Memorandum
guidance require assessment of the hydrological, physical, chemical and
biological functions performed by wetlands within a given watershed in making
CWA jurisdictional determinations. As
discussed above, these functions include: flood control, erosion control, water
quality maintenance, groundwater recharge, and conservation of biological
diversity.
Literature Cited
Bellrose, F.C. 1979. Species distribution, habitats, and characteristics of breeding dabbling ducks in North America. In T.A. Bookhout, ed. Waterfowl and Wetlands – An Integrated Review. Proceedings of a symposium, 39th Midwest Fish and Wildlife Conference (December 5, 1977), Madison, WI. LaCrosse Printing Company, Inc., LaCrosse, WI.
Brun, L.J., J.L. Richardson, J.W. Enz and J.K. Larsen. 1981. Stream flow changes in the southern Red River Valley. M.D. Farm. Res. 38:1-14.
Campbell, K.L. and H.P. Johnson. 1975. Hydrologic simulation of watersheds with artificial drainage. Water Resour. Res. 11:120-126.
Carter, V. 1996. Technical aspects of wetlands: wetland hydrology, water quality and associated functions. In J.D. Fretwell, J.S. Williams, P.J. Redman, eds. National Water Summary on Wetland Resources, USGS Water Supply Paper 2425.
Dahl, T.E. 2000. Status and trends of wetlands in the conterminous United States 1986 to 1997. U.S. Department of the Interior: Fish and Wildlife Service, Washington, DC. 82 pp.
Hubbard, D.E. 1988.
Glaciated prairie wetland functions and values: A synthesis of the
literature. U.S. Fish and Wildlife Service, Washington, D.C. Biol. Rep. 88
(43).
Hubbard, D.E. 1991.
Statement before the U.S. Senate Subcommittee on Environmental Pollution
concerning the status of wetlands science.
U.S. Government Printing Office, Washington, D.C. 49 pp.
Interagency Floodplain
Management Review Committee. 1994. Sharing the challenge: Floodplain management
into the 21st Century. Pgs. 46-47.
Moore, I.D. and C.L. Larson. 1979. Effects of drainage projects on surface runoff from small depressional watersheds in the North-central region. Univ. Minnesota Water Resour. Res. Cent. Bull. 99. 225 pp.
Phillips, P.J., J. M. Denver, R.
J. Shedlock and P.A. Hamilton.
1993. Effect of forested
wetlands on nitrate concentrations in ground water and surface water on the
Delmarva Peninsula. 13 Wetlands 75-83.
Smith, A.G., J.H. Stoudt, and J.B.
Gollop. 1964. Prairie potholes and marshes.
Pages 39-50 in J.P. Linduska,
ed. Waterfowl Tomorrow. U.S. Fish and Wildlife Service, Washington, D.C.
Tiner, R.W., H. C. Bergquist, G.
P. DeAlessio, and M. J. Starr.
2002. Geographically isolated
wetlands: A preliminary sssessment of their characteristics and status in
selected areas of the United
States. U.S. Department of the Interior, Fish and Wildlife Service, Northeast
Region, Hadley, MA.
Wood, W.W. and W.R. Osterkamp. 1984. Recharge to the Ogallala Aquifer from playa lake basins on the Llano Estacado (An outrageous proposal?). Pages 337-349 in G.A. Whetstone, ed. Proceedings of the Ogallala Aquifer Symposium II. Texas Tech University, Lubbock, TX.