Summary of Hearings on Clean Water Issues (8-11-06)

  • August 1, 2006: U.S. Senate Committee on Environment & Public Works, Subcommittee on Fish, Wildlife, and Water, Interpreting the Effect of the U.S. Supreme Court's Recent Decision in the Joint Cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers on "The Waters of the United States"
  • July 13, 2006: House Appropriations Committee,Subcommittee on Interior, Environment, and Related Agencies, Oversight Hearing on Chesapeake Bay Restoration


U.S. Senate Committee on Environment & Public Works
Subcommittee on Fish, Wildlife, and Water
Interpreting the Effect of the U.S. Supreme Court's Recent Decision in the Joint Cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers on "The Waters of the United States"

August 1, 2006

Witnesses Panel I:
Hon. Ben Grumbles, Assistant Administrator, Office of Water, U.S. Environmental Protection Agency
Hon. John Paul Woodley, Jr., Assistant Secretary for Civil Works, U.S. Department of Army
John C. Cruden, Deputy Assistant Attorney General, Environment and Natural Resources Division, U. S. Department of Justice

Witnesses Panel II:
Dr. Jonathan Adler, Associate Professor of Law, Case Western Reserve University School of Law
Dr. William W. Buzbee, Professor of Law, Director, Environmental and Natural Resources Law Program, Emory Law School
Chuck Clayton, Immediate Past President, Izaac Walton League of America
Keith Kisling, National Wheat Growers and National Cattlemen's Beef Association

On August 1, 2006 the Senate Environment and Public Works Subcommittee on Fish, Wildlife and Water met to analyze the recent Supreme Court decision on two cases involving the Clean Water Act. Subcommittee Chair, Lincoln Chafee (R-RI) opened the hearing with a brief statement. He clarified congressional authority to enact legislation for environmental protection under the interstate commerce clause, even for intrastate disputes, if the aggregated effect could potentially affect the environment across state lines. He stated the purpose of the Clean Water Act is "aimed at restoring and maintaining the chemical, physical and biological integrity of the nation's waters" and noted the act's effectiveness since 1972. Chafee then summarized the two cases and the court's decision.

The Rapanos case involved a developer who filled in wetlands without obtaining a permit. The plaintiffs questioned the Army Corps authority to regulate wetlands that are adjacent to navigable waters and connected only by non-navigable tributaries. The Carabell case involved a developer who was denied a permit to fill in wetlands, which were separated from navigable waters by a man-made berm. The plaintiffs questioned federal authority to regulate wetlands that do not have a direct hydrological connection to navigable waters.

The Supreme Court in a 5-4 decision, vacated the lower courts decisions supporting federal authority to regulate the wetlands and remanded the cases to the lower courts for reconsideration. The justices were divided on which waterways should be considered part of or directly related to "waters of the United States" and covered by the Clean Water Act. Four concurring justices in a plurality opinion indicated that only adjacent wetlands connected by a waterway with continuous surface flow should be regulated. Justice Kennedy, who agreed to remand the cases, indicated that each case should be decided based on a "significant nexus" between the wetland and navigable waters. Four dissenting justices indicated that current federal statutory definitions were appropriate.

Ranking Member, Senator Hillary Rodham Clinton (D-NY) remarked in her opening statement that the split interpretations of the justices could have a significant impact on the effectiveness of the Clean Water Act in the future. The narrower definition of waterways and connectedness suggested by the plurality opinion would leave millions of acres of wetlands and tributaries unprotected with devastating results on water quality. She called on Congress to act to clarify which waterways are protected by the Clean Water Act.

Senators James Inhofe (R-OK), Lisa Murkowski (R-AK), Frank Lautenburg (D-NJ) and James Jeffords (I-VT) also gave opening remarks, which are available on the subcommittee's web page.

The first panel of witnesses represented the federal agencies involved in these cases. Mr. Crumbles, Assistant Administrator, Office of Water, U.S. Environmental Protection Agency (EPA) stated that the administration is "pro-wetlands." President Bush has re-affirmed his "no net loss" wetlands goal and has requested additional funds in fiscal year 2007 for wetlands reserve programs within EPA. Since the court decision, the EPA has issued field guidance to staff to defer wetland decisions until the agency can complete a new guidance memo in cooperation with the Corps. Several senators criticized the "no net loss" goal as poor because it does not try to improve environmental conditions by increasing the number of healthy wetlands, but just tries to maintain current ones. Grumbles was also criticized by several senators for delaying decisions on current wetland permit cases. Some senators requested the EPA to take action quickly to include the narrower interpretation of waterways in their permitting process while other senators wanted the EPA to move forward on decisions based on the current rules until the lower courts have reached decisions on the two cases.

Mr. Woodley, Assistant Secretary for Civil Works, U.S. Department of Army in his testimony stated that each year the Corps makes about 100,000 jurisdictional determinations and issues 80,000 permits related to wetlands. Senator Murkowski questioned him on how the Corps could apply their current definition of wetlands to Alaska where many wetlands are frozen much of the time. Woodley responded that it is hard to apply "universal principles to an infinite landscape" and the Corps has many complex determinations in many other states too.

Mr. Cruden, Deputy Assistant Attorney General, Environment and Natural Resources Division, U. S. Department of Justice, provided more legal background on the recent cases and two previous Clean Water Act Supreme Court decisions in 1985 and 2001. He concluded that there was a majority decision to remand the two cases and a plurality opinion on how to define regulated wetlands. He indicated that the Department of Justice would be willing to consider either the plurality opinion written by Justice Scalia or Kennedy's opinion when deciding on litigation of future cases. He also indicated that the Justice Department is developing new procedures based on the court's recent decision and will defer litigation until they have new guidance documents ready for all of their staff. Senator Chafee asked for more details on how the Justice Department is deciding current cases and Cruden detailed the Justice Department's continued pursuit of litigation against a Florida homeowner, who dumped raw sewage from his septic tank directly into a tributary to a navigable waterway. Senator Clinton later asked if the "human excrement test", referring to the Florida case, would really fit with the plurality's definition. She also questioned Cruden about how the Justice Department would treat oil spill cases, which are governed by the Oil Pollution Act of 1990, but rely on the definitions of waterways defined in the Clean Water Act. Cruden indicated the department has not decided how to apply the Rapanos decision to oil spills yet.

The second panel brought in outside witnesses from law schools and non-governmental interest groups to analyze the court's decision. The two attorneys and law professors, Dr. Adler and Dr. Buzbee disagreed sharply in their testimony on their legal interpretations of the court's opinions. Dr. Adler indicated that the Corps has over-reached and too broadly defined wetlands and adjacent waterways. He encouraged the Corps and EPA to revise their regulations as soon as possible to limit the scope of their impact on wetlands and non-navigable waters. Dr. Buzbee indicated that the plurality opinion does not represent the law and is too narrowly defined. He emphasized that the plurality opinion was different from Kennedy's opinion and that Kennedy's "significant nexus" requirement be used to decide which wetlands should be regulated. During questioning from the senators, the attorneys noted that the court's decision was complex and confusing and would lead to even more litigation. Dr. Adler encouraged revisions to regulations, while Dr. Buzbee encouraged congressional legislation that clarified the statutory definition of regulated waterways.

The full text of the senators' opening remarks as well as the written testimony of the witnesses is available from the subcommittee web page at:

- LR


House Appropriations Committee
Subcommittee on Interior, Environment, and Related Agencies
Oversight Hearing on Chesapeake Bay Restoration

July 13, 2006


Anu Mittal, Director, Natural Resources and the Environment, Government Accountability Office
Ben Grumbles, Assistant Administrator for Water, Environmental Protection Agency

The House Appropriations Committee Subcommittee on Interior, Environment, and Related Agencies held a hearing on July 13 to review the Environmental Protection Agency's progress on improving environmental conditions in the Chesapeake Bay. The Government Accountability Office had released report describing slow progress and high costs during the last ten years. The report raised concern among representatives on the committee. Ranking Member Sen. Norman Dicks (D-WA) described the estuary as facing challenges, and stated that "We have to find better ways of progress in the Bay."

Anu Mittal from the Government Accountability Office summarized the main points of the report. Mittal said the Chesapeake Bay restoration efforts lacked a significant coordination strategy, resulting in large investments into projects it could never complete. According to the GAO report, the EPA had also used intra-agency review combining program actions and modeled projections to determine their results to downplay deteriorated environmental conditions in the Bay. The EPA findings were also not reviewed by an agencies or non-governmental organizations. "The result is a rosier picture of the health of the bay than may have been warranted," said Mittal.

Ben Grumbles, the Assistant Administrator for Water at EPA, defended the agency's progress in restoring the Chesapeake Bay. "The Agency is working with state and local agencies to establish beneficial partnerships in the cleanup," said Grumbles. He said the EPA "appreciated" the GAO report because it would help ensure a better service to the public affected by Bay issues. Grumbles also mentioned that the EPA has implemented several recommendations from the GAO report. He reiterated the support the Administration has given the EPA for their efforts. "The President has charged EPA with accelerating the progress fro environmental protection…the Chesapeake Bay is a model of how this is done."

Several members of the committee pushed Grumbles for direct answers. Rep. Jim Moran (D-VA) accused the EPA of lying in their reports to the American public and also expressed disappointment in their progress. "The EPA has done everything possible maintain current levels of pollution in [the Chesapeake Bay]." Moran was joined by Reps. Norman Dicks (D-WA) and Maurice Hinchey in suggesting that the EPA revert to the original Clean Water Act standards. They insisted the grant programs in the Clean Water Act were the most effective in helping local agencies to handle runoff, point source pollution, and sewage treatment facilities to prevent toxic releases into the Bay.


Sources: Hearing testimony, Environment and Energy Daily.

Contributed by Tim Donahue, 2006 AGI/AIPG Summer Intern and Linda Rowan, Government Affairs Staff.

Please send any comments or requests for information to AGI Government Affairs Program.

Last updated on August 11, 2006