[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
THE CLEAN WATER RESTORATION ACT OF 2007
=======================================================================
(110-116)
HEARING
BEFORE THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
APRIL 16, 2008
__________
Printed for the use of the
Committee on Transportation and Infrastructure
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JAMES L. OBERSTAR, Minnesota, Chairman
NICK J. RAHALL, II, West Virginia, JOHN L. MICA, Florida
Vice Chair DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of JOHN J. DUNCAN, Jr., Tennessee
Columbia WAYNE T. GILCHREST, Maryland
JERROLD NADLER, New York VERNON J. EHLERS, Michigan
CORRINE BROWN, Florida STEVEN C. LaTOURETTE, Ohio
BOB FILNER, California FRANK A. LoBIONDO, New Jersey
EDDIE BERNICE JOHNSON, Texas JERRY MORAN, Kansas
GENE TAYLOR, Mississippi GARY G. MILLER, California
ELIJAH E. CUMMINGS, Maryland ROBIN HAYES, North Carolina
ELLEN O. TAUSCHER, California HENRY E. BROWN, Jr., South
LEONARD L. BOSWELL, Iowa Carolina
TIM HOLDEN, Pennsylvania TIMOTHY V. JOHNSON, Illinois
BRIAN BAIRD, Washington TODD RUSSELL PLATTS, Pennsylvania
RICK LARSEN, Washington SAM GRAVES, Missouri
MICHAEL E. CAPUANO, Massachusetts BILL SHUSTER, Pennsylvania
TIMOTHY H. BISHOP, New York JOHN BOOZMAN, Arkansas
MICHAEL H. MICHAUD, Maine SHELLEY MOORE CAPITO, West
BRIAN HIGGINS, New York Virginia
RUSS CARNAHAN, Missouri JIM GERLACH, Pennsylvania
JOHN T. SALAZAR, Colorado MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois TED POE, Texas
DORIS O. MATSUI, California DAVID G. REICHERT, Washington
NICK LAMPSON, Texas CONNIE MACK, Florida
ZACHARY T. SPACE, Ohio JOHN R. `RANDY' KUHL, Jr., New
MAZIE K. HIRONO, Hawaii York
BRUCE L. BRALEY, Iowa LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania CHARLES W. BOUSTANY, Jr.,
TIMOTHY J. WALZ, Minnesota Louisiana
HEATH SHULER, North Carolina JEAN SCHMIDT, Ohio
MICHAEL A. ACURI, New York CANDICE S. MILLER, Michigan
HARRY E. MITCHELL, Arizona THELMA D. DRAKE, Virginia
CHRISTOPHER P. CARNEY, Pennsylvania MARY FALLIN, Oklahoma
JOHN J. HALL, New York VERN BUCHANAN, Florida
STEVE KAGEN, Wisconsin ROBERT E. LATTA, Ohio
STEVE COHEN, Tennessee
JERRY McNERNEY, California
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
(ii)
CONTENTS
Page
Summary of Subject Matter........................................ vi
TESTIMONY
Adler, Professor Jonathan H., Director, Center for Business Law
and Regulation, Case Western Reserve University School of Law.. 48
Albrecht, Virginia S., Partner, Hunton and Williams, LLP, on
behalf of the Waters Advocacy Coalition........................ 48
Buzbee, Professor William W., Director, Environmental and Natural
Resources Law Program, Emory Law School........................ 48
Card, Joan, Director, Water Quality Division, Arizona Department
of Environmental Quality....................................... 96
Cope, Hon. Robert, Commissioner, Lemhi County, Salmon, Idaho, on
behalf of the National Association of Counties................. 71
Cruden, John C., Deputy Assistant Attorney General, U.S.
Department of Justice, Environment and Natural Resources
Division....................................................... 10
Gerber, Darrell, Clean Water Action Alliance of Minnesota........ 117
Grumbles, Hon. Benjamin H., United States Environmental
Protection Agency, Assistant Administrator for Water........... 10
Hulsey, Hon. Brett, Dane County Supervisor, District 4, Madison,
Wisconsin...................................................... 71
Jacobs, Hon. Kristin, Broward County Commissioner, District 2,
Fort Lauderdale, Florida....................................... 71
Lancaster, Chief Arlen, United States Department of Agriculture,
Natural Resources Conservation Service......................... 10
Matthiessen, Alex, Hudson Riverkeeper and President, Riverkeeper,
Inc............................................................ 96
Munks, Hon. Don, Skagit County Commissioner, District 1, Mount
Vernon, Washington............................................. 71
Petersen, Chris, President, Iowa Farmers Union................... 71
Pifher, Mark, Director, Aurora Water, on behalf of the National
Resources Association, the Western Urban Water Coalition, and
the Western Coalition of Arid States........................... 96
Quinn, Jr., Harold P., Senior Vice President, Legal and
Regulatory Affairs, National Mining Association................ 117
Recker, Tim, Iowa Corn Growers................................... 117
Runbeck, Linda, American Property Coalition...................... 117
Shaffer, Carl, President, Pennsylvania Farm Bureau............... 117
Squillace, Professor Mark, Director, Natural Resources Law
Center, University of Colorado School of Law................... 48
Tierney, James M., Assistant Commissioner for Water Resources,
New York State Department of Environmental Conservation........ 96
Trout, Robert V., Trout, Raley, Montano, Witwer and Freeman, P.C. 96
Woodley, Jr., Secretary John Paul, Assistant Secretary of the
Army for Civil Works........................................... 10
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Altmire, Hon. Jason, of Pennsylvania............................. 140
Bishop, Hon. Timothy H., of New York............................. 141
Boozman, Hon. John, of Arkansas.................................. 142
Carnahan, Hon. Russ, of Missouri................................. 145
Cohen, Hon. Steve, of Tennessee.................................. 148
Costello, Hon. Jerry F., of Illinois............................. 149
Ehlers, Hon. Vernon J., of Michigan.............................. 151
Gilchrest, Hon. Wayne T., of Maryland............................ 156
Mica, Hon. John L., of Florida................................... 158
Mitchell, Hon. Harry E., of Arizona.............................. 163
Rahall, II, Hon. Nick J., of West Virginia....................... 166
Shuler, Hon. Heath, of North Carolina............................ 168
Walz, Hon. Timothy J., of Minnesota.............................. 170
Young, Hon. Don, of Alaska....................................... 171
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Adler, Johnathan H............................................... 174
Albrecht, Virginia S............................................. 181
Buzbee, William W................................................ 209
Card, Joan....................................................... 233
Cope, Hon. Robert................................................ 247
Cruden, John C................................................... 260
Gerber, Darrell.................................................. 282
Grumbles, Hon. Benjamin H........................................ 315
Hulsey, Hon. Brett............................................... 334
Jacobs, Hon. Kristin............................................. 341
Lancaster, Chief Arlen L......................................... 347
Matthiessen, Alex................................................ 352
Munks, Hon. Don.................................................. 375
Petersen, Chris.................................................. 379
Pifher, Mark T................................................... 387
Quinn, Jr., Harold P............................................. 396
Recker, Tim...................................................... 406
Runbeck, Linda C................................................. 413
Shaffer, Carl.................................................... 420
Squillace, Mark.................................................. 442
Tierney, James M................................................. 453
Trout, Robert V.................................................. 462
Woodley, Jr., Secretary John Paul................................ 469
SUBMISSIONS FOR THE RECORD
Mica, Hon. John L., a Representative in Congress from the State
of Florida, list of organizations that submitted statements for
the record..................................................... 5
Albrecht, Virginia S., Partner, Hunton and Williams, LLP, on
behalf of the Waters Advocacy Coalition, responses to questions
from the Committee............................................. 206
Buzbee, Professor William W., Director, Environmental and Natural
Resources Law Program, Emory Law School, responses to questions
from the Committee............................................. 229
Card, Joan, Director, Water Quality Division, Arizona Department
of Environmental Quality, responses to questions from the
Committee...................................................... 245
Cope, Hon. Robert, Commissioner, Lemhi County, Salmon, Idaho, on
behalf of the National Association of Counties, responses to
questions from the Committee................................... 258
Gerber, Darrell, Clean Water Action Alliance of Minnesota,
responses to questions from the Committee...................... 312
Grumbles, Hon. Benjamin H., United States Environmental
Protection Agency, Assistant Administrator for Water; Woodley,
Jr., Secretary John Paul, Assistant Secretary of the Army for
Civil Works, responses to questions from the Committee......... 330
Matthiessen, Alex, Hudson Riverkeeper and President, Riverkeeper,
Inc., responses to questions from the Committee................ 371
Munks, Hon. Don, Skagit County Commissioner, District 1, Mount
Vernon, Washington, responses to questions from the Committee.. 378
Petersen, Chris, President, Iowa Farmers Union, responses to
questions from the Committee................................... 385
Pifher, Mark, Director, Aurora Water, on behalf of the National
Resources Association, the Western Urban Water Coalition, and
the Western Coalition of Arid States, responses to questions
from the Committee............................................. 394
Quinn, Jr., Harold P., Senior Vice President, Legal and
Regulatory Affairs, National Mining Association, responses to
questions from the Committee................................... 404
Runbeck, Linda, American Property Coalition, responses to
questions from the Committee................................... 418
Shaffer, Carl, President, Pennsylvania Farm Bureau, responses to
questions from the Committee................................... 430
Squillace, Professor Mark, Director, Natural Resources Law
Center, University of Colorado School of Law, responses to
questions from the Committee................................... 449
Tierney, James M., Assistant Commissioner for Water Resources,
New York State Department of Environmental Conservation,
responses to questions from the Committee...................... 460
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HEARING ON THE CLEAN WATER RESTORATION ACT OF 2007
----------
Wednesday, April 16, 2008
House of Representatives
Committee on Transportation and Infrastructure,
Washington, DC.
The Committee met, pursuant to call, at 11:10 a.m., in Room
2167, Rayburn House Office Building, the Honorable James L.
Oberstar [Chairman of the Full Committee] presiding.
Mr. Oberstar. The Committee on Transportation and
Infrastructure will come to order.
Today we resume discussion of the future of the Federal
Water Pollution Control Act, the Clean Water Act of 1972.
Over the past three decades, this legislation and its
predecessors, going back to the work of my predecessor in
Congress, John Blatnik, who once chaired this Committee and
authored the very--well, not quite the very first, there was a
1948 Act, but the major restatement of purpose, statement of
objectives for clean water was in 1956 with the Blatnik
legislation that set up essentially the structure we have
today, of grants to municipalities, although the grants are
gone now, they are now replaced by loans, to build sewage
treatment facilities. Mr. Blatnik said, at the end of the day
you have to build a plant to clean up the waste. Two, an
enforcement program; three, research and development. Those are
essentially the three structures of the Act today.
That initiative, the Federal-State partnership created in
1956 and restated in 1965 and reaffirmed in 1972 is still the
cornerstone of this legislation, and it has taken us from two-
thirds of the Nation's waters being polluted and unaccepted for
body contact activities, for fishing and recreational
activities, to less than one-third of the waters not meeting
fishable and swimmable standards. We have gone from the days of
the Cuyahoga River catching fire and soap suds floating down
the Ohio-Illinois river system, soap coming out of people's
faucets when they turned on the water for drinking water, to
dependable sources of clean water.
For over 30 years, the industrial sector, agriculture,
municipalities worked in cooperation with States and the
Federal Government, EPA, and the Corps of Engineers toward the
purpose of the Act, stated in the opening paragraph: ``to
restore and maintain the chemical, physical, and biological
integrity of the Nation's waters.'' That is in the opening
paragraph of the Act.
And I say, parenthetically, I was chief of staff at the
time we crafted that legislation. Many of the House-Senate
conferences meetings were held right here in this room. We
didn't have as many seats for Members in those days, we only
had these two rows; that lower row didn't exist at the time, so
we had a big space. Those were rigorously debated conference
meetings, over 10 months, not of cameo appearances, but intense
discussions--Senators on the one side, House Members on the
other, staff on both sides--and hammered out, piece by piece,
the purpose and the specifics of that legislation.
Of course, not everybody was happy with the legislation,
When Richard Nixon vetoed the Clean Water Act of 1972, Congress
overrode by a 10 to 1 vote, overrode that veto. That meant that
90 percent of Republicans and 95 to 100 percent of Democrats
voted to override.
Then along comes the Supreme Court and two decisions--the
SWANCC case, Solid Waste Agency of Northern Cook County, in
2001, and the Rapanos case five years later--that confused the
scene. As Justice Stevens said, ``The decision needlessly
weakened our principal safeguard against toxic water.''
Left behind in the wake of those decisions was what you can
charitably call regulatory confusion, maybe even chaos. But I
believe that we can correct it. I think we can take the effect
of the two Supreme Court decisions--confusion, inconsistency,
uncertainty about how to apply the Act--and repair it. The goal
of the 1972 Act was very clearly to avoid pollution havens.
Upstream States didn't want to be in a position where
downstream States could outdo them or attract business on the
grounds that they wouldn't have to clean up as much as in other
places. States clearly said to the Congress--the House, the
Senate--we want a baseline consistent Federal standard so that
industry could not be enticed from one State to a laissez faire
State; and that is largely what prevailed over the ensuing 30
years.
Now we have a regulatory miasma. It wasn't created by the
Congress, but it is our duty to clarify it. We need to look
back at the fundamental principles of the Clean Water Act and
its predecessor legislation to reaffirm the partnership between
the Federal Government and the States to restore and maintain
the integrity of the Nation's waters, and to proceed to
continue with the central thrust of the Clean Water Act: a
watershed approach to establishing and maintaining clean water.
A central purpose of the Clean Water Act was control of
point sources--and establishing a basis for dealing with non-
point sources was to be done in time--and to provide Federal
financial support to the States to carry out their end of the
bargain. The Clean Water Act, as amended, recognized very
distinct categories of unique activities: agricultural return
flows in the 1977 Act, agriculture return flows exempted;
stormwater runoff from oil, gas, and mining exempted;
maintenance of structures such as dikes, dams, levees, riprap,
breakwaters, causeways, transportation structures exempted;
construction or maintenance of farm or stock ponds and
irrigation ditches, again, clear consensus, exempted;
construction of temporary sedimentation basins exempted; moving
of mining equipment, construction or maintenance of farm roads
and forest roads, or temporary roads for mining equipment also
exempted; and activities where States have an approved program
to manage. All those were part and parcel of the Clean Water
Act which now are put in question by the Supreme Court
decision.
Over the last seven years, I have laid on the table a
proposal to address this regulatory uncertainty and chaos by
what I consider to be misguided Supreme Court decisions, and
after years of no action and no consideration, we have had a
major hearing, we have launched a major debate nationally, and
discussion within the Committee on the proposal I have set
forward. The goal of the legislative proposal is to restore the
Clean Water Act protections in place prior to the Supreme Court
decision and not to extend the reach, not to go beyond that
purpose. The pre-SWANCC and pre-Rapanos regulatory era define
the universe of the Clean Water Act very broadly: to allow EPA
and the Corps of Engineers and the States to address the water
quality concerns where they found them and this broad, and
largely undefined structure worked relatively well for over 30
years.
Now, implementation has also needed streamlining. There is
no question about that. To the extent we can simplify
practices, streamline permitting process, we ought to attempt
to do that, provided we do not shortcut environmental values;
and I welcome recommendations. Previous practice also was
backed by science, viewing the natural water environment as
interconnected, and that is a matter that needs to be
continued, stressing the role of protecting geographically
isolated, intermittent, in some cases so-called ephemeral
headwater streams, to protect total water quality. It is a
common sense approach. It is cost-effective and it is, in a
practical sense, effective in protecting pollutants from
entering a water body, much more efficiently than trying to
remove them once they go downstream.
My legislation is not intended to ignite old debates that
existed 35 years ago and that were resolved with the enactment
of Clean Water Act, but to put the Clean Water Act back on the
track that it was prior to these two Court decisions. We had a
previous hearing in which we received a wide range of views.
The purpose of today's hearing is to continue to receive
specific recommendations from a wide range of affected and
interested parties on how to proceed in the post-SWANCC-Rapanos
era and what specific adjustments they recommend to the
introduced bill.
I invite constructive proposals and remain open to
adaptations to this bill, and I look forward to working with
Mr. Mica and Mr. Boozman, along with Members on our side of the
aisle, on constructive proposals to make these adaptations. And
I reaffirm that the introduced bill is not an inflexible
document, but a starting point for discussion, and I look
forward to today's hearing.
I now recognize the distinguished gentleman from Florida,
Ranking Member Mr. Mica.
Mr. Mica. Well, thank you, Mr. Chairman. I am pleased today
to participate in the hearing on H.R. 2421. We are going to
have an opportunity to carefully review Mr. Oberstar's proposed
legislation that would fundamentally alter the course of water
regulation. I believe Mr. Oberstar has some very good
intentions, but we have to look at the consequences of the
language that we have before us.
Mr. Oberstar and I usually try to work out our differences
on most issues before the Committee, and I appreciate his
willingness to work with us. However, in its present form, H.R.
2421, I do not agree with the way the language has been
drafted. And I might say that my interpretation is similar to
hundreds of organizations representing millions of citizens
across the Country. In fact, this is just some of the
organizations, and I am going to ask if we can list them in the
Congressional Record.
Mr. Oberstar. In the hearing record.
Mr. Mica. What did I say? Congressional Record. Sorry. In
the hearing record.
[Information follows:]
[GRAPHIC] [TIFF OMITTED] 41961.001
Mr. Mica. In addition, I have to say, again, in 16 years--
and certainly in my short tenure as Ranking Member--I have
never heard from so many people opposed to one piece of
legislation. In fact, this is just a sampling--and I won't ask
to have all these put in the record. This is just a sampling of
correspondence I have in opposition to this particular piece of
legislation. I did not solicit one letter or request.
I will have a request--I don't want to put these and some
of the others in the record--I think it wouldn't do justice for
the taxpayers, because it is pretty extensive--but I will have
a request later on at the end of my remarks for unanimous
consent to put some principal organizations' comments and
letters in the record.
I am afraid, too, as Americans begin to realize the
potentially harsh consequences of the legislation in its
current form, that opposition will expand even beyond what we
see here. Unlike the initial description of this bill, it in
fact is far from being a simple restoration of what has been
termed prior regulatory regime or practice. Put very simply,
this legislation represents a hallmark example of pushing an
agenda item right now that I think could be very disastrous to
the economy and could have disastrous consequences to
agriculture, personal land rights, the rights of States and
localities to manage their own water resources.
It is said that this action is needed to clarify the
jurisdictions of the Clean Water Act after recent Supreme Court
decisions allegedly created some ambiguities. Again, I think
Mr. Oberstar has very good intentions, but, again, we have to
look at the consequences of the language and the action the
legislation would institute. Some believe that the solution to
this problem is just to expand Federal Government regulatory
authority over everything, so under this bill, if you do that,
there will be no limit. Certainly there will be no ambiguity
because there is no limit to Federal jurisdiction over all
things involving water. Unfortunately, the results would be an
unprecedented and historic Federal jurisdictional grab, and I
don't think that is the intent.
A person does not need to be a rocket scientist to
recognize when you remove the word ``navigable'' from the
jurisdictional description, navigable waters of the United
States, what will really result is we will have a massive
expansion of Federal regulatory authority. To suggest otherwise
sort of defies any common sense interpretation of what you have
done, again, with changing this language.
To subject ditches, retention ponds, stormwater runoff,
water in a field, or pool in a backyard to be a body of water
in need of Federal regulation somehow defies common sense.
Federal regulation of virtually every wet area in the Country
is not needed and it is not necessary. Unfortunately, there are
some folks who do support this, and some on both sides of the
aisle. Some of them may feel this is a quid pro quo for their
environmental agenda.
However, creating the tools which will effectively cripple
U.S. agriculture, energy production, economic development which
will end up in a morass of lawsuits, new legal interpretations
and entanglements, and over-reaching regulation, that is my
fear. By throwing out 35 years of Clean Water Act
jurisprudence, we will create chaos, I am afraid, unlike
anything we have seen in the courts--Federal courts, the
Supreme Court--and attempting to redefine the new
constitutional limits of Federal authority.
The reality is that there is no evidence that any
endangered wetland or other important aquatic ecosystems are
being destroyed or being harmed around the Nation as a result
of the Supreme Court cases and the agency's new guidance. The
guidelines in place protect the natural interest in clean
water, while respecting the rights of individuals, States,
Tribes, and local governments to manage their own resources.
The Committee has not even given time for the ink to dry on
the new guidelines the Administration has issued with respect
to specifically help move along the permitting backlog and also
provide even more clarification beyond that of the 35-year
legal structure. Unfortunately, sometimes facts are not allowed
to interfere with political rhetoric or agendas and, in the
end, H.R. 2421, I am afraid, will simply muddy the waters,
ponds, pools, gutters, spouts, ditches in courtrooms across our
great Nation. In fact, what I am concerned about is it will
cloud, rather than clear, our water's future in this Country.
There are a large number of witnesses today, and the
comments of the last panel may not be heard over the noise of
the nightly cleaning crew that comes in late. This is going to
go on for some time, folks. So let me share a couple of points
that they make, not that I am making.
Mr. Oberstar. I will be here to hear them.
Mr. Mica. I am sure. And they will be part of the record,
but I want a couple of them made up front here.
Mr. Shaffer, of the American Farm Bureau Federation, states
that activists have already used the courts to drag agriculture
operations into a regulatory quagmire. If H.R. 2421 were to
become law, the Farm Bureau predicts that we can expect more
litigation, more regulation, and an escalation of the cost to
comply. The results will be harmful to the Nation's ability to
competitively produce food and fiber. That is Mr. Shaffer of
the American Farm Bureau.
Mr. Quinn, representing the National Mining Association,
testifies that the proposed changes will greatly increase the
time and costs required to move through the permitting process.
The result would be a permitting system that is not capable of
producing reasonable decisions in a reasonable time frame.
In addition, I am going to ask to have submitted by
unanimous consent a letter from the United States Chamber of
Commerce. They comment in a letter to the Committee that the
existing State and local permitting programs will be made in
conflict, if not completely eradicated, by H.R. 2421. Again,
these are their comments, not mine. Land and water use
decisions, the Chamber also says, that once belonged to State
and local governments would become the jurisdiction of the
Federal Government and the cost of complying with new
regulations and requirements would amount to an unfunded
mandate on the States.
These are a few of the comments, again, and I have a
request. I would like, if I could, the Chamber of Commerce,
Associated Contractors of America, and National Stone and
Gravel Association, American Road and Transportation Builders,
American Forest and Paper Association, American Petroleum
Institute, the Central Arizona Water Conservation District, the
California Association of Sanitation Agencies, the Imperial
Irrigation District, and the Oregon Cattlemen's Association as
a sampling of these letters I received. I would like unanimous
consent that they be made part of the record.
Mr. Oberstar. The Chair will evaluate the length of the
documentation----
Mr. Mica. And if at least reference would be made.
Mr. Oberstar. Not all of the documentation is necessary,
but it will be received for the hearing record, but not all
documentation.
Mr. Mica. So, finally, a point that I want to make at this
time, this probably couldn't come at a worse time, because
right now we have troubled economic waters and this
legislation, I am afraid if we move forward with it, would put
another nail in our economic coffin, creating even more
uncertainty than we already have in the marketplace and driving
up the cost of producing almost any kind of U.S. product.
This legislation would also make it harder for our crippled
housing industry, which has really taken some blows, to come
back from its downturn and will require more regulation, spawn
more litigation, and generally increase the cost of every new
home constructed in America. This legislation would also have a
dramatic negative impact on America's agribusiness. If you
think food prices are high now, you have been to the store and
seen sticker shock, this has potential for creating even higher
food prices, cause further damage to United States
manufacturing ability, and create an unprecedented flight of
jobs to third world countries, because people will move those
activities where you don't have this kind of regulation and
litigation that will result.
I appreciate Mr. Oberstar's incredible dedication to values
of clean water. He is committed, as I am, to making certain
that our waters are clean and our streams, rivers, and
navigable waters of the United States are protected. However, I
believe that the Federal response must be measured in order to
accomplish the ultimate goal and not actually take steps back.
So I can't support the proposal in its present form, but I
sincerely offer all the resources of the Committee.
I know Mr. Boozman is committed to work--he has just taken
over as our Ranking Member--will work with Ms. Johnson, Mr.
Oberstar, and the staffs are ready to work with you 24/7. So if
we do correct some of the flaws in this legislation, we do it
together in the best interest of the Country.
Thank you, and I yield back the balance of my time.
Mr. Oberstar. There was no balance of time.
[Laughter.]
Mr. Oberstar. The gentleman has as much time as he needs to
express his views, and I appreciate the alarmist statement on
the introduced bill. As I said at the outset, this is a
proposal. For six years we haven't had a hearing on this
legislation. We have now had one and we are going through a
very extensive second hearing. We open this to all viewpoints
and seek common understanding to address worst fears, worst
concerns of people.
As I said in my opening remarks here and in the previous
hearing, I invited constructive proposals and open to
adaptations. This is not an inflexible document, the introduced
bill. It is a starting point for discussion, and we need to
understand what people's concerns are and to address this. The
objective is to return to the pre-Rapanos, pre-SWANCC state of
management of the Nation's waters and to assure that all the
water we ever had and ever will have on earth is with us today
and that we pass it on to the next generation in a better state
than we found it.
I appreciate the gentleman's statement about letters and
statements that he has received. We have got at least as many,
if not more. We have over 300 organizations that are supporting
the introduced bill. But, as I said, the objective is to make
adaptations to move ahead, and we have our starting panel of
very distinguished witnesses with specific expertise in the
subject matter and very technical issues before us, and we will
start with Assistant Secretary Woodley.
Mr. Young. Mr. Chairman? May I ask for unanimous consent to
submit for the record an opening statement?
Mr. Oberstar. The gentleman from Alaska is recognized and
the opening statement will be submitted without objection.
Mr. Rahall. Mr. Chairman, do all Members have that
opportunity?
Mr. Oberstar. All Members will be given unanimous consent
to include their statements for the record. It goes without
saying.
Mr. Boozman. Mr. Chairman?
Mr. Oberstar. Mr. Boozman.
Mr. Boozman. Could I say something in my new position?
Mr. Oberstar. The gentleman is recognized.
Mr. Boozman. Thank you, Mr. Chairman. This really is
important. I want to thank you, first of all, for your hard
work and the fact that you were there and a player in the
original Clean Water Act. I think that this is something that
we can look at. Sometimes Government screws things up, but the
tremendous gains that have been made as a result of the Clean
Water Act I think Congress can be very, very proud of.
I grew up in Fort Smith, Arkansas and occasionally went
fishing on the Arkansas River, and in the 1960s, early 1970s
the place was a cesspool. Now, people water ski and things like
that, again, as a direct result of the actions of this.
I do think, though, that the Supreme Court made a correct
decision based on the Constitution in that there are boundaries
over Federal intrusion on State and local jurisdiction. The
extent of Federal jurisdiction should not be boundless. State
and local governments and, indeed, private property owners
should have a role in managing their resources. The Federal
agencies are getting experience with the new guidelines. I
think we would like to see some recommendations at a later date
from the agencies that suggest legislative changes that need to
be made, if any, to help them run a program in an efficient
manner and in a way that protects the important water
resources, but also protects the rights of States, local
governments, and personal property owners to manage their own
resources.
I am concerned that the Chairman's bill, H.R. 2421, the
Clean Water Restoration Act, will substitute a more reasoned
approach to the regulation of important waters and, instead,
expand it to the fullest extent to cover activities that were
never intended to be covered. And I think we will hear
testimony today that that even extends perhaps even to
activities that take place on dry land and even in the sky. We
don't even truly know the extent of the bill's reach. That
would be determined over time to the extensive litigation that
the bill would cause. But it is hard to imagine a more
expansive piece of legislation.
So I look forward to hearing the witnesses today. And then
again, I hope that if we do embark on a significant change,
that we will do the due diligence that was done in the last
Congress, that if we look at the history, the testimony, the
tremendous amount of work that went into that as we tinker with
this, I hope that we will do the due diligence of the future.
Thank you very much, Mr. Chairman.
Mr. Oberstar. Thank you for your comments. I look forward
to working with the gentleman and with Members of both sides of
the aisle to achieve the purpose of this legislation, simply to
restore the original purpose and operation of the Clean Water
Act.
Now we will begin with Mr. Woodley. Secretary, welcome.
Thank you.
TESTIMONY OF SECRETARY JOHN PAUL WOODLEY, JR., ASSISTANT
SECRETARY OF THE ARMY FOR CIVIL WORKS; CHIEF ARLEN LANCASTER,
UNITED STATES DEPARTMENT OF AGRICULTURE, NATURAL RESOURCES
CONSERVATION SERVICE; THE HONORABLE BENJAMIN H. GRUMBLES,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ASSISTANT
ADMINISTRATOR FOR WATER; AND JOHN C. CRUDEN, DEPUTY ASSISTANT
ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT AND
NATURAL RESOURCES DIVISION
Mr. Woodley. Good morning, Mr. Chairman and Members of the
Committee. I am pleased to be here this morning to speak to you
about the Army's Clean Water Act Regulatory Program and its
implementation.
This Administration has supported the Regulatory Program
and wetlands protection by requesting increases in funding from
$138 million in fiscal year 2003 to $180 million in fiscal year
2009, a 30 percent increase. The Corps will continue to
administer this program to the best of its ability with the
resources provided, but certainly, Mr. Chairman, we will need
the Administration's fiscal year 2009 request to be fully
funded if we are to provide the level of effective
environmental protection and timely service to permit
applicants that we have provided in the past.
We have also worked to improve the program performance
predictability and transparency. A new compensatory and
mitigation rule was published earlier this month; new and
improved nationwide permits were issued in March of last year;
a new web-based tool is now on record and document information
on authorized activities and mitigation; and we have
implemented the GAO recommendations related to documentation,
mitigation monitoring, database development, and interagency
coordination.
Now I would like to briefly discuss how the two Supreme
Court decisions, SWANCC and Rapanos, have affected the
regulatory program and how we have responded.
In SWANCC, the Supreme Court held in 2001 the Corps could
not assert Clean Water Act jurisdiction over isolated, non-
navigable, intrastate waters based solely on their use as
habitat by migratory birds.
Clarifying guidance was published by Army Civil Works and
EPA reflecting this decision on the use of the migratory bird
rule as the sole basis of jurisdiction. As a result of that
decision, the Corps--and then in Rapanos, in 2006, the Supreme
Court required that Federal jurisdiction extended only to water
bodies that are traditional navigable waters or that
significantly affect the physical, chemical, or biological
integrity of traditional navigable waters.
As a result of the Rapanos decision, the Corps will
continue to, first, categorically assert clean water
jurisdiction over traditional navigable waters, wetlands
adjacent to traditional navigable waters, relatively permanent
tributaries, and wetlands directly abutting such relatively
permanent tributaries. Second, the Corps will determine whether
certain waters have a significant nexus with traditional
navigable waters. This means the Corps will determine and
document whether or not a tributary, together with its adjacent
wetlands, has more than an insubstantial or speculative effect
on the chemical, physical, and/or biological integrity of the
downstream navigable water. The kind of water falling into this
category includes non-relatively permanent tributaries,
wetlands adjacent to such tributaries, and wetlands adjacent
but not directly abutting relatively permanent tributaries.
Third, the Corps will generally not assert jurisdiction over
erosion features, upland swales, small washes, and many ditches
excavated wholly in and draining only uplands.
Based on the 62,000 comments received, of which 1500 are
substantive, and 18,000 jurisdictional determinations made, the
agencies are considering whether to revise, reissue, or suspend
that guidance.
Mr. Chairman, I understand that the intent of H.R. 2421 is
to recapture those isolated and ephemeral features and
associated wetlands that were determined not to be
jurisdictional in the Supreme Court holdings in SWANCC and
Rapanos, regardless of whether they affect the physical,
chemical, and biological integrity of navigable waters. The
Supreme Court in these decisions limited its jurisdiction based
on interpretations of the intent of Congress, and in
implementing the Court's decision, our approach has been not to
focus on a particular physical or geographical target for
limits of jurisdiction, but to make these determinations based
on a scientific, fact-based analysis with the potential effects
of these waters and their adjacent wetlands on the physical,
chemical, and biological integrity of navigable waters the
focus of the current law.
We do have several serious concerns with the draft
legislation as we understand it. First, it appears the general
consequence of the legislation would be to extend jurisdiction
beyond those waters determined not to be jurisdictional under
SWANCC and Rapanos. This appears to go beyond the original
intent of Congress in establishing jurisdictional reach of the
Clean Water Act, which reflected a careful balance between
legitimate and important Federal interest in protecting water
quality and equally important and longstanding interest of the
States in managing and allocating water within their
boundaries.
In addition to these serious concerns, we have a number of
questions that we would like to ask and the Committee may
consider: Is it appropriate to upset the Federal-State balance
established in the original Clean Water Act? How will removing
this term ``navigable'' from the Clean Water Act affect the
implementation? Will this extension of Federal jurisdiction
significantly increase cost to small landowners and other
interests? And what would be the budgetary workload and
processing time implications for Corps regulatory jurisdiction?
Because the bill specifically refers to perennial and
intermittent waters, one might conclude that the bill intends
that ephemeral features, which are currently evaluated under
the Corps significant nexus test are intended by the bill to
actually be removed from Federal jurisdiction. Further, it is
not clear whether the phrase ``activities affecting waters of
the United States'' might mean, as the term seems to be
essentially without boundaries.
Mr. Chairman, certainly, we look forward to working with
the Committee to explore these questions and to ensure that any
legislative change in the Clean Water Act is carefully thought
through with all of its implications considered.
Mr. Oberstar. Thank you, Mr. Secretary. I think those
comments are very targeted, very specific, and I will come back
to you with questions about specifics.
Now, Mr. Lancaster, Chief of the Natural Resources
Conservation Service at USDA. Thank you for being with us.
Mr. Lancaster. Thank you, Mr. Chairman, Members of the
Committee. Thank you for the opportunity to discuss the
activities of the National Resources Conservation Service. My
full statement has been submitted for the record.
Mr. Oberstar. Without objection, the statement will be
included in the record.
Mr. Lancaster. NRCS works to assist producers in meeting
their conservation goals through our technical and financial
assistance programs. We support private landowners and
conservation partners in efforts to restore, enhance, and
maintain our Nation's natural resources, including valuable
water and wetland resources.
It is clear from our experience that farmers and ranchers
know that profitable farming and maintaining clean water
supplies go hand in hand.
Based on data from NRCS's national resources inventory,
farmers and ranchers are protecting and restoring wetlands at
historic rates. Between 1997 and 2003, agricultural producers
across the Nation achieved an average net gain of 44,000 acres
of wetlands each and every year. USDA is also contributing
significantly to the President's goal for overall increases in
wetlands by protecting, improving, and restoring 3 million
acres of wetlands by 2009. On Earth Day last year, progress
towards that 3 million acre goal stood at nearly 2.8 million
acres.
A number of USDA's activities greatly contribute towards
those wetland and water quality objectives, including our
conservation compliance activities, STET voluntary land
retirement programs, and our conservation cost share assistance
programs.
USDA utilizes conservation compliance authorities to
discourage the production of agricultural commodities on
converted wetlands and highly erodible lands. For purposes of
the Food Security Act, wetlands compliance, known as
Swampbusters, and highly erodible land requirements must be
met. Violations result in loss of eligibility for USDA
benefits.
Through Swampbuster, producers have sharply reduced wetland
conversions from agricultural uses, from 235,000 acres per year
before 1985 to 27,000 acres per year from 1992 through 1997;
and our reviews of Swampbuster efforts indicate continued
increasing producer compliance levels for the program.
Highly erodable land compliance associated with our
conservation programs has resulted in a reduction of nationwide
soil erosion of 43 percent from 1982 through 2003, and a
corresponding reduction in nitrogen and phosphorus entering our
Nation's waters.
I would be remiss if I did not also mention USDA has
proposed a third compliance mechanism for the next Farm Bill.
The Sodsaver proposal would discourage conversion of range land
and native grassland in a manner similar to the current
Swampbuster provisions for the conversion of wetlands.
USDA also offers important land retirement programs that
assist in the creation, improvement, and restoration of
wetlands. The Wetlands Reserve Program, or WRP, is a voluntary
program through which landowners restore and protect wetlands,
in most cases with long-term or permanent easements. Private
landowners have enrolled over 1.9 million acres in this program
through fiscal year 2007, and demand for WRP continues to grow
as producers seek to continue to enroll their lands in this
important program.
The Conservation Reserve Program helps producers safeguard
environmentally sensitive land. Producers enrolled in CRP plant
perennial vegetation to improve water quality, control soil
erosion, and enhance wildlife habitat in return for rental
payments.
A majority of the over 34 million acres enrolled in CRP
consist of environmentally sensitive upland fields; however,
USDA has also enrolled 2 million acres of wetlands with
associated protective buffers in this program.
One of the key focuses of NRCS regarding water quality
improvements are a voluntary working lands program such as the
Environmental Quality Incentives Program, or EQIP. EQIP helps
producers achieve both their conservation and business goals,
as well as meet regulatory challenges. Between 2002 and 2006,
nearly 185,000 participants received more than $3 billion in
cost share and incentive payments under EQIP for the
implementation of structural and management conservation
practices.
An example of work in the regulatory realm, since 2002,
NRCS has helped producers develop 32,000 comprehensive nutrient
management plans that can help animal feeding operations comply
with regulatory requirements should their operations fall under
the Clean Water Act's Concentrated Animal Feeding Operation, or
CAFO, provisions.
In summary, USDA believes that NRCS authorities for
wetlands compliance and restoration activities under the Farm
Bill would not be affected by the proposed legislation. Since
our authorities are not associated with the Clean Water Act,
the change in definition would not impact our implementation.
It is, however, possible that enactment of H.R. 2421 would lead
to more producers falling under the regulatory purview of the
Clean Water Act, which in turn could lead to increased
compliance costs for producers and demands for our already
over-subscribed assistance.
As we look ahead, Mr. Chairman, it is clear that farmers
and ranchers are making significant wetland improvements and
water quality gains through voluntary incentive-based
activities. We want to build on that success. The challenges
before the Nation to protect and improve wetland resources will
require the dedication of all available resources, the skills
and expertise of NRCS staff, contributions of volunteers,
continued collaboration with partners--including local, State,
and Federal agencies--to provide farmers and ranchers the best
information and assistance possible to better able them to
continue to protect, enhance, and restore our wetland
resources.
I would be happy to respond to any questions.
Mr. Oberstar. Thank you very much. I appreciate your
excellent statement, which I found very fascinating. I read the
entire statement. I appreciate very much your contribution.
Now Ben Grumbles, Assistant Administrator, U.S. EPA, but
better known as a former staff member of the Committee.
Mr. Grumbles. Thank you, Mr. Chairman. Always an honor to
appear before you and your colleagues on this great Committee.
As you know, the objective of the Clean Water Act is to
restore and maintain the chemical, physical, and biological
integrity of the Nation's waters, and that includes wetlands.
All wetlands and waters have value. All wetlands and waters
have some ecological functions. But not all wetlands and waters
are subject to Federal regulation under the Clean Water Act,
and I think you know that very well.
This Country has made tremendous progress to achieve that
objective of the Clean Water Act as it relates to wetlands. In
the 1970s, this Country was losing 290,000 acres a year of
wetlands. Now we estimate that there is actually a net gain of
wetlands, 32,000 acres a year. That doesn't mean we can't and
shouldn't stop working hard to use the regulatory tools,
because we are losing certain valuable wetlands and we need to
continue to be vigilant. And in that regard, this
Administration is fully committed to protecting and restoring
wetlands, and not just ensuring no net loss, but as the
President stated on Earth Day, moving towards an overall gain
in the quality and quantity of the Nation's wetlands.
John Paul Woodley and I are very pleased with the
compensatory mitigation rule that was recently issued. We feel
that that is a market-based way to help ensure no net loss of
wetlands and it is a sign of 21st century ways to conserve
wetlands and protect them.
The SWANCC and Rapanos guidance are very important; they
are in response to the Supreme Court decisions. The Rapanos
guidance that John Paul Woodley and I issued in June of last
year we believe provides needed clarity and helps to increase
consistency and predictability in light of the Supreme Court
decisions. But we also realize much more work needs to be done.
The guidance laid out specifics of not just one of the tests,
the Scalia test or the Kennedy test, but described both of them
and that we would use either one; and it was accompanied by a
very detailed handbook and instruction manual.
We took nine months of comments and have been field-testing
that guidance. The received comments, essentially, to summarize
it crudely, many in the regulated community thought we went too
far, and some in the environmental community thought we didn't
go far enough. We also got some very good comments about
suggestions on how to streamline the process in terms of
jurisdictional determinations. We are taking that very
seriously and we are looking to our next steps to review,
revise, or suspend the guidance in the coming weeks.
In terms of your legislation, H.R. 2421, Mr. Chairman, I am
encouraged by the comments you have made at this hearing about
being open to change and clarification and adaptability. As is
stated in our written testimony, in mine, we do have concerns
about the legislation in its current form, programmatic impacts
in particular. I think it is very important to be able to
answer those relevant questions about the prior converted crop
lands and about waste treatment systems, very important
existing exemptions that aren't addressed directly in the
legislation.
I also think it is very important to look at other areas,
such as permit streamlining and how can the agencies and
Congress work to provide more incentives and encouragement for
States to assume the 404 program under 404(g) and (h). Only a
couple States have done that to date, and we think, in the
interest of federalism and increased wetlands conservation,
that is a very important area for the Congress to look at.
Mr. Chairman, we stand ready to work with you and your
colleagues to improve the legislation. We are very committed to
ensuring continued progress on implementing the guidance and
working to use the tools under the Clean Water Act, as well as
other tools, cooperative conservation tools, with our partners
at USDA and Interior to continue to work to protect and restore
America's wetlands and waters. We feel that by working together
we can all make progress towards that objective of restoring
and maintaining the chemical, physical, and biological
integrity of the Nation's waters, including wetlands.
Thank you.
Mr. Oberstar. Thank you very much, Mr. Grumbles, Mr.
Secretary, for your contribution, for your thoughts. I know
that in you we have a seasoned, experienced practitioner and
that we can work our way through these issues. Your comments on
streamlining, I think, are very important. We look forward to
pursuing your further thoughts about that and your
reaffirmation of the no-net loss policy of the first Bush
Administration and affirmation, as Mr. Woodley said, that the
Clean Water Act is a key part of the President's wetlands
policy. Those are very, very important contributions.
Mr. Cruden, we do have a vote in progress; we have 10
minutes remaining. I would like to have your statement on
record before we break for the vote.
Mr. Cruden. Mr. Chairman and Members of the Committee,
thank you very much for inviting me to testify. You have my
full statement. I am a Deputy Assistant Attorney General with
the Environment and Natural Resources Division at Department of
Justice. We do all of the Federal environmental litigation,
including well over 7,000 cases involving over 70 statutes. An
important statute, one that we are dedicated to enforce and
protect is the Clean Water Act, and we normally do that on
behalf of the Environmental Protection Agency and the Corps of
Engineers. They, of course, have broader authority and
administrative enforcement, which we are not often involved in.
When we litigate any of our cases, but particularly those
involving the Clean Water Act_whether or not we are enforcing
against a company that is illegally discharging or we are
trying to protect wetlands_our first step is always to look at
the statute. And, as has been repeated today many times
already, that statute directs us to restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters.
The cornerstone of that great statute is section 301, which
prohibits the discharge of a pollutant from a point source
without a permit. As all of you know, the discharge of a
pollutant is defined by the Act as any addition of any
pollutant to navigable waters, and navigable waters is further
defined as the waters of the United States. EPA and the Corps
of Engineers have regulations defining and implementing that
term, and we have been litigating those issues for many years.
A significant trio of Supreme Court decisions have focused
on Clean Water Act issues in general, and more specifically,
section 404, which is the wetlands protection section.
The Riverside Bayview decision in 1985 addressed one key
issue, and that was whether or not the Corps was authorized to
require landowners to obtain permits before discharging fill
material into wetlands adjacent to navigable bodies of water
and their tributaries. The Supreme Court unanimously agreed.
Then later, in SWANCC, the Supreme Court decided that
isolated, non-navigable, intrastate waters did not become
waters of the United States based solely on migratory bird
usage.
The Rapanos case, however, requires a bit more explanation.
The judgment of the Supreme Court was to vacate the two
decisions of the Sixth Circuit, but there was no majority
opinion. Instead, we had five separate opinions, including a
plurality opinion authored by Justice Scalia and a concurring
opinion by Justice Kennedy.
But I want to point out one thing that is often overlooked
about the Rapanos decision. The one issue that all Justices
agreed on is that they rejected the position that waters of the
United States were limited to navigable_in fact_waters. That
was rejected.
But the plurality opinion has a two-part test: whether the
wetlands in question are near waters with a relatively
permanent flow and, if they are, whether the wetlands are
adjacent to those waters in the sense of having a continuous
surface connection. Justice Kennedy concurred in the judgment
of the Court, but he had a different standard. He asserts that
we should be looking at whether or not the specific wetland in
question possesses a significant nexus to the traditional
navigable waters.
Applying Rapanos has been challenging. The Department has
vigorously litigated the position that we can establish
jurisdiction by meeting either the test authored by Justice
Scalia or the test authored by Justice Kennedy. We believe that
is the best way to fulfill the statutory mandate and is in
keeping with the decision.
In the 22 months since Rapanos was decided, the Department
has now filed more than 45 briefs in over 30 Federal court
proceedings in which this issue was in question. Right now we
have about 20 decisions applying the Federal Rapanos standards.
In my prepared testimony there is a table summarizing those
decisions. We have done well in many cases, but not in all.
Our intent at the Department of Justice is to move
aggressively forward in every case to protect wetlands and to
do that consistent with the statute, the core regulations, and
applicable case law.
I look forward to your questions. Thank you.
Mr. Oberstar. Thank you for a very thoughtful and far-
reaching discussion of the Act and of the court cases, and for
the substantive backup in your written statement, which will be
included in the record. I want to explore those issues further
with you.
But we will recess for the vote and resume within 15
minutes after completion of the last vote in this series.
Committee stands in recess.
[Recess.]
Mr. Oberstar. I have a question for Mr. Cruden that I
thought would be the lead-off question, but we will wait until
he returns.
Mr. Grumbles and Mr. Woodley, when he returns, what would
be the effect of leaving in place the term ``navigable waters''
where it appears in the Clean Water Act, not deleting that
reference, as proposed in the introduced bill, and including
legislative reference to the prior--that is, prior to Supreme
Court decision--regulatory rules published by EPA and the
Corps?
Mr. Grumbles. A reference to all of the regulatory rules
published by EPA and the Corps or some of them?
Mr. Oberstar. Or some selected ones that are pertinent to
the issues that we are concerned about. Pertinent to, let us
say, the eight exemptions provided in the Clean Water Act on
which there is a regulatory body.
Mr. Grumbles. Well,----
Mr. Oberstar. And a reference to prior converted farmland.
Mr. Grumbles. And waste treatment systems?
Mr. Oberstar. Yes.
Mr. Grumbles. My initial response is--well, the obvious
initial response is that this would be something that we would
want to look at, the lawyers in the agency, EPA in particular,
to see how that would play out, the new language you are
adding. I am assuming your question also assumes that you would
keep in language in the bill that uses a new term, in lieu of
using the term ``discharge'' uses the term ``activities,'' that
any activities affecting waters of the U.S. would be subject to
permitting. So I think that would still----
Mr. Oberstar. The question is--that is a separate issue----
Mr. Grumbles. Okay.
Mr. Oberstar.--because the question with respect to that
matter is does that extend beyond the reach of the Clean Water
Act as we knew it prior to SWANCC.
Mr. Grumbles. Right.
Mr. Oberstar. That is a separate question you can answer.
Mr. Grumbles. I think there could also be some questions
asked about the applicability date or retroactivity of the
language of the legislation. I would say that we would need to
look at it closely and carefully. I would also say that by
leaving in the term ``navigable waters,'' that would be a step
towards reducing a potential wave of litigation over
constitutional issues. It still, I think, would be important to
look at the full array of what the bill would look like, even
if you change it to leave in the term ``navigable waters'' and
then, as I understand the question, you would then be
referencing in some way--and I think it would be important to
see exactly how you would reference all the existing regs that
the Corps and EPA have issued; you said eight exemptions or
provisions. So it is something we would commit to look at and
to give you our best guess on what the impact would be.
Mr. Oberstar. I don't know if you can read it up there on
the screen. This is a document of the specific EPA and Corps
regulations: all waters currently used, were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including all waters subject to the ebb and flow of the tide
and the regulatory practice associated therewith.
Mr. Grumbles. If the intent is to try to more closely
restore, rather than expand, jurisdiction, that is probably an
important step in the right direction. I think, seriously, we
would need to have our lawyers for the EPA and the Corps look
at it more carefully, but----
Mr. Oberstar. Would you say conceptually that that would
remove, subject to parsing words, uncertainty about application
of the Clean Water Act post-SWANCC-Rapanos to a status quo
ante?
Mr. Grumbles. Then I would ask what is the bill doing. You
are attempting to overturn certain aspects of the SWANCC
decision and the Rapanos decision to prevent the application of
a significant nexus test or a relatively permanent waters test.
I think by leaving in navigable, that is a step towards
reducing potential constitutional litigation. I think what we
would want to focus on in your question is exactly how you
would reference what stature you would give in the reference to
those existing regs while you are also adding additional
provisions in the bill, new terms.
Mr. Oberstar. Since the concern is that changing the
language as I initially proposed to do would create a great
deal of uncertainty about the future, then let us leave in
place navigable waters, return to the language of the
conference report that said the Committee of Conference intends
the widest possible application of the term ``navigable
waters'' and ``waters of the United States'' to include
watersheds, and that is the spirit in which the Act was
administered up until SWANCC-Rapanos. So I want to restore the
status quo ante.
And then the separate question is prior to SWANCC-Rapanos,
did EPA and the Corps need to identify a jurisdictional nexus
to a navigable water in order to assert jurisdiction of the
Clean Water Act?
Mr. Grumbles. Well, John Paul, if you want to also weigh in
on this. Prior to SWANCC and Rapanos, under our regulations, we
laid out at least seven different ways to assert jurisdiction
over waters, including wetlands. One was traditional navigable
waters test. We did have, in particular, one for tributaries,
asserting jurisdiction over tributaries and also for adjacent
wetlands. The SWANCC case was focused in on the (a)(3) waters
of the regs, which is intrastate, non-navigable, isolated
waters, and there we have taken the view that there needs to be
some connection to commerce, an interstate commerce connection.
Mr. Oberstar. Have any waters lost protection as result of
the two Supreme Court cases? Are there bodies of water that
were considered protected pre-SWANCC-Rapanos and lost that
protection subsequently?
Mr. Grumbles. Well, in our guidance and, so far, lessons
learned in the nine months since implementation of the
guidance, the June 2007 guidance, our guidance did not
categorically exclude, and we didn't interpret the Supreme
Court various decisions to categorically exclude certain
waters. What we have found is there has been a slight, not
significant, decrease in coverage in some respects, and, Mr.
Chairman, obviously, when you get further up in the watershed,
towards the headwaters, more into some of the ephemeral streams
that are really based on the weather patterns, we have observed
that there may be less likelihood of jurisdiction under the
Federal Clean Water Act in those cases.
Mr. Oberstar. And that is a very important point. If you
consider the case of New York City, which acquired the entire
watershed upstate, from which their drinking water is drawn, in
order to have total control of it, so they wouldn't have to go
through regulatory proceedings--they just bought the land--they
understand that the watershed is the beginning point of any
introduction of toxics into the stream. So they acquired the
watershed.
Mr. Grumbles. The other point is the truly isolated,
intrastate, non-navigable waters, such as ponds or certain
wetlands. The SWANCC case was clear that the agencies could not
rely on that migratory bird, the language in the preamble of
the regs, to assert jurisdiction over those. So the record is
very clear that we have not seen jurisdiction asserted over
isolated, intrastate, non-navigable waters in many instances.
Mr. Oberstar. I will come back to the migratory birds.
I just want to ask Secretary Woodley to give your response
to the question I raised. Although you weren't here for the
first part of the question, but you understand what I am
getting at.
Mr. Woodley. Yes, sir. I think that the reduction in
asserted jurisdiction was much more significant under the rule
in the SWANCC decision than we have experienced under the
Rapanos decision, although the Rapanos decision has yet to have
enough experience under it to say for sure. The difference is
that under the Rapanos decision, you are essentially
questioning how far in the tributary system the Federal
jurisdiction should go, so that you assume that the waters are
connected to larger water bodies, and the question is how far
up that tributary system should we extend Federal jurisdiction.
The previous rule under the regulation was that we would
assert jurisdiction over any tributary that showed an ordinary
high water mark, whether ephemeral, intermittent, or perennial,
and our guidance is, we believe, in line with the decision or
with the opinion of Justice Kennedy, which was that the
ordinary high water mark is a consideration and should be used,
but he seemed to indicate that it was not sufficient by itself.
We had been having a rule that the ordinary high water mark was
sufficient by itself. So what we are looking for now is other
indications of significant contribution or potential for impact
on navigable water in addition to the ordinary high water mark.
Mr. Oberstar. See, there is this very extraordinary
situation that results from these decisions. Are you doing a
Scalia interpretation, are you doing a Kennedy interpretation,
are you doing a somebody else's interpretation? These judges
are sort of legislating from the bench, and when they were
appointed they were given the charge to interpret the
Constitution.
Mr. Cruden, my last question for this panel is my reading
of the two Court cases, I do not find any question raised by
the Court as to the constitutionality of the Clean Water Act.
Mr. Cruden. Yes and no. Neither of those decisions, as you
have correctly stated, deal with the constitutionality of the
statute, and they state that in the opinions. On the other
hand, I have to say both decisions, certainly the SWANCC
decision, written by then Chief Justice Rehnquist, and the
decision in Rapanos, both say they are not dealing with the
constitutional issues because the opinions are invalidating or
addressing the regulatory issues. Although that is one way of
not reaching the constitutional issues, both cases express some
concern about constitutional issues.
I will say, in response to the other question about sort of
the evolution of litigation_maybe this is helpful. When I am
talking to my own lawyers about how we have evolved through
these three Supreme Court cases, I very often tell them that we
have gone through three different eras of litigation, which I
describe as the test of ``where,'' the test of ``whether,'' and
the test of ``what.'' By that I mean that before SWANCC we were
litigating ``whether'' or not something was a wetland, and very
often we were proving soil hydrology or the ordinary high water
mark. Then SWANCC came out and then we started litigating
``where'' the location of the wetland was. By that I mean, was
there a hydrological connection? I think we are now going into
a third era of litigation, which is ``what'' is that wetland.
That is, ``what'' is the value of that wetland or, in Justice
Kennedy's words, is there a significant nexus between the
wetland and the traditional navigable waters? So each one of
these Supreme Court cases have pushed us in litigation in a
different direction than we had been before that case.
Mr. Oberstar. Thank you all for your contribution.
I now recognize the gentleman from Arkansas, Mr. Boozman.
Mr. Boozman. Thank you, Mr. Chairman.
Again, I want to thank all of you all for the hard work,
working as a team. You all have a great story to tell in the
sense that the agencies have really made a tremendous impact.
Today, when I read the testimony of the proponents of the
legislation, it seemed like they were really saying two things.
First of all, one of their arguments was that this bill would
just clarify, go back to the criteria that you all were using
prior to the Rapanos decision, and that there would be no
additional jurisdiction. The other argument is that the
language in the bill makes it such that instead of having the
problems of not knowing what was regulated, this would make it
much easier in that we would have less litigation.
Can you address the first one? Again, when we compare what
you were using prior to the decision that struck things down
and tightened things up a little bit, can you compare that to
the scope of the bill in question? In reading your testimony, I
think, again, to me, it was pretty evident that you feel like
the scope is going to be changed dramatically. Is that correct?
Mr. Grumbles. I will start. A couple points I would make,
Congressman. One is the term activities, by including in the
bill that it is not just the discharge of dredged or fill
material that triggers a permitting requirement, but that it is
activities that would do so, begs a lot of questions for the
scope, how much broader might that be, does that pick up
certain non-point source activities, and I think----
Mr. Boozman. So could that be building?
Mr. Grumbles. It can be a wide array of different things,
sources of diffuse pollution, but it could be building or----
Mr. Boozman. But the reality is it really could be almost
anything, couldn't it? I mean, that is what it is saying, is
that whatever it is is affecting, then it is.
Mr. Grumbles. Well, it is a term that would, just from my
perspective as an implementor, it would need a lot more
clarification as to what it really means, and it likely would
be expanding.
Mr. Boozman. But it would broaden the scope of your
jurisdiction.
Mr. Grumbles. Probably, yes. And the other point is
findings are findings, but the findings do lay out a ray of
additional provisions, constitutional authorities that might be
used, so without further clarification could also be the basis
for additional litigation, or at least uncertainty as to how
the drafters really intended the bill to be implemented.
Mr. Boozman. So you would say that--again, we have got 30
years of kind of grappling with the other intent--this really
would put us back essentially starting over, wouldn't it, as
far as trying to figure out what it means?
Mr. Grumbles. I wouldn't go that far. I would say that it
has been a long time since the Congress has amended the 404
program, the Clean Water Act as it relates to 404 in a
meaningful way, and that by adding new terms, it would require
a lot of clarification and probably a fair amount of
legislative history as well; and when you add new terms to an
area of the law that has been one of the most litigated in the
history of the Country, it is likely to add additional
litigation, even if the bill is not that long.
Mr. Boozman. Right.
Secretary Woodley, in your testimony, again, in my reading
it, it seemed to indicate that you felt like the jurisdiction
would be enhanced a fair amount. Can you comment on that,
potentially?
Mr. Woodley. Yes, sir, probably. And I would certainly
identify the same thing that Assistant Administrator Grumbles
identified, and then the reference--I am a little confused in
that context by the reference to intermittent and non-ephemeral
streams in that same section, because we now assert
jurisdiction over quite a few ephemeral streams even under the
current rule, and if it was intended that those not be
included, then that would actually be a contraction of
jurisdiction. So there are certain elements of the statutory
language that would be very much open to litigation going
forward is the most I would say.
Mr. Boozman. H.R. 2421, reading the statute, could that
apply to groundwater?
Mr. Grumbles. Well, I was going to say that that is a fair
question. From an EPA perspective, as we look at the geographic
scope of the Clean Water Act, it is a fair question to ask.
Congressman, I don't have a legal conclusion on that; I think
that is a fair question to ask. And that is another example of
an area that the Committee might want to clarify, as to it
intent on the scope, because if the answer were yes, that would
be a significant change in practice.
Mr. Boozman. In your testimony, you mentioned that you had
some concerns about the exemptions, the prior converted crop
land and waste treatment systems, and the potential implication
of the omission of those. What are the potential implications
of omission?
Mr. Grumbles. One would be litigation, but the most
important one is, over the years, since 1993, the agency, EPA,
has had a regulation on the books that said prior converted
crop lands, if they were converted prior to December 23rd,
1985, it would not be waters of the United States for purposes
of the Clean Water Act regulation. It may well be the intent of
the drafters to leave that in place; it is just that when there
are certain savings clauses and provisions that are in the bill
and you leave some of them out, such as the prior converted
crop land one, it could be interpreted as meaning to change
that. So that would lead to regulation of those prior converted
crop lands if that----
Mr. Boozman. The other thing is, again, for you guys, are
there other potential regulatory emissions at risk. And then
also the very fact that you are leaving it out, I mean, that is
a statement in itself, isn't it?
Mr. Grumbles. It can well be. The other one that we have
discussed both in the 402 permitting program and in the 404
program is the importance of the waste treatment system
exclusion. And I know the Chairman has mentioned something
about clarifying that as well, but that is a good example of
one that people have commented on and that we have asked the
question as well, is how would the bill, as it is currently
drafted, apply, would it affect that or change it or reduce the
ability to use that important exemption.
Mr. Boozman. Well, thank you, guys.
Thank you, Mr. Chairman.
Mr. Oberstar. Mr. Rahall.
Mr. Rahall. Thank you, Mr. Chairman. And a special thank
you to you for holding today's hearing at the request of
several Members of this Committee. The witnesses have been
certainly very professional in their responses and targeted,
and all of us deeply appreciate that.
Mr. Chairman, in my capacity as Chairman of the House
Natural Resources Committee, I am certainly well aware how
sensitive issues involving clean water are, and that our
national parks, forests, and wildlife refuges would be in
greater peril than they already are if the waters within them
were not suitable to support their various ecosystems. Our
Committee has regularly dealt with issues involving reserve
water rights, Indian water rights, sediments and irrigation
policies, etc., and what I have certainly found is that old
maxim out West applies, that is, whiskey is for drinking and
water is for fighting over.
[Laughter.]
Mr. Rahall. Now, I don't mean that to be the case here
today, certainly not during this hearing, but there are
concerns, which have already been expressed, that many of us
have with the current bill as currently crafted, and certainly
I am very happy to hear Chairman Oberstar mention that it is a
work in progress and open to a great deal of discussion and
work as we proceed.
But the one phrase that has caught a lot of our attentions,
and I believe you answered part of this question during your
response to Chairman Oberstar, although I missed the initial
question, and that is the phrase ``unintended consequences.''
Now, I do not doubt the intent of the bill's proponents who
say that the pending measure would simply return things back to
the way they were prior to the Rapanos decision. My concern is
that by pulling a thread, we may unravel the universe. In this
case, by removing the term of art ``navigable waters'' from the
statute, we may adversely impact the entire Clean Water Act
regulatory universe.
So with that, Mr. Chairman, I do want to thank you for this
additional day of hearings and ask Mr. Woodley, if I might, and
Administrator Grumbles, Secretary Woodley and Administrator
Grumbles, in both of your testimonies you mentioned this
phrase, your concern over the removal of the term ``navigable
waters'' and the effect other provisions of the Clean Water Act
may be affected and the regulatory program. So I would like to
ask both of you, if you would, to just go into that just a
little bit further and elaborate on what the unintended
consequences of such an action as removing the term ``navigable
waters'' would be. As I say, I believe you both have responded
in some form to this previously, but if you could just target
in a little bit more on it.
Mr. Woodley. Yes, sir. I guess the main point is that the
statute to date has seemed to make a distinction between those
waters that are and ought to be subject to Federal jurisdiction
within this program and those which are not, so that
essentially, there is somewhere on the landscape, a line that
the Federal Government should remain and the Corps of Engineers
should remain on its side of that line when it asserts its
jurisdiction. Right now, that line is tethered to, under the
cases that we have had, navigable waters, and you define that
line by its relationship to navigable waters. If there is to be
no line, then that is a very important decision. But it does
not appear to be the intent of this Act that there be no line.
If there is to be a line, then we need to make certain we know
what it is tethered to. So that is the difficulty with removing
``navigable waters'' and not using navigability as a base.
Navigable waters are not the only waters that we regulate, but
they are the tether to which our regulatory jurisdictional line
is moored.
Mr. Rahall. If you pull that thread, then the whole
universe may unravel.
Mr. Woodley. That is more dramatic than I would put it.
Mr. Grumbles. Mr. Chairman, thank you for the question. The
Administration vigorously defended the Clean Water Act in the
Rapanos decision, and the SWANCC decision as well, to make sure
that there wasn't an outcome that said only navigable waters
or, more precisely, only waters that are navigable in fact are
covered by the Clean Water Act. In our view, and I know it is
the Chairman's view, that would be inconsistent with
congressional intent and the way the Clean Water Act has
worked. So the key for us has been, in this discussion, this
debate, avoiding unnecessary litigation or potential
constitutional litigation, not as it being unconstitutional on
its face to remove the word ``navigable,'' but really more, in
my view, as applied to specific circumstances or cases where
you might get unintended consequences. And as John Paul Woodley
has stated, we have always used that as a basis--it is not the
only basis--so it would be a new area if the word were deleted
from the Clean Water act.
The other unintended consequence is really, as we said,
when you are amending one of the most heavily litigated
sections of environmental law in the Nation's history, it needs
to be very clear what key terms really mean, particularly if
you are also deleting some terms from the statute. And we have
got a lot of regulations, not just for the 404 wetlands
program, but for the streams and waters under 402, that we
would want to look at carefully for potential unintended
consequences by removing terms or adding new undefined terms to
the statute that the bill would do in its current form.
Mr. Rahall. Thank you.
Secretary Woodley, you mentioned in your testimony that
H.R. 2421 may upset the balance between the Federal interest in
protecting water quality and the interest of States in managing
and allocating land and water resources. Could you elaborate on
that, please?
Mr. Woodley. Yes, sir. And I bring to this discussion a
certain perspective I had. Before I joined the Federal
Administration, I was responsible for, among other things as
Secretary of Natural Resources of the Commonwealth of Virginia,
I had responsibility for the State programs for wetlands
regulation, and I believe that the States are very pleased, in
general, and are very accepting of the very broad Federal role
in wetlands regulation. But I believe that is true as long as
it is clearly tied to the historic Federal interest in
navigability and commercial navigation in interstate commerce.
When the Federal Government moves into an area, as you
know, Congressman, it has a very strong tendency to take over
everything related to that area, so I believe that the States
would want to understand_and I think that we on the Federal
side would want to understand_exactly what role we were leaving
for the States to undertake in this arena; the Clean Water Act
gives the States a very important role as it is currently
established, and we want to be certain that we are not making
changes to that that people won't like in the future.
Mr. Rahall. Thank you.
Thank you, Mr. Chairman.
Mr. Oberstar. The gentlewoman from Michigan, Mrs. Miller.
Mrs. Miller. Thank you very much, Mr. Chairman. I am so
appreciative of all the witnesses being here today. I heard all
your testimony; I have missed a couple questions, so hopefully
this one hasn't been asked.
It is interesting, this entire debate over this piece of
legislation. As you gentlemen might know, the Rapanos case
actually came from Michigan and the companion case to the
Supreme Court actually emanated from my congressional district,
a piece of property about 20 miles from my home; maybe only 10.
It is not very far, anyway. So my constituents and our entire
State, obviously, has been following all the litigation to the
Supreme Court and the subsequent introduction of this
legislation. And I appreciate the Chairman's comments at the
beginning that really the goal of the legislation is not to go
beyond what the standard was before the Supreme Court action
and sort of looking at previous practice.
One of the reasons, probably one of the largest reasons I
even ran for Congress was because of protecting of our
magnificent Great Lakes. So I am a huge proponent of,
obviously, the Clean Water Act, and I would be a person that
you would think would naturally be predisposed to want to
support this legislation.
However, I do have a lot of consternation as well: that it
is overly broad, that it is too far reaching. And I think much
of that has been talked about already, but I guess I would just
throw out generally for the panel do you have any suggestions
on how our Committee might amend this legislation in its
current form to really try to achieve our goal, which is to get
back to previous practice prior to the Supreme Court decisions
without leading to additional litigation and getting us right
back into the soup and where we find ourselves today?
Mr. Grumbles. I would offer a couple observations,
Congresswoman.
One is, I think it is a step in the right direction to
consider revising the bill not to delete the term, navigable
waters. I think all of us agree that the Clean Water Act
applies to more than just traditionally navigable waters or
waters that are navigable in fact, but that could lead to a lot
of questions and concerns or unintended consequences.
Congresswoman, I also think that there are some key
provisions in the bill that need clarification, the use of the
word, activities, rather than discharge of dredge or fill
material. But activities, that is not speaking to geographic
jurisdiction but the types of activities that would trigger
Federal permitting requirements, and I think that one needs to
be more focused and discussion on what that really means and
also what the implications would be. It would probably be
picking up a lot of previously unregulated types of activities.
The other, some of the other, as we were discussing, is
that the bill does incorporate or attempts to reflect a large
percentage of regulations that the Corps and EPA have on the
books, but it doesn't do it all in toto. Therefore, you have to
ask questions about well, by leaving out some of the exemptions
or provisions, does that mean that those exemptions or
provisions are affected in some way? And so, that is an area
that needs to be considered further and clarified.
Mrs. Miller. Let me just, if I can understand your answer,
so you think we should delineate the term, activities to more
closely get to what the Congress' intent is?
Mr. Grumbles. Well, my view is that that is a controversial
component of the bill and that the Committee should discuss
further as to whether or not that is an appropriate approach to
take in the bill, expanding the activities jurisdiction,
potentially expanding it.
But if the Committee were to decide to do that, I think it
would certainly be helpful to EPA and everyone else to
understand better what that phrase, that word, activities,
means because that could apply to a wide array of things and
actually lead to greater confusion or uncertainty than the
current situation.
Mrs. Miller. I only have 30 seconds here, but what about
prior converted cropland and some of these that are not
exempted? What is your thought about that language?
Mr. Grumbles. And there isn't language in the current
version of the bill on that, and I guess the point is it is one
of the examples that comes to mind as a regulation that is on
the books in the EPA regulations that is not specifically
referenced or waived in or there is not a savings clause with
respect it.
So it does prompt the question of what would be the
implications? Does this bill in some way reduce or adversely
affect the existing regulation that exempts prior converted
cropland?
Mrs. Miller. Thank you very much, Mr. Chairman.
Mr. Oberstar. Good questions, good points to raise.
I just want to observe, Mr. Grumbles, that the regulations
already address activities. I compiled a list of current EPA
and Corps regulations that I would propose to address in the
body of the substitute legislation, including the meaning of
waters of the United States means those waters which are used
or could be used for industrial purposes by industries and
interstate commerce, all impoundment of waters, tributaries of
waters, territorial sea and the wetlands. Those are already
listed in Corps-EPA regulations as activities.
If we limit it, does that define the scope of activities?
Mr. Grumbles. When I think of the provisions, I don't think
of those so much as activities. I think of those as categories
of waters--the A1, A5, A7, A3 as categories of waters--more
than the types of activities that trigger a permitting
requirement.
So what I would like to do, Mr. Chairman, is talk further
with you and your staff about exactly what you are attempting
to do.
Mr. Oberstar. The attempt is to define where the waters are
and to list, describe those waters and to define them as
activities, but that is fine.
The term, prior converted cropland, though, does not appear
in the Clean Water Act, in the body of the Clean Water Act at
all.
Mr. Grumbles. Right.
Mr. Oberstar. We did not make reference and I did not make
reference in my bill to items that were not in and savings
clauses that were not in the Clean Water Act as amended, but
including prior converted cropland is another step that I
certainly am open to.
Mrs. Tauscher.
Mrs. Tauscher. Thank you, Mr. Chairman, for holding this
hearing, and I think that H.R. 2421, the Clean Water
Restoration Act, is a very good bill and should be passed.
These recent Supreme Court decisions have created a
situation, I think, that really no one can live with. The
current jurisdiction on certainty is not viable, and we must
work to clarify this issue.
I think the current version of the bill is a good step.
Bills always can be perfected. That is what the process is
about. We call it curing. So the more we have people give us
input, the better off we are going to be.
But I do believe that it is an important step to reaffirm
the existing Clean Water Act exemptions in the bill because
manmade conveyances, ditches, treatment lagoons were never
considered as waters of the United States and are important to
the successful treatment of wastewater. In California, where we
lead the Nation in many things, including this issue, we would
like to know that wastewater treatment exemption is included in
the legislation.
So, Administrator Grumbles, you know I am concerned, as
many people are, about the impact of SWANCC and Rapanos and
that they are having on our decisions here today.
Recently, a letter by Associate Administrator, Christopher
Bliley, to the Committee, the EPA declined to pursue
enforcement actions 304 times between July of 2006 and December
of last year because of concerns that the water was not
jurisdictional due to the Rapanos decision. These instances
include point source discharges, oil spills and the 404
program.
Can you describe what one of these instances might look
like and, for example, what would a Section 311 oil spill look
like and what would EPA typically do in that situation?
Mr. Grumbles. I will take a stab right here, but I think it
would be best to also commit to get back to you.
Mrs. Tauscher. For the record.
Mr. Grumbles. For the record, for something that is more
thorough and perhaps more accurate because I don't know the
specifics of it.
What you have is an example where the agency, using its
enforcement discretion, makes decisions as to how strong of a
case it might have and also the gravity of the harm and takes
these into consideration on whether to move forward with an
enforcement action. Jurisdictional questions or potential legal
obstacles to successful enforcement action could include
arguments that the waters are not jurisdictional under the
Clean Water Act.
The 311 program uses the same definition of waters of the
United States for spills, spills that could be spills on land
but spills that are close enough that could get into the water
or potentially have the potential to get into the water, and
those could be jurisdictional under the 311 program.
We find that in our efforts to implement the Clean Water
Act after SWANCC and Rapanos, that based on the tests--and we
will use either the Scalia test or the Kennedy significant
nexus test--it may be more difficult to successfully assert
jurisdiction cases when you go further up to the reaches of the
watershed where there is less of a connection or less apparent
of a connection to a traditionally navigable water.
Mrs. Tauscher. You can see why we are concerned. Three
hundred and four times in an 18-month period is a lot of times.
It is a lot of bad things happening, and it is a lot of nothing
then happening.
What our concern justifiably is that precedent has not been
set that these are now not things that are being acted on.
Precedent, as you know, in this town and in the Federal
Government sometimes supersedes reality and even wise judgment.
What our concern is that there is now been this long time
where many things have happened that are bad and that nothing
has been done and that the precedent now is set that those did
not meet a test, and that test is ambiguous because of these
decisions. So we come right back to where we were, and I think
that we have real concern about that.
I am not a lawyer. I don't play one on television, but I do
write laws which is a very dangerous thing, apparently. So I
think that what we are trying to do here and what we need help
and cooperation on is to get out of this ambiguity.
Mr. Grumbles. We support that, and John Paul Woodley and I,
our two programs, are committed to increasing the
predictability, the certainty, the jurisdictional scope.
Then in addition to that, based on the Supreme Court
decisions, we know that it is very important to work with the
States, our State partners to increase stewardship, to help
develop programs, build capacity for State wetlands protection
programs so that for those waters that may not be covered by
the Clean Water Act even before the Supreme Court decisions.
Mrs. Tauscher. I agree with you, but if the Chairman will
indulge me, we don't want to go back to a 50-State patchwork
quilt again. That doesn't help us either because we all know if
we can all name five instances where these waters area actually
borders and are shared by numbers of States. So we don't want
to go to do that either.
We need the Federal Government to speak clearly and
predictably, and we need to get past the situation that we have
now which has too much ambiguity, too much time where bad
things have happened, and there has been no action that has
caused a precedent where people cannot expect what will happen
and where we find ourselves, I think, in a decline of
protection as opposed to the kind of thing that the American
people expect us to have.
I appreciate your efforts. I appreciate your agreement to
work with us. I know that you have a record of doing that.
Mr. Chairman, once again, thank you for a great hearing.
Mr. Oberstar. I thank the gentleman.
Mrs. Drake, the gentlewoman from Virginia.
Mrs. Drake. Thank you, Mr. Chairman.
Thank you, gentlemen, for all being here.
I think we can all agree that there is just a sort of a
lack of understanding, a lack of what the definitions are.
Mr. Chairman, in your opening statements, I really
appreciate that you talked about improvements that have been
made since the Clean Water Act has come into play. I think
often we don't do that, and that is to really recognize that we
have made some great strides, that we certainly have more work
to do, but I would want to bet that every person sitting in
this room wants the end result of this to be to protect our
environment and to make sure we aren't doing things that are
harmful and to find the balance that we are all looking for.
I sat in the first hearing and what really struck me was we
were all asking the same questions over and over and over
again, and it was an example of definitions and what does it
mean by using these new terms and are we really talking about
unintended consequences and the example of pulling the thread
and the universe unraveling.
But my question is have your agencies done something almost
like a comparison or an outline of this is existing law, this
is the way you interpret this new bill to be?
Because we have all heard the Chairman say that he is open
to recommendations. He wants input. This is a starting point.
The more I listen to people, including today, I think people
want an easier process. They want to know that things are being
done with certainty and that people aren't waiting 8 years and
$250,000 worth of costs to move a project forward.
So one of my questions is in trying to understand what this
bill is and does this bill really clarify like we hear or does
this bill have such unintended consequences because there are
no definitions. Even the question of Mr. Boozman about
groundwater, how do we interpret?
So have you laid out this is existing law, this is what it
would be under the new proposed bill?
Then my other half of that question, if we can get to it,
is how difficult for you has it been since the Supreme Court
decisions? Has it been completely impossible to determine how
you are supposed to regulate this and, at the same time, would
this bill make it clearer?
That is where we are all coming from. I think we all want
the same thing, and we want the same answer. We just want to
make sure that we lay it out properly, that we all know where
it is going.
Mr. Woodley. Congresswoman, certainly in preparation for
the hearing, the agencies did analysis basically sufficient for
us to express the areas in which we would like to, going
forward in particular, work with the Committee to seek a deeper
understanding of what the actual practical impact of some of
these provisions would be. So there is some of it. We have
conducted some analysis. I wouldn't describe it as exhaustive
or in depth.
Mrs. Drake. But it is an outline?
Mr. Woodley. We have begun, certainly, that effort and we
intend to continue working, as we all said in our testimony,
with the Committee and with the Chairman and all the Members to
craft as good a product as we can because we are the ones that
will end up with it in our in-boxes at the end of the day. The
one thing that a regulatory program needs more than any other
is clarity and certainty.
Then, in answer to your second question, I think that the
people of our wetlands regulatory program in the Corps have
responded magnificently to this challenge of having a very
interesting Supreme Court decision that had no majority opinion
and gave rise to very interesting questions. We worked with in
a very collegial way with EPA and throughout an interagency
process to provide our best understanding to the field of what
the Supreme Court was doing and what the decisions meant. I
think that our regulators are taking time to understand that.
The real fact on the ground is that our old rule that I was
talking about with the ordinary high water mark was fairly easy
to administer.
The new one requires more information, more understanding.
Some people would say that that is actually a good thing, but
you have to pay for it like all good things and that means
people have to do more analysis, more measurement, more going
out on the ground, more science to establish the significant
nexus that we require for jurisdiction.
Mrs. Drake. Are you able to share that comparison with us
so that we are able to understand what we are doing and what we
are putting on your plates? Is that possible for the agencies
to share that with us?
Mr. Woodley. Certainly, we will, Congresswoman, going
forward.
Mrs. Drake. Thank you.
Mr. Woodley. You can see, as far as sharing, in my written
testimony, it lays out the main points that we would like to
raise at this time.
Mr. Grumbles. I would just add that we feel that the
guidance that was issued in June has been a helpful and useful
tool so that we can continue to carry out the Clean Water Act.
We are making jurisdictional determinations. We have made over
18,000 since the guidance was issued. We are continuing to
carry out and enforce the Clean Water Act provisions.
It does add a complexity since the Supreme Court decision,
having to make significant nexus analysis. We feel the guidance
has helped us in that respect.
But we also know, based on the 63,000 comments we got
during the public comment period, that we have some additional
work to do, consideration. Whether it is revising the guidance
or reissuing it or suspending it and taking another approach,
we know that we are going to be doing some additional outreach
and technical assistance and training and workshops to help add
as much clarity and certainty to the current landscape we have
since the Supreme Court decision.
Mrs. Drake. Thank you very much.
Thank you, Mr. Chairman.
Mr. Oberstar. Mrs. Miller would like to be recognized for a
brief intercession.
Mrs. Miller. Just for one other, in full transparency, Mr.
Chairman, as well, I talked about the Rapanos case and the
companion case having emanated from the State of Michigan.
Actually, I got a report from CRS about the Rapanos case and
what it all means.
But the original case, Riverside Bayview Homes, that the
Supreme Court went into in 1985 is in my home township, and I
was a township supervisor about that time. That was the
original Supreme Court venture into how far the Army Corps of
Engineers has to go with their permitting process.
This was an individual who had a large tract of land,
obviously wetlands. It is next to a very large beach area
there. When we were building the Interstate 696, he started
pulling all of this fill dirt from the interstate and just
filling this place in.
The Corps of Engineers stopped this individual, Mr. George
Schorr, who is subsequently deceased now. He threatened a
Federal judge. They put him in jail. When he came out, it was
like One Flew Over the Cuckoo's Nest, this poor guy. But
anyway, at any rate, he was definitely filling in a wetlands
area.
I just mentioned that. So this was back in 1985. I really
have been following all of these issues. It feels like they all
come out of my particular region. So we have a lot of this
activity going on.
Mr. Oberstar. Are you saying we have you to thank for all
this litigation and the Supreme Court actions?
Mrs. Miller. I clearly remember being at the local level
when this particular development. He was putting in underground
all the water. The sewer, the fire hydrants were still back in
this wetlands area, and that was where he was getting all the
fill dirt.
But that was the first, I believe, that the Supreme Court
got into whether or not the Corps of Engineers, where your
jurisdiction emanated from for permitting. I just mention that.
Mr. Oberstar. We can't thoroughly blame you. That was Mr.
Bonior's district at the time. We will blame him.
Mr. Woodley. Mr. Chairman?
Mr. Oberstar. Mr. DeFazio.
Mr. Woodley. I think I should assure the Congresswoman that
we are operating a national program in every district in the
Country and not merely in hers.
Mr. Oberstar. Yes, we fully understand.
Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman.
Mr. Chairman, I don't think we can live with the
uncertainty of the Rapanos decision and some of the ill
intended effects that can grow from that. On the other hand, as
you know, I have expressed some concern, and you have indicated
here today some flexibility in terms of the wording of this
legislation. I am hopeful this hearing will lead us down that
path.
I, like Mrs. Miller, have been charged with implementing
both my State and Federal regulations in this area when I was
county commissioner and out looking at depressions in the
earth. In Oregon, those depressions fill with water a fair
amount of the time in the winter and then determining plant
structure and soil types and all sorts of things to determine
whether or not we were dealing with an ephemeral wetland or
just the Oregon landscape itself. That is what is of particular
concern to me with the bill as written here.
When we talk about all intrastate waters, then we talk
about activities affecting those waters, really the crux of
this bill is: What is a water?
Before Rapanos, we had to consider what water was within
Federal jurisdiction or, in my case, Federal or State because
we had protections in both areas. Now we have to consider what
is water and then I guess we would have to go through some
rulemaking. I certainly think we need some honing in on this
issue, and I think others from the Northwest might agree.
At what point does water running down any slope in the
western side of Oregon, Washington and northern California
constitute--I mean as raining is running off, which it is today
since we are having an abnormally late, cold, wet winter--does
that constitute water that would be regulated by the Federal
Government when activities affect it: timber harvesting,
Christmas tree harvesting, other activities, certainly
building, affect drainage from those areas?
I mean there is a whole host of issues that I think are out
there. I guess I would ask these particular experts, do they
agree with that?
I have read through all the testimony, and I am getting
this through reading other testimony that will come later
because I am not a lawyer. I have been charged with trying to
implement this stuff, but I am not a expert on it.
Would you share? Do you think that is a fair
characterization of where this might take us? What is water?
Mr. Woodley. Yes, sir. Yes, sir, I do.
Mr. DeFazio. Then how would we deal with that issue, like
particularly in the instance I have talked about where we have
a slope in the State of Oregon today and for 180 or 200 days
this year there has been water running down that slope, but
that happens to be all of western Oregon, Washington and
northern California?
Would that become potentially regulated?
Mr. Woodley. Yes, sir, I would think that you would have
to. As I would read the statutes, it would appear to be
sufficiently broad to give you a very, very strong argument
that all of those rivulets that you describe would be
jurisdictional waters of the United States.
Mr. DeFazio. Okay. I have a bunch of them in my back yard.
Does anybody else agree with that or want to comment?
Mr. Grumbles. Congressman, I would just say that I think
the key is to be able to clarify what the terms are in the bill
and that it could, in its current form, it could be more than
simply restoring, probably is more than simply restoring
jurisdiction. It could be expanding jurisdiction in some
respects, and I think that is certainly the case by using the
activities phrase that you mentioned earlier.
The other dialogue we have been having in the hearing is
the need to also make clear that when you are referencing or
incorporating some of the existing exemptions in the
regulations, exemptions from Federal jurisdiction, but you
don't reference them, others are those others like prior
converted cropland exemption or waste treatment systems
exemption. Does that mean that those are now repealed or, in
some way adversely affected?
So the basic point, I think, from an EPA perspective is
that we would want to work with the Committee to clarify terms
and also understand what the provisions mean in the bill
because, in its current form, it could lead to more uncertainty
and a broadening of jurisdiction in some cases and certainly
that could lead to litigation as well.
Mr. DeFazio. Okay. Thank you.
Thank you, Mr. Chairman.
Mr. Oberstar. Mr. Westmoreland.
Mr. Westmoreland. Thank you, Mr. Chairman. Thank you for
yielding.
Just to kind of follow up on that, so it is the belief of
at least, I think, three of the panel members--I don't know
about Mr. Lancaster--that this would broaden the scope of the
Clean Water Act?
Mr. Lancaster. Let me just clarify on our position. We are
not the regulatory agency. The authorities for our program are
not affected, but we work with the producers.
Certainly when you are looking at the regulatory agencies
and if there is uncertainty among those agencies of what the
legislation intends and how they would enforce it, our workload
may be affected. But in terms of what we do as an agency, how
we work with producers, how we enforce our small bit of
regulatory authority, which is conservation compliance, it is
not affected by the Clean Water Act. So my silence is really
just a reflection of what our agency's role in regard to the
Clean Water Act.
Mr. Westmoreland. Mr. Woodley, I know there for a while you
all had a very big backlog of 404 permits and people trying to
get those. Is that backlog down now and do you think that this
bill, as it is written today, would put more of a burden on
what the Corps actually does and actually lengthen some of the
time of this permitting process?
Mr. Woodley. I believe that we have, to some degree,
reduced our backlog although it remains unacceptably high. Part
of that is one of the reasons that we have increased our budget
for this activity in every year that I have presented a budget
until the one just presented for 2009 in which we kept it level
for 2008 to 2009 in spite of the fact that our budget overall
for the Corps of Engineers Civil Works was reduced.
My answer is that I don't have a detailed work analysis for
how this would go. The current is true, that you would have to
recognize that the Supreme Court decision also calls for a
great deal of analytical work to be done.
So if that analytical work was less than had to be done
under this, then the fact that this might potentially increase
the geographical scope might wash out. If the geographical
scope of our jurisdiction led to more permits but each permit
required less work, we might not have a regulatory burden, but
I think we would want to understand that.
In any case, I believe that this program will continue to
need substantial increases in resources devoted to it just in
order to make as efficient as it can be.
Mr. Westmoreland. Should I take that as a maybe?
Mr. Woodley. Yes, sir.
Mr. Westmoreland. Okay. I didn't know if it was a yes or a
no but a maybe.
Mr. Woodley. A strong maybe.
Mr. Westmoreland. Okay.
Mr. Grumbles, what is the EPA's opinion of this as far as
how you and Mr. Woodley have worked together, the Corps and the
EPA have worked together as far as coming up with regulations
that you have put into effect since the two Supreme Court
rulings?
It seems to me like those have been pretty effective and
really have kind of streamlined somewhat of what the system
really had been before those two Supreme Court decisions came
down. I look at it as at least getting you two together to work
and to come up with something that you could both agree with.
In light of your testimony that these wetlands are actually
increasing every year, it doesn't seem like the Supreme Court
decision had a negative impact on what is really happening to
our wetlands and, if it has done anything else, improved the
404 process. Am I right or wrong?
Mr. Grumbles. On the first point, I think there is no doubt
that we have increased coordination efforts because we wanted
to and also because we needed to with the uncertainties from
the Supreme Court. And so, we need to continue to work on that
and improve that because the regulated community as well as the
environmental community heed to have as seamless as possible a
coordination between the two agencies.
EPA's role is not as the primary permitting agency but
laying out the guidelines, the procedures and also making the
ultimate call on geographic jurisdiction or exemption
questions, but we feel like we have made good progress and we
work together closely and identify policy issues and elevate
those to headquarters as needed.
On the other question or comment, I think there are two
aspects to look at. One, the President's new goal for the
Nation that he announced on Earth Day 2004 was, aside from the
regulatory programs and the no net loss goal that is part of
our regulatory programs, he wants to see an overall gain in
wetlands using voluntary stewardship programs and that coupled
with the regulatory program under the Clean Water Act or other
regulatory provisions is the way to go.
There is no doubt in my mind and from an EPA perspective
that the Supreme Court decisions have caused concern in part
because of the uncertainties for the regulated community and
for us on carrying out the Clean Water Act. We think we are
doing as good a job as we can. We need to review or revise or
make appropriate changes to the guidance we issued in the
regulated community.
But while we do that we think it is very important to use,
with the Farm Bill tools that they have, the other programs,
Interior programs and work closely with the States to increase
their capacity for State wetlands programs. We think that will
help us all focus on not just the regulatory legal issues after
the Supreme Court decision but on reaching the greater goal
which is an overall gain in wetlands, and we feel that we are
making progress on that respect.
Mr. Westmoreland. Mr. Chairman, if I could just ask Mr.
Cruden, a yes, no or maybe?
Mr. Oberstar. A very brief answer.
Mr. Westmoreland. That is right, a very brief answer, a
very simple question. Do you think taking the word, navigable,
out will cause more litigation?
Mr. Cruden. I don't think it will reduce litigation.
Mr. Westmoreland. Thank you.
Mr. Oberstar. Mr. Baird.
Mr. Baird. I thank the Chairman for holding this hearing,
and I thank our witnesses for most informative testimony.
Mr. Woodley--bluntly, to all of the witnesses--one of the
things I hear back home a lot is the time it takes to get a
permit, and it is difficult. You have difficult decisions to
make, often technical questions to be answered, but also some
personnel issues and logistical issues.
Whether or not this bill were to become law, that issue of
permitting time and speed and efficiency needs to be addressed.
I wonder if you might comment a little bit about what more can
be done in that regard and then also if you would add to that
how this bill would possibly impact or the lack of this bill
would impact that.
Mr. Woodley. Yes, sir. We are working on two fronts to
continue to improve our processing time equation. We have
established nationwide standards for processing of all types of
Corps permits and, where they are not met, then we are applying
these management tools to this issue.
The first is the one I mentioned. That was that we have,
and the Congress has strongly supported our efforts, increased
the resourcing for the regulatory program. We suffered a
setback in that regard during fiscal year 2007 in which time we
were operating under a yearlong continuing resolution. Our
funding was frozen at the 2006 level.
The passage of the fiscal year of 2008 bill in, I believe
it was, January of this year has finally freed up the increased
revenues or increased resources to make a real difference in
the districts.
Wherever I go, the district commanders and the regulatory
chiefs are telling me that they are beginning to see those
resources. They have recruitment on the streets. So if anyone
knows a bright and talented young biologist or life science
person or someone who is interested in regulatory, this is a
great time to join the Corps of Engineers.
The other part that we are working on is business process
transformation, using the principles of the lean system that
traces back to the Toyota manufacturing for quality and to
remove as much of the time as we possibly can, and get
everything put together as quickly as possible and improve our
business processes. We mapped our business processes for the
regulatory program, and it was not a pretty sight.
So we have gone into that process and created the teams
necessary to eliminate redundancies and really squeeze the non-
value added time out of that, hopefully, by moving the
resources because we have no intention of solving any problem
just by throwing money at it. We are moving the resources up,
bringing the inefficiencies down. We really hope we will see
substantial increases.
This legislation, I don't give you any details on what it
how it would be, but other than the fact that any increase in
uncertainty or things that people have to relearn is a setback.
I could tell you that.
Mr. Baird. I appreciate it. I get that.
Mr. Woodley. We will make this work. If this is passed by
Congress, I assure you the Corps of Engineers will move heaven
and earth to make it work.
Mr. Baird. Great. I appreciate that.
Mr. Grumbles, I only one minute left. You seemed ambiguous
about the issue to which aquifers are protected and who has
regulatory authority over the protection of aquifers. Do you
want to chat about that a little bit?
Mr. Grumbles. Thirty seconds worth, I would say the Clean
Water Act understands that groundwater is important to surface
water and to the whole ecosystem, but it doesn't provide
regulatory authority to the Federal Government for activities,
discharges into aquifers or groundwater.
Mr. Baird. Even if an aquifer connects directly to a
waterway, even though you can trace it?
Mr. Grumbles. Well, no. Then that is where the interesting
legal aspects get into it. If there is a close, a very close
hydrologic connection, then in some cases the courts have found
that that is sufficient enough of a connection. But, generally,
the general rule is that aquifers are not regulated under the
Clean Water Act. Groundwater isn't.
The point is the question came up about the legislation,
the bill in its current form. I think it is a fair question to
ask and it can be answered by the Committee, what is the intent
of the bill? Would it be changing that general rule in some
way?
Mr. Baird. It is an intriguing thing that the source of the
drinking water for the majority of Americans is not protected
under the Clean Water Act. I will leave that for another
hearing at some point.
Mr. Grumbles. Well, it is in the sense of not in a
regulatory sense. In terms of planning and financial assistance
and working with States to use their authorities, there is a
recognition that it is a holistic watershed approach. But in
terms of 402 or 404, the regulatory aspects, it is really not.
Mr. Baird. Thank you very much.
Mr. Oberstar. You are saying there is a connection, though,
with groundwater or with aquifers and where that connection can
be demonstrated, the regulatory process has covered.
Mr. Grumbles. Yes, that is true.
Mr. Oberstar. Under current law.
Mr. Grumbles. Under current law and the definition. I mean
there is a difference between groundwater and aquifers.
As John Paul Woodley would say better than anyone, you go
down certain inches into the soil, water, moisture under the
surface is part of the definition of a wetland which would be
regulated under the Clean Water Act, using our current
regulations.
Aquifers, the general rule has been discharges into
groundwater aquifers is that it is not, but it gets into some
case by case determinations in some situations where a
discharge into groundwater is so closely connected to a water
of the United States, that some courts have found that that is
enough to have Federal jurisdiction.
Mr. Oberstar. Mr. Larsen.
Mr. Larsen. Thank you, Mr. Chairman. Really, Mr. Chairman,
thanks for holding this hearing. I know many of us had asked
for an additional hearing to hear from additional people. I,
for one, appreciate it and a little while later, maybe around
midnight, you will be hearing from Skagit County Commissioner
Don Munks who is on panel three. I appreciate the chance to be
here.
A lot of the discussion between now and actually previous
has been people for or against H.R. 2421. Just listening to
this testimony, it sounds like it is really more of a matter of
are you sort of navigable waters plus or are you waters of the
United States minus. Maybe if we look at that rubric, we might
have a better chance of coming to a conclusion on legislation
to address the problem that the Chairman and many others are
trying to address.
For Mr. Woodley, I would be interested. Can you briefly
describe the difficulty in applying two standards as your
guidance seems to propose, the plurality standard and the
Kennedy standard?
Mr. Woodley. Yes, sir. I don't believe we have had a
significant difference in doing that because in almost every
case, if it meets the plurality standard, it will also meet the
Kennedy standard. There is a theoretical possibility of meeting
the plurality standard without meeting the Kennedy standard,
although I don't believe I have ever seen that in the real
world.
Mr. Larsen. Also, Mr. Woodley, if the legislation proposed
was signed into law--and for you, Mr. Grumbles, too--would the
Corps and EPA have to promulgate new regulations or could you
simply apply the 2007 guidance document?
Mr. Woodley. I believe we would be called upon to issue new
regulations to properly implement the new legislation.
Mr. Larsen. Mr. Grumbles?
Mr. Grumbles. You said the bill in its current form?
Mr. Larsen. In its current form.
Mr. Grumbles. I think it would behoove both the agencies to
work to provide some greater clarity or certainty as to what
terms meant and how we were going to be interpreting those
terms and implementing them through regulations.
Mr. Larsen. Yes.
Mr. Cruden, on page 10 of your testimony, you discuss a
Seventh and a Ninth District Court decision, the Seventh
Circuit being the U.S. v. Gerke and the Ninth Circuit, Northern
California River Watch v. City of Healdsburg.
On the Ninth Circuit decision, in your testimony, you said
that the court initially stated that Kennedy's concurrence was
the controlling law, that the significant nexus test was
controlling, but that DOJ filed a motion asking the court to
clarify the statement by recognizing--this is from your
testimony--by recognizing that jurisdiction may also be
established under the plurality standard.
In that case the Ninth Circuit, at least initially, not
only applied the Kennedy standard but said the Kennedy standard
only applied?
Mr. Cruden. That is correct, before they amended their
opinion. Then, after we filed the brief, they amended their
opinion and added a few words to limit their decision to that
particular.
Mr. Larsen. The language here is for our case.
Mr. Cruden. Yes, and so we believe that gives us some
ability in the future in the Ninth Circuit to argue in a
specific factual setting that the plurality decision, if it was
applicable, could be used. That was not decided at all.
Mr. Larsen. Okay. I haven't been through your entire
testimony, but has there been a case since Rapanos where you
have filed an amicus brief for the opposite? That is a court
used the plurality standard solely and neglected to apply a
significant nexus?
Mr. Cruden. No. All of the courts that we have dealt with
so far have been using either the Kennedy test or both tests.
That has been where we are.
As I have mentioned in my testimony, we take the position
we could meet either test. As you know from reading it, the
First Circuit has agreed with us. The Eleventh Circuit recently
disagreed with us.
Mr. Larsen. Disagreed? The Eleventh Circuit disagreed with
you on applying?
Mr. Cruden. The Eleventh Circuit applied solely the Kennedy
test.
Mr. Larsen. So the Eleventh Circuit applies solely.
In the Ninth Circuit, they agreed to say in this case,
Kennedy applies.
Mr. Cruden. That is correct.
Mr. Larsen. But, as a general rule, we are going to apply
both.
The Eleventh Circuit came to a conclusion that we are only
going to apply the Kennedy, thank you very much, Department of
Justice.
Mr. Cruden. That is correct. It was a case called Robison.
It was in a criminal context.
We strongly disagree with the decision. We filed en banc
very recently. The Eleventh Circuit denied our en banc
petition, but two judges dissented. That case is under review
right now.
Mr. Larsen. Where is the Eleventh?
Mr. Cruden. Atlanta.
Mr. Larsen. Atlanta, okay.
If I just might, Mr. Chairman.
Mr. Oberstar. Very briefly. We are about to have votes, and
there are other Members.
Mr. Larsen. Then that is fine, Mr. Chairman. I appreciate
it very much. Thank you.
Mr. Oberstar. Mr. Petri.
Mr. Petri. Thank you very much, Mr. Chairman. I appreciate
your scheduling this very important hearing and introducing
legislation that raises the issue.
I would just like to state that I hope that as we move
forward in considering that legislation you are open to, on the
basis of testimony and other discussion, refine it. As you
know, there has been considerable pushback to either the
perceived or actual breadth of the legislation and some
uncertainty as to how it would actually be interpreted as far
as some respects of the bill are concerned.
I think the intent is to try to help clarify things and to
restore disputes that have come up or differences, resolve
differences of interpretation in different parts of the Country
and different courts.
Mr. Oberstar. If the gentleman would yield, I was very
explicit in my opening remarks about open to change, open to
adaptation.
The purpose of this hearing is to get a range of views on
the implications of the bill as introduced. I explored with the
present panel various adaptions of the existing language in the
bill, and I will be happy to discuss the matter with the
gentleman further.
Mr. Petri. Thank you, because I do know that before the
Supreme Court decision, we had considerable legislative
business having to do with Corps of Engineers perceived or
actual jurisdiction down to small subdivisions and other
developments, and it really was not what you would call an
elegant administrative situation. They just did not have the
administrative capability to deal with a lot of the smaller
issues, and the result was considerable frustration and
confusion among our constituents.
So I am hoping that if we do address this, that we do it in
a way that reduces confusion rather than recreates it.
I would just ask Mr. Ben Grumbles, who has always sat there
but has sat on both sides of the legislative divide, being a
hard-working staff member on this Committee and now being in
the executive branch, if you have any advice as to how we might
improve the legislation that is currently before us.
Mr. Grumbles. Thank you, Congressman.
As I mentioned a little bit earlier before you came in the
hearing room, we stand ready to work with the Committee as does
the Corps, I know.
There are some key terms in the bill or questions that have
arisen. One is the reference to activities triggering a need
for a permit. The other is clarifying whether or not certain
exemptions that may not be stated in the statute but are in the
regulations, whether they would be affected in some way by the
bill in its current form.
Then we also think it is important to look at some of the
other aspects of the bill: the Federal-State relationship and
potential unintended consequences. And, then the key one is
having further discussion about the advisability or not of
deleting that phrase, navigable waters.
So those are some of the areas that EPA and the Army Corps
look forward to having further discussions with the Committee
on.
Mr. Oberstar. Mr. Salazar.
Mr. Salazar. Thank you, Mr. Chairman. I appreciate, first
of all, your willingness to listen to us and your willingness
to have this hearing.
I think I am the only farmer left in the whole Committee.
So my question is for Mr. Lancaster.
As you know, there has been widespread support for the
wetlands reserve program and the EQIP and WRP programs which
have apparently netted a net gain in wetlands throughout the
United States. I guess I would ask you in light of what is
currently before us, this current legislation, do you believe
it would have a negative impact on the net gain of wetlands and
how much of that net gain?
I think that Mr. Grumbles talked about the 44,000 acres, if
I am correct. Was it you? Forty-four thousand? How much of that
is actually agricultural land?
Mr. Lancaster. For agriculture, the number is 44,000 acres
a year. I believe that the total number is?
Mr. Grumbles. Thirty-two thousand through the National
Wetlands Inventory that the Department of the Interior Fish and
Wildlife Service issues.
Mr. Salazar. Okay. What I would like you to focus on, as we
have been focusing on all the negatives on the current
legislation, I would like for you to make a positive
recommendation as to how we make this better as the Chairman
has clearly stated that he is willing to work with all of us to
make this a better place for all Americans.
Mr. Lancaster. Again, I will confine myself to our
programs. Our programs are voluntary incentive-based programs.
Landowners choose of their own volition that they would like to
enroll lands in the Wetlands Reserve Program for 30 years or
permanently, and those are decisions where they need to take
into consideration what activities will they be able to
continue to use those lands for, what liability are they
incurring as we make these decisions.
Likewise with the Environmental Quality Incentive Program,
our cost share program. Landowners are making a significant
investment. As you know, in agriculture, it is difficult to
make small changes to your operation. There are significant
costs associated with those changes.
So the question really is what certainty does a producer
have in their decisionmaking? If I agree to enroll my land
permanently in the Wetlands Reserve Program, to give up my
right to use that land for anything other than quiet enjoyment
and whatever compatible use I might negotiate with the agency,
what risk do I face with regard to the Clean Water Act in any
definition of activity and what those activities might be?
So it is difficult for me to answer from an NRCS
perspective because how we work will not change. Who we work
with, and when we work with them may change based on the scope
of how this legislation might be implemented.
My suggestion again would be to be clear in the intent,
clear in the legislative language, clear with the regulatory
agencies so that producers have some certainty. If I am going
to enroll my land--and many producers, as you know, are land
rich but cash poor--if I am going to enroll my retirement
program and my children's retirement program in a permanent
wetland, what uses will I have, what liability will I be
subjected to?
My advice again on this is to work closely with the
regulatory agencies to make clear the intent of the legislation
so that the regulations that come out can be as clear as
possible, so that certainty can be provided for those
landowners who are, to date, taking great strides in enrolling
their lands in these programs. Demand for our program far
exceeds available funding. Producers are doing the right thing.
They want to do the right thing.
The question for me from them really is what certainty do
we have that we will not be penalized in the future for these
actions?
Mr. Salazar. Thank you, Mr. Chairman.
I will yield back so that the other two Members can ask
questions before we vote.
Mr. Oberstar. I thank the gentleman and very much
appreciate his participation and his substantive contributions
to our discussion on the pending bill.
Mr. Space.
Mr. Space. Thank you, Mr. Chairman. Again, thank you for
calling this hearing.
Mr. Oberstar. I should observe that there are 9 plus
minutes remaining on this vote and 426 have not yet voted.
Mr. Space. Thank you, and I will keep it brief.
Mr. Lancaster, I want to direct my question to you and
anyone else on the panel could feel free to contribute if you
feel it is appropriate.
You know I am hearing a lot from the farmers in my district
who are very concerned about the proposed language of 2421. I
think that there is a lot of hyperbole surrounding this. I mean
I am getting complaints from farmers who are worried that mud
puddles and bird baths will become subject to EPA and the Corps
of Engineers oversight. Clearly, there was some exaggeration.
I am trying to figure out a way to cut through the
hyperbole and make an accurate assessment of the kinds of
producers and activities, in particular with respect to farming
and agriculture, that might be subject to expanded jurisdiction
under the revised language that would not be subject to such
jurisdiction right now.
In your testimony, you indicate that that is the case. I
would be curious as to know whether you have any specific
activities or producers that would be affected.
Mr. Lancaster. Congressman, again, the question for us as
we work with producers is the uncertainty. The legislation, as
introduced, I believe it has both deleted the term
``navigable'' and changed the term ``discharges'' to
``activities.''
Both of those result in questions: What activities would
now be subject to this? What activities would enjoy the savings
clause? Which activities would require permits? Which
activities, as the Corps and EPA might promulgate regulations,
might be considered normal farming activities if activities
might change in any way?
So the question is not this is what the legislation will do
or won't do for us, but for the producers I have interacted
with, as we look at implementing our program, it is more a
question of uncertainty. What could it do?
I think that is the question that Assistant Administrator
Grumbles and Secretary Woodley have discussed, which is they
view this as an expansion which would then beg the question for
the producer, how am I affected by that expansion?
Right now, through USDA, we simply don't know. There could
be no effect on producers who are affected by the savings
clauses. The legislation may or may not include prior converted
cropland and how producers might be affected who have those
designations on their land. But the question really right now
is just the uncertainty.
I would have to defer to my colleagues who would be
implementing it.
Mr. Space. I guess it would depend on the interpretation by
the various administrative agencies as well as judicial
interpretation. We don't have time to go into that. I wish we
did.
But I would be curious to know if and, in fact, welcome any
member of the panel that might offer suggestions to provide
more clarity in the legislation to avoid those uncertainties,
minimize permit processing times, and perhaps even expand or
develop the savings clause or exemptions to help bring clarity
and brevity to the process.
Again, I thank you, Mr. Chairman, for this opportunity. I
yield back.
Mr. Oberstar. I thank the gentleman.
Ms. Hirono.
Ms. Hirono. Thank you very much.
I have a pretty basic question. There are all kinds of
fears being expressed about this legislation, and my colleague
next to me just expressed some from his constituents, and we
have all heard those.
My question is, though, since there is so much confusion
that was attendant to these two decisions which were supposed
to hopefully clarify the Clean Water Act but they did not, and
then the guidance, those having guidance based on these
confusing decisions. There are those who say, well, let's let
the guidance proceed, let's implement them, et cetera.
Don't you think that it makes sense for Congress to really
focus on being the voice that provides the clarification
because, after all, it is the language that Congress comes up
with that is going to be interpreted by the courts?
At this juncture, as we sit here with this bill and in the
environment of, well, Congress, you don't have to do anything
because it is too confusing, I don't want us to be in a
position where we are not moving forward on this bill in a
reasonable way with your help and with the help of others in
the community.
Mr. Grumbles, what are your views on this?
Mr. Grumbles. Congress has a hugely important role in this,
obviously, and you are correct as you ask the question.
EPA believes in working that the Corps, that it is a
sequencing process where it makes sense for the agencies who
are closest to the ground to develop guidance as we did, to
road test, to see how it is playing out which we have done and
continue to do. Then from there, we can make our decisions
about whether to revise the guidance or reissue it or suspend
it and take a different approach while we are working with
Congress on this issue.
So we don't have an official position yet on whether
legislation is needed at this time, but we certainly have an
official position of wanting to work with the Congressional
Committees, whether it is in oversight hearings to review what
is happening or to get views on proposed legislation.
Ms. Hirono. Well, the reason I ask the question in that way
is really your guidance is based on very confusing case law,
and so I don't see why we should proceed in that vein as
opposed to Congress saying, all right, we are going to provide
the statutory language that will clarify matters.
Thank you.
Mr. Oberstar. We now have four votes in progress, and three
minutes remaining which could take as much as forty minutes. So
we will remain. We will be in recess at least until 10 minutes
after the conclusion of the last vote.
The Committee stands in recess.
[Recess.]
Mr. Oberstar. The Committee will resume its sitting.
I appreciate the patience of all the witnesses, especially
those of the first panel who have been here a very long time,
unfortunately, the interruption of votes.
I have just one, perhaps one question or a series of
questions.
Mr. Grumbles, EPA testifies that waters of the United
States is an important factor but not the only factor in
determining whether an NPDES permit is needed for a particular
discharge. Then your testimony refers to Justice Scalia's
comment that his construct of the Act does not necessarily
affect enforcement of Section 402 related to point sources.
Now there is only one prohibition on a discharge of
pollutants in Section 301 and one definition of navigable
waters in Section 502. Is there a distinction to be made
between waters where it is unlawful to discharge a pollutant
without complying with 402 and the waters where it is unlawful
to discharge without complying with Section 404?
Mr. Grumbles. Well, Mr. Chairman, I think what I am
attempting to convey is that it is true; we all agree that
there is one definition, one waters of the U.S. in the Clean
Water Act, and that applies to 402 and 311 and 303 as well as
404.
The point we are trying to make is the point that Justice
Scalia made, and that is in 402, it doesn't have to be a direct
discharge into waters. It could be an indirect discharge into
waters. So that is why he was describing, as I recall, in his
portion of the case, that the standard or test he is laying out
in the 404 construct may not affect aspects of enforcement
under 402 because there could be a 402 discharge further
upstream that doesn't directly get into waters of the U.S. but
indirectly gets into waters of the U.S., and that is our view
as well.
We recognize in one of the important aspects of this whole
challenge for us in implementation of the Rapanos guidance and
considering additional guidance under other sections of the Act
is working closely with our State partners to see what their
experiences are, if there are in fact impacts on non-404
programs.
Mr. Oberstar. Yes, very good. You did a good job of
threading your way through the complexities here, but if I were
a State regulator, if I were a contractor or a builder or an
advocate for an environmental organization, I would find it
very difficult to try to understand. Are we dealing with the
mind of Scalia? Are we dealing with the mind of Kennedy? Are we
dealing with neither?
We spent two years holding the hearings, crafting the
language, ten months in House-Senate conference, writing what
we thought was very clear, very specific. Then, 30 years later,
the Court is confused about its interpretation of the bill, and
now we are confused about what the Court means.
So I am trying to bring some clarity back to it. You have
helped with your explanations.
Further, you have the loosely described Kennedy test and
the Scalia test. Kennedy discussed traditional navigable
waters, and Scalia addresses continuously flowing or permanent
waters.
Mr. Cruden, is there a distinction or a difference or is
there a difference without a distinction?
Mr. Cruden. No. There is clearly a difference. As you
rightly point out, that is the opinion's wording, that there be
continuous flowing waters. Yet, there are footnotes in the
Scalia opinion that elaborate those words, where he makes it
clear that seasonal flow may well be included in his definition
of continuous flowing.
So when we are applying Rapanos_and I told you that our
position is we could meet the jurisdictional standard by either
one_we have to apply not only his text but his footnotes as
well. So that complicates our job of trying to explain to
courts what we think the correct standard is when we are trying
to establish and protect wetlands.
Mr. Oberstar. Secretary Woodley, do you concur in that view
about these two differing assessments by the two judges?
Mr. Woodley. Yes, sir. I think that almost any navigable
water is either subject to the ebb and flow of tide or
continuously flowing, but there are many continuously flowing
waters that we would not consider to be navigable.
But we certainly expect to take jurisdiction over all of
them if they are tributary, as they almost always are, to a
navigable water downstream.
Mr. Oberstar. If you take the Scalia theory or approach of
indirect discharges, which Mr. Cruden described just a moment
ago, do rivers and streams then become conveyances under the
Clean Water Act?
Mr. Cruden. There is a portion of the opinion by Justice
Scalia that suggests that as a plausible argument. We have not
had to make that argument because we have been able to
establish that the pollutant ultimately found its way into a
jurisdictional water.
But you are absolutely right, Mr. Chairman. That is one of
the things that Justice Scalia suggests might be an avenue to
distinguish a Section 402 action from a Section 404 action.
Mr. Oberstar. Well, we certainly could pursue that further
and try to understand who then is the permit holder, but I
think for the purposes of this panel and for the purposes of
revision of the introduced bill, I think we have an
understanding.
First of all, the Court did not describe the Clean Water
Act as unconstitutional, though in your analysis it leaves open
a question yet to be determined perhaps that could be raised by
someone else.
We need to further understand Mr. Grumbles' activities in
referenced in the language in the bill and its application to
or inclusion of certain specific provisions in current EPA-
Corps regulations.
Third, your understanding--yours, Mr. Grumbles, yours,
Secretary Woodley--of what would be the effect of and how
appropriately we could word leaving the term, navigable waters,
where it is exists now in the Clean Water Act, in the existing
statute, but referencing prior EPA-Corps regulations that are
prior to the Supreme Court, so we don't leave a lot of
misunderstandings. We want to continue prior existing
practices, how we could do that.
Then, fourth, your assessment or guidance on language to
include prior converted cropland, which is not included in any
reference in the Clean Water Act but has come up in
regulations, and how we could include that term with clarity
and with reference to regulatory practice in a revised bill.
Correct?
And, we can count on your combined legislative counsel, not
as a statement of Administration position but as a response to
the clarifying questions.
Mr. Woodley. Yes, sir.
Mr. Oberstar. Thank you.
Mr. Hall.
Mr. Hall. Thank you, Mr. Chairman, and thank you to our
witnesses for your patience among other witnesses and your
expertise.
I have a strong farming presence in my district, and
concerns have been expressed to me about reaction to the
Supreme Court rulings and the future of clean water regulation
under the CWRA.
It is my understanding that the savings clause contained in
the bill would ensure that agricultural activities will be
treated exactly as they were before the Supreme Court's ruling.
I would ask you, is that your understanding?
This will be for everybody. Using my friend, Mr. Boozman's
term, the plural of y'all, having spent some time in Nashville,
all y'all being asked this question.
Is it your understanding that the treatment of agricultural
activities will be the same as before the ruling, would any
retroactive permits be necessary for previously unregulated
activities, and could you comment on your view of the impact of
this legislation on the regulation of activities like the
maintenance of diversion ditches, grass waterways, temporary
wet spots and existing NRCS conservation programs?
Mr. Cruden, you would like to start?
Mr. Cruden. I am probably not the right one to address the
various issues associated with the current legislation. So I
will actually pass that to Mr. Grumbles.
Mr. Grumbles. I will, with Arlen Lancaster and John Paul,
if he wants.
We have had a lot of discussion in the hearing about
potential impacts on agricultural activities particularly with
the bill in its current form.
I think the prior converted cropland exemption is one of
the key issues that the bill may raise. It is not addressed in
the bill. What I have heard the Chairman say is that they want
to work with us further to recognize that there is an existing
regulation that does exempt prior converted cropland from 404.
By not mentioning it in the bill, it raises a question of
whether or not it would be overtaken, overturned by the bill,
superseded.
The other key one, Congressman, is the use of the word,
activities, rather than the more specific term, discharge of
pollutant or dredge or fill material. By saying it is
activities affecting waters that trigger the need for a permit,
that could bring in certain agricultural activities that hadn't
previously.
Mr. Hall. Practices.
Mr. Grumbles. Practices that had not previously been.
Now, in the saving clause, there are references to 404(f)
and the exemptions for silvicultural and agricultural normal
farming which are intended to preserve those actions. So I
think from an EPA standpoint, in looking at the jurisdictional
scope of the bill and potential impacts, I think we still have
some question and we would need to work on clarifying that.
Then you raise the issue of retroactivity, and I think that
is a good question to raise for further discussion in the
Committee. EPA, with our colleagues, stand ready, willing and
able to work with the Committee to try to clarify or address
those concerns about agricultural activities that might be
pulled in or, in some way, adversely affected by the bill in
its current form.
Mr. Hall. Allow me, unless you are dying to add to that,
since I only have a little bit of time left, to ask Secretary
Woodley, which specific categories of water bodies would H.R.
2421 encompass that had never been regulated before under the
Clean Water Act and where specifically do you see those
categories identified?
Mr. Woodley. I think that the most obvious examples of
that, Congressman, are the playa lakes and prairie potholes
which are extremely interesting and very significant wetland or
aquatic resources and which have a great value as wetlands
habitat and for other purposes.
But their characteristic is that they are unconnected to
other water bodies by surface flow. They are connected to each
other and to other water bodies by groundwater flow typically.
And so, in times of drought, they will go way down and then
they will pop back up as the groundwater. But they never
typically fill up to such a degree that they overflow and form
a channel that then can be linked downstream to a navigable
water course.
That is more an issue related to the jurisdiction
determination in the SWANCC case than it is related to the more
recent Rapanos and Carabell cases.
Mr. Hall. Thank you, Mr. Woodley.
My time is expired but, Mr. Chairman, I just wanted to
comment that we have in my district a number of superfund
sites, and some of them happen to be either on or adjacent to
wetlands. So we are very concerned about this Solomonic
decision that we are trying to make about exactly how you
define where the protection extends to because, sooner or
later, it all winds up downstream.
I yield back. Thank you.
Mr. Oberstar. I thank the gentleman.
The gentleman from Tennessee, Mr. Duncan, former Chair of
the Water Resources Subcommittee.
Mr. Duncan. Thank you very much, Mr. Chairman.
I am not going to ask any questions, but I would like to
make a few comments. First of all, I know we need to get on to
the other panels, but the Congress has done great things in
regard to the environment over the last 40 or 45 years.
Chairman Oberstar has been a leader on most of those pieces of
environmental legislation because most of them have come in
whole or in part through this Committee, and I think we should
be very proud of that.
Mr. Grumbles said a few minutes ago or earlier today that
in some of his recent work over the last few months in regard
to the SWANCC and Rapanos decisions, that some of the regulated
community thought he had gone too far and some of the
environmental community didn't think he was going far enough. I
don't know anybody on either side who has worked with Mr.
Grumbles, who doesn't have great respect for his knowledge in
this area.
I am sure that on some of those earlier pieces of
environmental legislation, probably it was the same way, that
the environmental community thought they had never gone far
enough, and maybe some of the regulated community thought they
were going too far.
It is true, I think, that this Country has done more in
regard to the environment than any other country in the world
really and has gone further, and we have cleaner water. I know
I have traveled all over Europe and other parts of the world,
and we certainly have cleaner water than any country I have
ever been into.
But can you do more? Can you do better? Sure, you can
always try and do more and do better, and you should always try
to do that.
On the other hand, we have to try to strike a balance at
some point because some of the environmental laws in the past
have really hurt the smallest companies or the little guys in
any industry. I remember a few years ago, when I chaired the
Water Resources Subcommittee, we had a hearing in regard to
wetlands, and we had some very small farmers in here who broke
down and cried because the effect of some of the rulings on
them and their livelihood.
I can tell you that one of my grandfathers was a
subsistence farmer in Tennessee. He had 10 children and an
outhouse and not much more. So I can tell you my biases and my
sympathies are with the little guys, and I have been told that
this legislation could have a very harmful effect on some of
the smallest farmers and some of the smallest operators in this
area.
So I think what we need to try to do is reach some type of
balance to make sure that we are not just helping the big
giants that are affected by all of this.
I read part of the Rapanos decision in which the judge in
that case said: ``I don't know if it is just a coincidence that
I just sentenced Mr. Gonzalez, a person selling dope on the
streets of the United States. He is an illegal person here. He
is not an American citizen. He has a prior criminal record.
So, here, we have a person who comes to the United States
and commits crimes of selling dope, and the government asks me
to put him in prison for 10 months; and then we have an
American citizen who buys land, pays for it with his own money,
and he moves some sand from one end to the other, and the
government wants me to give him 63 months in prison.''
The judge said, ``Now if that isn't our system gone crazy,
I don't know what it is, and I am not going to do it.''
Then a few months ago, the Knoxville New Sentinel had a
front page story in which they said: ``Each month's KUB bill
forces Annie Moore to make some tough choices. The 68 year old
great grandmother lives on a fixed income from disability
payments. She recently received a final notice for the $483.96
she owes KUB for utilities at her East Knoxville home.''
Then it says, ``After seeing their sewer bills more than
double in the past two years, Moore and other customers are
wondering why KUB is proposing water and natural gas rate
increases. It is making me live like I never lived before,
Moore said. So she eats simple foods, buys only the most
important of her medications, goes without luxuries like
coffee.'' She considers coffee a luxury and so forth.
I guess what I am getting at in a roundabout, inarticulate
way is that I think whatever we come up we need to keep people
like Annie Moore in mind, and we need to keep the subsistence
farmers in mind because I have noticed over the years that all
the environmentalists seem to come from very wealthy or very
upper income families, and that is good for them.
But we need to keep the little guys in mind and not just do
some legislation that is only going to help the big giants and,
hopefully, we can reach some middle ground approach where we
can do that.
Thank you, Mr. Chairman.
Mr. Oberstar. I thank the gentleman for those very thought
provoking comments and for his own personal experience. It is
always defining for all of us.
I have no further questions.
Mr. Boozman?
No further questions from the gentlewoman from Virginia?
So we will hold this panel in appreciation and dismissed
for the afternoon. Thank you very much for your splendid
contributions.
Our second panel consists of Professor Mark Squillace,
Professor William Buzbee--Professor Squillace from the
University of Colorado School of Law and Buzbee from Emory Law
School in Atlanta--Professor Jonathan Adler of Case Western
Reserve University School of Law and Ms. Virginia Albrecht, a
Partner in Hunton and Williams in Washington, D.C. on behalf of
the Waters Advocacy Coalition.
Oh, and I see that the House has entertained a motion that
the Committee rise. Well, that is a procedural motion.
We will begin with Professor Squillace.
TESTIMONY OF PROFESSOR MARK SQUILLACE, DIRECTOR, NATURAL
RESOURCES LAW CENTER, UNIVERSITY OF COLORADO SCHOOL OF LAW;
PROFESSOR WILLIAM W. BUZBEE, DIRECTOR, ENVIRONMENTAL AND
NATURAL RESOURCES LAW PROGRAM, EMORY LAW SCHOOL; PROFESSOR
JONATHAN H. ADLER, DIRECTOR, CENTER FOR BUSINESS LAW AND
REGULATION, CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW; AND
VIRGINIA S. ALBRECHT, PARTNER, HUNTON AND WILLIAMS, LLP ON
BEHALF OF THE WATERS ADVOCACY COALITION
Mr. Squillace. Thanks, Mr. Chairman and Members of the
Committee.
My name is Mark Squillace. I am Professor of Law at the
University of Colorado Law School and Director of the Natural
Resources Law Center there.
I am very happy to appear today before this Committee to
offer my support for the Clean Water Restoration Act of 2007. I
share the Chairman's view of this legislation, that it does
nothing more than restore Congress' intent when it adopted the
Federal Water Pollution Control Act of 1972.
I want to take a moment to just briefly address this issue
that has been coming up regarding navigability and whether we
should preserve this phrase, navigable waters, in the current
legislation. I think the heart, really, of the proposed
legislation is the removal of that phrase, and the reason is it
has always been a square peg trying to fit in this round hole
of the Clean Water Act.
The phrase, navigable waters, came from the old 1899 Rivers
and Harbors Act, particularly Section 13 of that law which was
known as the Refuse Act, and that statute used the phrase,
navigable waters. This is part of sort of the history of how we
got this phrase into the law.
But when Congress adopted the Clean Water Act in 1972, it
never intended that navigable waters should be the basis upon
which jurisdiction was limited. In fact, the statute makes
clear it was designed to protect the physical, biological and
chemical integrity of all of our Nation's waters. And so, the
idea that somehow we should be limited to navigable waters in a
traditional kind of sense, I think is just wrong.
One of the great ironies, I think, of what has happened as
a result of the Rapanos decision is that the Clean Water Act is
now arguably narrower in scope than the old Rivers and Harbors
Act itself because the Rivers and Harbors Act in Section 13
specifically adds the phrase, and their tributaries, to the
phrase, navigable waters. We, of course, don't have that in the
Clean Water Act.
I think it is unfortunate that there is this impression
that somehow we can keep the phrase, navigable waters, and
still accomplish the goals that Congress intended way back in
1972.
I want to get into some of the more particular issues
regarding the legislation and my concerns about the
legislation, and I think there is a lot of reason to be
concerned about protecting our clean waters.
We have talked a little bit about wetlands today. It is
true that we have made some strides, although we might argue
about how much we have improved our situation with wetlands,
but it is fair to say that we have lost more than half of our
wetlands since we settled this Country. Yet, the 5 percent of
the land base that now remains as wetlands is the sole home for
one-third or more of our endangered species and it comprises,
it includes more than 31 percent of our plant species
throughout the lower 48 of the United States.
We have also made good progress on our Nation's waterways
in the past 36 years, but there is a long way still to go.
Indeed, 40 percent of our waterways still fail to meet State-
established water quality standards for those waters.
So where do we go from here? How do we improve the current
situation?
Unfortunately, I think that the Supreme Court's recent
decisions in the two cases that have been much discussed today
have exacerbated the problems that already exist with
protecting our clean water. These decisions have forced
agencies into these complex ad hoc, site-specific judgments
about whether certain waters have a significant nexus with
traditional navigable waters.
It is my belief that the implication of this obligation
seriously compromises our government's ability to protect our
Nation's waters, and we can only fix this problem through
legislation.
We have already heard, at some length, two of the principal
objections that have been raised to this legislation. One is
the claim that the proposed legislation usurps State and local
authority. A second is that the proposed legislation expands
the scope of Federal authority far beyond what Congress
originally intended.
I would like to briefly address both of those issues and,
if time permits, to suggest a couple of places for improving
the law.
First, regarding the proper role of State and Federal
Governments, it is worth noting here we are dealing with water,
and we all recall from high school science class that water
exists in a unitary hydrologic cycle. Trying to draw lines
between that which should be regulated by the Federal
Government and that which should be regulated by the States and
local governments will necessarily be arbitrary, and it thus
should be no surprise to us that the Supreme Court's recent
decisions have led to a state of regulatory chaos.
The Corps is now issuing more than 100,000 time-consuming,
often complex and difficult jurisdictional determinations each
year. As we have already heard from Mr. Cruden, the number of
cases that the Justice Department is seeing, contesting these
jurisdictional determinations is increasing at a fairly high
rate.
Think of the resources we are spending, drawing lines that
might otherwise be spent protecting our Nation's waters.
Of course, if the Federal Government really lacked
jurisdiction or constitutional authority to engage in this
practice or if the States were clamoring to preempt Federal
authority in this area, perhaps this issue would have more
resonance. But Congress plainly does have constitutional
authority under the Commerce Clause and the Treaty Clause and
perhaps some other authorities, and the only clamoring I am
hearing from the States is their enthusiasm for broad Federal
regulation.
For me, one of the most telling facts about the Rapanos
decision was the fact that 34 States and the District of
Columbia signed an amicus brief supporting broad Federal
jurisdiction in that case. That hardly sounds like a situation
where the States are asking for more regulatory power.
The other concern that we have heard about is the fact that
the Clean Water Act does more than restore but really expands
the scope of the regulatory power under the law. I know that
the proposed legislation has raised some special concerns for
some of the people in the western States who believe that it
may interfere with the States' authority to regulate water
rights, and I would like a moment, if I can, to try to address
that issue.
Mr. Oberstar. I would like you to summarize it because we
are running short.
Mr. Squillace. Okay, I will try to do that.
The bottom line here is that the statute preserves in its
language, the Wallop Amendment protecting States' rights. It
preserves the specific exemptions from Section 404 for the
construction and maintenance of stock ponds and irrigation
ditches and for normal farming and ranching activities and,
under Section 2, for discharges comprised entirely of
agricultural return flows.
If I could make just one more point, Mr. Chairman, and it
concerns my State of Colorado and some of the issues that are
raised with regard to navigability there. We have talked a lot
about the problem of navigability here, and it is not well
known that there is a 1913 decision from the Colorado Supreme
Court that essentially finds that there are no navigable waters
in the State of Colorado.
That may sound surprising, but there is a 1979 case, not so
long ago, where the Supreme Court of Colorado held that the
Colorado River itself is not a navigable water, and I think it
won't be long before someone, at least, decides to challenge
the authority to even regulate under the Clean Water Act in the
State of Colorado.
Thank you very much, Mr. Chairman.
Mr. Oberstar. Thank you, Professor Squillace.
I see we have six minutes remaining on this vote. I think,
since there is only one vote, we should break at this point and
come back promptly, forthwith.
[Recess.]
Mr. Baird. [Presiding.] The Committee will reconvene.
We apologize for the interruption, and the situation is
that we expect another series of votes in a little bit. But so
that we can continue with the testimony, I know some of you
have flights to catch. We apologize for the duration of this
proceeding, and we are grateful for your indulgence.
I think we left off with Mr. Buzbee about to speak.
Mr. Buzbee, thank you. We look forward to your comments.
Mr. Buzbee. Thank you very much, Mr. Chairman and Members
of the Committee.
I am Bill Buzbee. I am a Professor of Law at Emory Law
School in Atlanta. There, I direct the Environmental and
Natural Resources Law Program.
I have been involved with issues concerning what are
protected waters of the United States for several years, first
representing a bipartisan group of EPA administrators before
the Supreme Court in Rapanos in an amicus brief, and I have
testified in two previous rounds of Senate hearings involving
this issue.
I am going to make three basic points. The first is that
the Restoration Act is necessary in light of weakening of the
Clean Water Act by the Supreme Court in SWANCC and Rapanos.
Mr. Chairman, my clock is not working, in any event.
Mr. Baird. Then your time is now up.
[Laughter.]
Mr. Buzbee. Thank you so much. I am glad I traveled here.
As I was saying, there are three main points I am making.
The first is that the Restoration Act is necessary in light of
weakening of the Clean Water Act by the Supreme Court in SWANCC
and Rapanos. The second is the Restoration Act is a sound,
limited, focused amendment restoring the reach of the law.
Then, third, I want to address some of the criticisms and
questions about the reach of the restoration act raised today
and in testimony submitted for today.
So, first, regarding the weakening of the Clean Water Act,
I would say the current situation is not acceptable. I think
every witness agrees the Clean Water Act has been a resounding
success, but that doesn't mean it can remain unchanged.
It has been substantially weakened by the Supreme Court.
The Supreme Court, in SWANCC and Rapanos, unsettled a
bipartisan, three decade, broadly protective view about what
counts as waters. Now the decisions and the responsive guidance
have undercut the Act in three ways:
It has undercut this broad, shared view about what counts
as waters and removed many waters from protection, especially
after the SWANCC case.
As the previous panel said, it has fostered a confusing
regulatory and jurisprudential mess with splintered judicial
approaches, regulatory interpretative uncertainty, delay,
regulatory inattention and inertia_a wonderful situation.
The cases substituted judicial views of policy that really
downplayed or ignored the Clean Water Act's integrity goals,
disregarded previous Supreme Court precedents and, especially
important, they eliminated longstanding deference given to
agencies in this area.
Very important, as the Chair said shortly before the break,
the weakening of the Clean Water Act here is not just about
Section 404 and wetlands as some people seem to imply in their
focus. The provision about what counts as waters of the United
States is the jurisdictional hook for the whole statute,
including the industrial pollution discharge permits and oil
spill provisions. Anyone looking at the reach of the statute
has to think about this repercussion of these cases.
So there are four options:
One is to do nothing. I don't think that is an option.
There are real harms happening. I was happy to hear a consensus
that there is a need to do something here today.
A second is just allow litigation to work it out. I don't
think that is going very well.
Another is to implore regulators to fix the mess. That
would be the third option. Because the Supreme Court's rulings
are direct Clean Water Act constructions, I think there is
greatly reduced latitude for a regulatory cure.
Then last is to pass a curative piece of legislation. So,
let me turn to that.
It is hard to imagine a more limited and focused corrective
piece of legislation. What it does is it takes a key
interpretative regulatory definition and makes it part of the
statute, and that is all it does. It is very focused.
It makes clear the statutory intent to reach water within
Federal constitutional powers. This is important because
concern about the intended reach of the statute has driven some
of the Supreme Court's limiting constructions.
It is also very important because it does not monkey with
other provisions. Its very focused aspect is part of the beauty
of it.
Then, lastly, in the findings, it has sound factual and
scientific findings that are clearly well based and important
to consider.
Today, there has been some confusion about this language of
activities which is in that key definitional clause. Let me
turn to that for a moment. The language of 404, Subsection 24,
lists off. It enumerates the sorts of waters that are protected
by name and then it says, ``to the fullest extent that these
waters or activities affecting these waters are subject to the
legislative power of Congress under the Constitution.''
What this provision does, this is kind of a jurisdictional
sweep-up provision that says these sorts of waters are
protected if they are within Federal constitutional power or
activities affecting them are. It is not separately creating a
category of activities that is subject to regulation.
Only if the enumerated waters are implicated are they
reached. Then you have to turn to the separated operative
provisions of the Clean Water Act, and only then if you have a
point source discharge under Section 301 and it doesn't fall
within the nationwide or other sources of flexibility does the
Federal Government have jurisdiction. So I think people have
misunderstood and looked at that word in isolation instead of
in context.
Second, as Professor Squillace said, leaving in this
``navigable waters'' language would completely undercut the
entire purpose of this bill. The Supreme Court has twice, in
very important and recent cases, fastened upon that word and
used that word in part to drive the limiting constructions of
the Act. If you leave that word in, I think this bill will
basically do little or nothing, and that would be a mistake.
Now, let me address a few criticisms in my few remaining
seconds. One, is this limitless Federal power, as several
people have said? The answer is no. It is all linked to these
enumerated waters. It is not unprecedented. The sorts of waters
protected have been in the regulations for three decades.
Second, does it reach every conceivable sort of colorable
waters such as ditches, drains and bird baths? The answer is
clearly not. They are not listed there. I looked very hard.
Okay.
Is groundwater reached? No. They are not among the
enumerated waters. The Clean Water Act can reach groundwater
through some other provisions as Mr. Grumbles stated in the
previous panel. I don't see these particular language choices
as upsetting that particular statutory balance.
Lastly, is this constitutional? Is the language about
legislating to the limit of constitutional power appropriate
or, in any way, itself a constitutional problem, as some
commentors suggested? On that front, I would say definitely
not. You all have to legislate against the background of what
the Supreme Court has done, and the Supreme Court has read the
statute not to reach to the limit of Federal constitutional
power. If you want to reach that far, you need to state so or
the Supreme Court and lower courts will find it to be
inadequate.
Then, lastly, there is this kind of theory that this law
would crowd out, and then I will stop--this is truly my last
point--would crowd out or undo the federalism balance in the
Act, and it does no such thing. All of the cooperative
federalism provisions remain in the Act. All of the savings
clauses remain in the Act. There is nothing in this law that
does more than take the regulatory provision regarding
protected waters and make it statutory.
Thank you.
Mr. Baird. Thank you, Professor Buzbee.
Professor Adler.
Mr. Adler. Thank you, Mr. Chairman and Members of this
Committee. It is certainly a pleasure to be here today, and I
appreciate the opportunity to present my views on the Clean
Water Restoration Act to this Committee.
My name is Jonathan Adler. I teach environmental,
administrative and constitutional law at Case Western Reserve
University. Case Western is in Cleveland.
Earlier this morning, it was mentioned that the Cuyahoga
River no longer burns and that this is a tribute to the Clean
Water Act. I should just note, being that I live in the
Cleveland area now, the Cuyahoga River is not the only
industrialized river in the United States that burned. In fact,
rivers in the United States used to burn quite a lot in the
late 19th and early 20th Century, and that problem was largely
dealt with and solved well before the Clean Water Act was
adopted. Being from Cleveland, I feel I just need to point that
out.
On the Clean Water Restoration Act, I just want to make
three brief points:
First, this bill asserts authority well beyond the
regulatory authority that was understood and applied under the
Clean Water Act originally.
Second, the bill will do nothing to reduce regulatory
uncertainty--uncertainty that, I should note, predates SWANCC
and Rapanos--and in fact, this bill may increase regulatory
uncertainty.
Third, this bill will do little, if anything, to improve
Federal environmental protection or encourage a meaningful
Federal-State partnership.
As written, the Clean Water Restoration Act would assert
authority over all bodies of water and wetlands irrespective of
any connection to navigable waters.
Some of my colleagues on this panel may think that the
definitions of ``all interstate and intrastate waters and their
tributaries'' and ``all impoundments of the foregoing'' are
self-evident and necessarily limited. I don't share that
confidence. Without a rulemaking by the agencies implementing
this language, it could certainly be interpreted quite
expansively by courts.
This would be the first time that a Federal statute would
assert authority without any reference to the Federal
Government's historic interest in navigability and interstate
waters, and I think that adoption of this law could provoke
conflict and backlash in this area not seen since the 1989
revisions to the Federal Wetland Delineation Manual, the action
that is often credited with sparking the rise of the property
rights movement.
The uncertainty in the scope of Federal jurisdiction over
waters and wetlands did not begin with SWANCC and Rapanos.
Specifically under Section 404, there has been uncertainty and
conflict in litigation since the Clean Water Act was enacted.
In fact, the Army Corps of Engineers and the EPA disagreed on
the scope of the Clean Water Act initially, and it took
litigation in Federal District Court to resolve that dispute.
There has been litigation and uncertainty ever since.
As I noted before, in the 1980s and 1990s, several
different agencies had varying and competing delineation
manuals as to what constituted a wetland. The General
Accounting Office issued several reports during that period,
noting that different agencies had different definitions of
what constituted a wetland. Even within the Corps of Engineers,
there could be differences about what would constitute a
wetland or what could be subject to Federal regulation.
In 1989, the Tabb Lakes decision invalidated the Migratory
Bird Rule and held it couldn't be used in the Fourth Circuit.
So, at least in the Fourth Circuit, the scope of Federal
jurisdiction that was determined in SWANCC had already been the
law because of that court's decision.
The claim that this legislation asserts jurisdiction to the
limits of constitutional authority doesn't provide certainty,
and it doesn't answer the question of the scope of Federal
authority. In fact, it asks the question because to say the
Federal Government is going to regulate to the limits of its
constitutional authority still leaves open the question of how
broad the Federal Government's constitutional authority is. The
Supreme Court hasn't answered that question.
What it has said in both the SWANCC and the Rapanos
decisions is that there is a limit to Federal regulatory
jurisdiction and that the Clean Water Act, if read more broadly
than the Court interpreted, could reach those limits and could
raise constitutional difficulties.
The Court was explicit about this in the SWANCC decision
and, in both the Scalia and Kennedy opinions in Rapanos, the
Court was explicit about this again: that to read the Clean
Water Act to reach beyond those waters that have a significant
nexus to navigable waterways is to raise difficult
constitutional questions. To pass a bill that reaches those
limits is to force agencies and courts to spend years figuring
out precisely what those limits are.
The problem of site-specific and case by case jurisdiction
determinations which the agencies now struggle with can be
addressed through rulemaking. In fact, we have known since the
Lopez decision in 1995 that the Corps of Engineers' and EPA's
regulations had federalism difficulties. Many commentators
noted that at the time. We have known that before the SWANCC
decision they had difficulties.
The agencies have refused to issue new rules and refused to
have new rulemakings that could resolve this. In the Rapanos
decision, three justices specifically called upon the agencies
to go through a rulemaking process so as to resolve this
ambiguity.
I should just lastly note that if the goal is to enhance
the protection of waters and wetlands, what the Federal
Government should be doing is not trying to cast as broad a net
as possible, to rope in and assert jurisdiction over all the
lands and waters it possibly can. Rather it should focus
limited agency resources on those areas that the Federal
Government, as the Federal Government, can do the most good.
The reality is the EPA and Corps of Engineers do not have
unlimited budgets. They do not have unlimited man hours. We
have a choice of either telling them they can regulate many
things without providing them with priorities, without giving
them a guide to where they should be focusing their resources,
or we can target their efforts and focus on those water
resources and those resources related to waters where the
Federal Government has a distinct interest that States and
local governments are not capable of addressing.
The question is not do States want to regulate more but
whether or not they would and are capable if the Federal
Government focused on those things where the Federal Government
has the greatest interest. I think that is the direction that
both the agencies and this Committee should look if it wants to
improve the quality of environmental protection under the Clean
Water Act.
Thank you.
Mr. Baird. Thank you, Professor Adler.
Ms. Albrecht.
Ms. Albrecht. Thank you for the opportunity to testify
today.
My name is Virginia Albrecht. I am a partner at Hunton and
Williams here in Washington and really have spent about the
last 25 years of my professional life thinking about the Clean
Water Act, getting permits all over the Country.
Today, I am here representing the Waters Advocacy Coalition
which is a very large group of public and private organizations
who have gotten together over the last 15 months in response to
H.R. 2421 and who have shared concerns, many of which have been
raised and I think quite well developed in the earlier phases
of this hearing. We are very glad to be here today and also to
hear the Chairman say that he is interested in hearing some
comments and options for this legislation.
I wanted to make four points today about the bill. The
first, of course, is that it doesn't merely restore the
previous Clean Water Act, but it does in fact expand, and I
think that has been very well developed earlier.
The one point I would like to make in addition is that the
use of the term, navigable waters, as Mr. Woodley pointed out
and I think the government was pointing out, was that use of
that term is really an expression by Congress that there are
some waters that are Federal and some waters that are State. It
is a recognition that we need to draw a line.
If you don't use the term, navigable waters, you are going
to have to have something else in the legislation that will
clearly be a base line for saying what is Federal and what
isn't Federal, unless the purpose of the legislation is to say
everything is Federal. We would think that that would be a big
problem if the Clean Water Act were changed to eliminate the
idea of any State waters. So that is one point.
The second point is, just to make it clear, it is not true
that the Clean Water Restoration Act is merely a repeat of the
existing regulations under the Clean Water Act. We have this
little side by side comparison up there, and you can see when
you look. Actually, I don't know if you can read that. It is a
little far away.
On the left side is H.R. 2421 and on the right side are the
Corps' and EPA's existing regulations, and there are some very,
very significant differences here. One is the indication of
trying to regulate all intrastate waters. The other is the
regulation of activities and, whatever that means, it is
ambiguous and it will invite litigation.
When litigation comes, the language of this statute will
matter. In a careful reading of the way this bill is written
right now, it says they are going to regulate all intrastate
waters. Courts will look at that and say, all means all, just
like daily meant daily for total maximum daily loads.
It will be very, very hard, in the face of a statute that
regulates all intrastate waters, for the agencies to create any
exemptions or for the courts to recognize something less than
every water.
As Professor Adler pointed out, that gives rise to the
question: What are the waters? What is a water body? All those
questions are out there.
Then three, thinking about returning, and I wanted to make
the point that we are talking about returning to a time when
jurisdiction was certain and the permitting program ran in a
smooth and functional way. As one who has been very actively
involved in this permitting program really since the early
eighties, I can tell you for sure that there never really has
been a time when it was clear and concise.
In 1993, working with another colleague who had actually
recently retired from the Corps of Engineers, I did a year-long
FOIA study of all 38 Corps districts and how long it took to
get through the permit process. In 1993, which is 15 years ago,
it took about a year for the average permit to get through the
process. We also found in 1993 that half the permits
applications that were submitted were withdrawn before a
decision was made.
I think that is still happening today, but the point is
that in 1993, that period of time in which we did the study,
what we found was a permitting process that was already broken.
So there isn't a pre-SWANCC nirvana to return to is the basic
point.
If what is happening now is that there is some concern
about some features not being regulated, I think the point
would be to identify the features that are of concern and then
think about what protections are out there and what could be
done for those features. But we haven't really understood that
so far, and so it has been kind of difficult to come to grips
with that.
We are very glad to be here today, and we would be happy to
take questions.
Mr. Baird. I thank our witnesses.
The situation is we are now about six minutes from a vote,
so we will have to go to that. There are two votes, I
understand, following this. We would expect, hopefully, to be
back in about 20 minutes at the earliest, more likely 25
minutes, I would guess.
Those on the panel might not want to run away too far, but
the rest of you can probably count on we probably won't likely
reconvene sooner than 20 to 25 minutes.
It is my understand that the Chair, Chairman Oberstar,
intends to convene the third paneling after questioning of this
panel. The questioning of this panel could easily take a half
hour or so, I would wager.
So we appreciate your indulgence, as those of you who are
trying to plan flights. For what it is worth, we go through
this every week ourselves. It is no consolation to you, but we
will be back in about, hopefully, 15 to 25 minutes, somewhere
in there.
[Recess.]
Mr. Oberstar. [Presiding.] The Committee will resume its
sitting, with apologies again to witnesses and participants for
the repeated interventions on the House Floor, but that is part
of the legislative process, and with great appreciation to Mr.
Larsen and Mrs. Drake for sitting in while the last votes were
underway and I was caught up with other things.
Oh, and Mr. Baird also was here. So I greatly appreciate
it.
I would like to ask this panel a question I asked the
previous panel. What would be the legal implications of leaving
the word ``navigable'' associated with waters, in the various
places it appears in the body of the existing Clean Water Act
but attaching to it, fixing to it reference to pre-SWANCC and
Rapanos practice, that is, the administrative regulations
issued?
Mr. Squillace. I will try that one, Mr. Chairman.
My sense is that if you leave the phrase, navigable waters,
in the statute, that it is an invitation for additional
litigation over the issues.
Justice Kennedy's concurring opinion in particular in the
Rapanos case, I think suggests that he is not willing to read
out the word, navigable, from the statute. If you use the word,
navigable, or you use the phrase, navigable waters, he wants to
give it some meaning and he wants to give it a traditional kind
of meaning.
As I testified earlier, it is just my sense that that is
not what the statute is about. I think that if we are going to
be honest about what we are trying to accomplish with the Clean
Water Act, it is not anything to do with navigation. So my
strong preference would be to see this phrase eliminated from
the statute.
Mr. Oberstar. Thank you.
Professor Buzbee?
Mr. Buzbee. Yes, thank you.
I would concur. As I said earlier in my brief, very quick
remarks, the Supreme Court has twice focused on the word,
navigable, and given it a separate content, and that has partly
shaped the decisions that have limited the reach of the Clean
Water Act. I think that the Supreme Court looks at legislation
and judicial opinions as an interactive process. If you all
come back with a new piece of legislation that retains the
word, navigable, I think they will read that as a well-advised
decision to retain navigable as a limitation on jurisdiction.
It also important what the Restoration Act does is takes
the regulatory definition. There has long been that legislative
history about the intent to legislate to the limit--I think the
exact language by Representative Dingell, I won't quote--but to
legislate broadly, and that wasn't enough already for the
Supreme Court. So even if you try to do it now in effect but
leave in the word, navigable, I think it will largely undercut
the reason for this very statute.
Mr. Oberstar. Ms. Albrecht?
Ms. Albrecht. Yes, I think the word, navigable waters, can
have an extremely broad meaning as we have seen over the years.
And so, you can use the word and go back to the word, navigable
waters, and still get very, very, very broad jurisdiction.
Mr. Oberstar. But if we tie with it, you are not forgetting
the second point I made.
Ms. Albrecht. Right. Yes.
Mr. Oberstar. Tying with it the preexisting regulation or
regulatory scheme.
Ms. Albrecht. Right, and I think that second question about
preexisting regulatory scheme, I think I would have to know
more about exactly what it was that you are talking about
because there is some ambiguity there.
But I think that the use of the term, navigable waters, is
a way to express that there are some waters that are Federal
and there are some waters that are State. It gives heft to the
idea of cooperative federalism and that the role of the States
in managing their land and water resources is important, and we
are not going to override that.
Mr. Oberstar. You think that the two separate Court
opinions were making that distinction, drawing a distinction
between the extent of Federal jurisdiction and the extent of
State jurisdiction?
Ms. Albrecht. I think that they were recognizing that there
was a place for the States and that when Congress passed the
Clean Water Act, that it was building on the idea that the
States have a very, very important role, and they were trying
to give effect to that. So the phrase, navigable waters, is an
expression of Congress' recognition of that important role.
I think that if you keep the phrase and you still say we
are trying to go broadly, you would have a lot of possibility
of getting there, what you are trying to get to.
Mr. Oberstar. Mr. Adler?
Mr. Adler. Well, I certainly agree that leaving the word,
navigable, in the statute would indicate that Congress
understood that there are some waters that are not Federal
waters and that are State waters.
But I think that if the legislation were to try and adopt,
either by paraphrasing or using direct language, the pre-SWANCC
regulations that were on the books, there would still be
problems. One reason is that certainly the Migratory Bird Rule
that was invalidated in SWANCC had already been invalidated in
the Fourth Circuit some 20 years earlier, or not 20, some 10
years earlier.
Mr. Oberstar. Was the Court saying that the Migratory Bird
Rule is not sufficient to establish authority for regulating
such waters?
Mr. Adler. I think that after the Supreme Court's Lopez
decision in 1995, it has been recognized by many commentators
that the regulations on the books, in particular, Section A(3)
of the EPA-Corps regulations were problematic because they
asserted authority over waters and wetlands in excess of the
sort of authority discussed in Lopez.
Mr. Oberstar. Had the term, Migratory Bird Act or Rule,
been left out of the regulation, would the Court have come to a
different conclusion?
Mr. Adler. In SWANCC, I don't think so. I think in both
SWANCC and Rapanos, the Court recognized that Federal
regulatory jurisdiction is not unlimited and that in the
absence of a very clear line, either from Congress or from the
regulatory agencies, the Court would try and craft one. I think
in both SWANCC and Rapanos, that is what the Court tried to do.
I think what the Court signaled in both cases, consistent
with its prior federalism decisions, is that the one answer
that is not acceptable is a regulatory interpretation that
asserts authority over all waters, Federal and otherwise.
Mr. Oberstar. Can you, Ms. Albrecht, craft bright-line
language to distinguish between Federal and State jurisdiction?
Not here
Ms. Albrecht. I was going to say, here today?
Mr. Oberstar. Not right here, not right here and now. But,
yes or no, do you think that is possible?
Ms. Albrecht. Yes, I think it might be, but I can't do it
today.
Mr. Oberstar. Well, neither could I.
Ms. Albrecht. I think that the problem with A(3) right now
and the problem with A(3) since the Lopez decision was that
A(3) premises Federal jurisdiction on a potential effect on
commerce. What the Court really said was potential effect is
kind of this limitless, boundless kind of idea.
In fact, in Lopez, what they said was we need an actual,
not a potential, effect. We need a substantial, not--what was
it?
Mr. Adler. Substantial effect.
Ms. Albrecht. We need a substantial and actual effect.
I think if you kind of take those kinds of ideas and you
begin to think about what you can do under traditional
authority over navigable waters, there are ways to do things. I
am not quite sure, sitting here today right now, but I would
love to have an opportunity to think about it.
Mr. Oberstar. Give it some thought.
Let me ask Professor Squillace and Professor Buzbee the
same question. Can you make a distinction, if necessary?
Mr. Squillace. I don't think one can make a distinction
that is not simply going to lead to more litigation. I think
the problem that we have here is that in order to adequately
regulate the Nation's waters, we need to have the Federal
Government in charge of the program.
We have the States involved in adopting their own
permitting programs. Most of them have done so under the
Section 402 program. Most of them have opted not to do that
under the Section 404 program, but certainly that opportunity
is there for them. I think only in that way can we avoid what
has become almost a nightmare of litigation and difficulty in
terms of trying to distinguish waters that are supposedly
jurisdictional and those that are not.
I think we would be much better off if we just got rid of
that distinction and had the resources of the Federal
Government and the State Governments focusing on protecting our
Nation's waters.
Mr. Buzbee. I would agree with those comments.
I just had a couple points. One is in looking at this and
your figuring out your power, I don't agree with the commentors
to my left who suggested that Lopez declares Section A(3)
unconstitutional.
I think if you look at the Supreme Court's decisions from
Lopez through the Morrison case up to the case of Gonzalez, the
Supreme Court has made quite clear that this Committee has
abundant power, as does Congress, to regulate waters that are
important to commerce, commercial activities that harm waters,
and that really does cover almost all situations you can
imagine, that people just tend not to destroy waters of the
United States or pollute unless they are imbued with commerce.
Mr. Oberstar. Very important distinctions, very important
contributions, and I appreciate it.
Before I go to other Members, I just want to say I would
have loved to have the opportunity to argue this case before
the Supreme Court from my perspective and at least cause the
justices to read the opening paragraph of the 1972 Act.
[Laughter.]
Mr. Oberstar. The purpose of this Act is to establish and
to maintain the chemical, physical and biological integrity of
the Nation's waters. That covers everything in the Act.
But justices don't do this. They don't go to the Committee
report. They don't go to the report of conference because
justices say, if Congress meant what they said here, then they
would have written it over there in the law. I know. I have
been through this for 40 years.
Yet, in the Committee report, we were very clear to say
with the term: Maintaining the term, navigable waters, we
intend the broadest application of that term, so as to manage
by watershed.
Well, now we have a whole body of regulatory action and
court cases, and we have to untangle this, as they say in
French, pannier des crabes. We are thinking our way through it.
The translation is basket of crabs, but we would say a can of
worms.
[Laughter.]
Mr. Oberstar. Mrs. Drake.
Mrs. Drake. Thank you, Mr. Chairman.
I would like to thank all four of you for being here and
listening to your testimony, I think, really encapsulated what
we as Members of Congress have been struggling with in the
first hearing and in the hearing today. Two of you said
something exact opposite of the other two of you.
I would like to challenge, Mr. Chairman, that when you are
working on the line, if the four of you could work on some
definitions that maybe we could agree with because we still,
underneath it all, hear the same argument that we want
clarification and we don't want to diminish the Clean Water
Act, but we want to have that clarification and definitions and
not feel like we are taking an action that is doing something
totally different than what we thought.
I would like to follow up on the testimony with two
questions, two follow-up questions.
First, Professor Adler, to follow up on the Lopez case, I
wonder if you could tell us how that 1995 Supreme Court
decision would impact jurisdictional decisions in the future if
2421 were enacted.
Mr. Adler. Well, I think it would still color the way that
Federal courts would interpret the scope of the Federal
Government's constitutional authority, and I think that is not
only because of the Lopez decision itself. It is because SWANCC
and Rapanos made that clear.
The SWANCC decision said that it was interpreting the law
narrowly because it doesn't want to declare an act of Congress
unconstitutional and to not interpret the law narrowly would
have forced the Court to look closely at whether or not
portions of the Clean Water Act were unconstitutional.
In the Rapanos decision, Justice Kennedy's concurrence made
very explicit that he was adopting the approach that the SWANCC
court adopted and made very explicit again that that approach,
in his view, was necessary to avoid potentially troubling and
constitutionally questionable interpretations of the law.
So from Lopez through SWANCC and Rapanos, we see the
Supreme Court saying consistently that the Federal Government's
authority is very broad, it is very extensive, but it is not
unlimited. If Federal legislation does not contain language
that clearly limits the scope of that or the scope of
regulatory authority to ensure that it stays within
constitutional bounds, then the courts may have to challenge
the constitutionality of the statute.
What the Court did in SWANCC and Rapanos is it used the
word ``navigable'' as a way of saying: Okay, this is an
indication that Congress understood its power was not
unlimited, and so we are going to use that as the way to
understand that there is a limit on Federal power. There is a
point at which Federal power ends and exclusive State power
begins.
That is a principle that I don't think we can get away
from. It has been a principle since our Nation's founding, and
it is a principle the Court continues to reaffirm.
I think this statute, on the lines of the statute, either
the statute particularly asserts authority over all intrastate
waters without defining what that means and is asserting
authority beyond the scope of Federal jurisdiction, in which
case we have lots of legal problems and lots of litigation, or
it is simply asserting the tautology, that it is asserting
Federal authority as far as Federal authority goes without
giving us any idea of where that line is.
Either way, courts and agencies are going to have to figure
that out to avoid the sorts of constitutional problems that the
Supreme Court was trying to avoid in SWANCC and Rapanos.
To say we are going to regulate as much as we can but not
say how much that is leaves to other parties to answer that
question. I think the legislation, as written, does that. So it
doesn't avoid the constitutional problem, and it doesn't
provide clarity because it doesn't answer the most important
question, which is how far ultimately does the regulation go?
Mrs. Drake. Thank you for that.
Professor Squillace, it sounded like from your testimony
that you believe all water should be considered Federal water.
What we have just heard from Professor Adler, I think, you
would disagree that we have the authority to go to that.
Mr. Squillace. Yes. I am glad you raise that question
because I do want to be clear about this. What we are talking
about in this new definition is not a regulatory provision.
That is we are not talking about the Federal Government having
regulatory responsibility over all of these waters just because
that is what they are.
What we are talking about is defining the scope of those
activities that might be subject to regulation under the other
provisions of this statute such as 404 and 402. So, for
example, if someone is discharging dredged or fill material
into the waters of the United States as newly defined, that
would be subject to Federal regulation. If someone was
discharging a pollutant into the waters of the United States
from a point source, that would be subject to regulation under
Section 402 of the Act.
So I think it is important to recognize that just because
the waters are named in the definitional provision, in the
provision that is in the new definition of waters of the United
States, that does not translate into broad regulatory power
over those provisions, absent some other regulatory standard.
Mrs. Drake. If I could just ask Ms. Albrecht if you could
comment on what we just heard and your understanding of that.
Ms. Albrecht. From what I understand, I don't think I agree
with it.
I think if you call something a water of the United States,
you are saying that it is subject to Federal regulation when
certain activities happen in that place. If the outcome of this
legislative effort were that every single water in the United
States was a water of the United States, every single water
would be subject to Federal permitting requirements.
Now one of the interesting and puzzling questions in the
bill as it is now written is, as the Clean Water Act now is, it
regulates discharges of pollutants from point sources to
navigable waters, the language that you came up with in 1972
which has served us very well.
What this present bill has is the language also about
activities affecting. Although it is not exactly clear what is
meant by this language about activities affecting, I think one
plausible reading of it is that that is an attempt to regulate
not only discharges but to regulate activities that would
affect these waters of the United States, which would take you
probably or possibly outside the waters of the United States. I
mean outside the waters.
So if you had an activity up here that was affecting a
water of the United States, the activity up here might be
regulated. Just, there is some ambiguity here about what is the
meaning of that.
I think that whenever you have new legislation, you are
going to have to have a rulemaking. The agencies are going to
have to figure out what it means. There will be litigation
about what do these words mean.
The words that are in H.R. 2421 are very absolute. You have
the words, all intrastate waters. You have the words, to the
fullest extent of Congress' legislative power under the entire
Constitution, not just the Commerce Clause. Those are very
broad words, and a court looking at that will say--I mean could
say--could say that means that Congress intended to regulate
every single water to the extent of whatever its authority is.
As Professor Adler is pointing out, it sort of begs the
question, what is that authority and where does it end?
And so, the only way you would find it really is ultimately
through litigation. So, in a way, what would happen is that
Congress would end up throwing it back to the courts, which I
don't think is what you want to do.
I think you are trying to solve a problem here, and I
respect that, and we want to work with you on that.
Mrs. Drake. Thank you. I believe that we are trying to
solve a problem, but it sounds to us that we are making the
problem bigger.
So, thank you, Mr. Chairman. I will yield back.
Mr. Oberstar. Very good, very good discussion of a very
complex subject matter. I just point out that what is intended
is a three-part test, the point source discharge from that
point source and the waters.
Mr. Larsen.
Mr. Larsen. Thank you, Mr. Chairman.
For Mr. Squillace, I don't understand what you were saying
regarding navigable being in the statute. It is in the statute,
perhaps with the qualifications that the Chairman has pointed
out, and it is in the conference report apparently from 1972.
I haven't seen that, but since the Chairman was here then,
working on that, I am certainly not going to doubt him nor
would I doubt him if he said it without evidence. I would
certainly stand behind what he had to say.
So I don't understand your comments. To me, it makes it
sound like either you disagree with it or that Congress made an
error. Your conflict isn't a legal conflict. It is that you
just don't think it ought to be in there.
Mr. Squillace. Yes, fair point, and let me try to address
it as best I can.
I think when Congress chose to use the phrase, navigable
waters, they were simply borrowing that language from the
Rivers and Harbors Act, and I frankly don't think they really
thought about it in the context of traditional navigable
waters.
I take that in part from the fact that, as the Chairman has
already noted, Congress said quite explicitly in the conference
report in the bill that it intended the broadest possible
constitutional interpretation of that jurisdiction under the
Clean Water Act. That is not navigable waters, and so that sort
of explanation of what Congress intended didn't fit that
phrase, navigable waters.
As I have already mentioned, and I think it is absolutely
clear if you look back at the legislative history, there is no
doubt in my mind that Congress intended to go well beyond the
Rivers and Harbors Act in a particular Section 13 of the Refuse
Act in setting out the jurisdiction of the Clean Water Act.
Yet, the Rivers and Harbors Act provision specifically includes
tributaries of navigable waters as well as navigable waters.
Mr. Larsen. Right.
Mr. Squillace. We are in this ironic situation now where,
because of the Rapanos case, we have a court interpretation
that seems to be narrower than the Rivers and Harbors Act on
which it was based. Ironically, I say because I think Congress
clearly intended it to be broader.
Mr. Larsen. Okay. For Professor Buzbee and Professor Adler,
I will just pick on you two rather than have all four of you
because it seems that perhaps you two differ maybe on some
things, and so it might be more fun.
Listening to Secretary Woodley from the Corps, he seemed to
say, and I think I will mix up some metaphors here, but that
there was a need for the agency to draw a line to which to
tether regulator guidance. At least that seemed to be his point
of view, from the Corps' point of view presumably.
So, on this issue of drawing a line or having a stake in
the ground, whatever metaphor you want, upon which the
regulatory agencies can attach themselves in order to create
guidance, does it not make sense to have a tether, a bright
line, whatever terms we have been using or, if it doesn't, then
upon what should the agencies develop their regulatory guidance
because they are going to have to based it on something because
they are going to have to defend it sometime?
Mr. Buzbee. Well, I would say that perhaps most importantly
the best way to get clarification is to take what, at this
point, is a statute that doesn't define waters of the United
States, take that regulatory definition as does the Restoration
Act and put it in. That would be the biggest clarification of
the Clean Water Act you could imagine because then the Army
Corps and EPA would know exactly what the key provisions are
they need to look to and it would make them statutory.
I thought it was striking that when one of the
representatives, Congressmen, asked Mr. Cruden, would the
Restoration Act lead to an increase in litigation. His answer
was it would not lead to a decrease in litigation, and so he
was very careful with this.
I think that this would add clarity. So I think that is the
best way.
As far as drawing a bright line, if you are suggesting that
maybe there is some way without legislation you can get a
bright line, I don't think you can.
I think that this an area that is pervaded by blurry edges
and judgment calls. You need agencies exercising expertise, and
they long have. I think the idea behind the Restoration Act is
to give that power back to regulators who are much better at
this than our Supreme Court justices.
Mr. Adler. As you suggested, I do disagree with my
colleague a little bit.
First of all, the legislation, as it is written, doesn't
simply incorporate the existing regulations. It omits certain
phrases. It summarizes certain phrases. I think, in some
respects, it is potentially even broader than at least portions
of the existing Federal regulations.
And, as I have already noted and as many commentators have
noted, the existing regulations have problems and have had
problems since the Lopez decision for a variety of reasons. The
Army Corps of Engineers and EPA have decided for the last 13
years not to revise their regulations though, as I know Ms.
Albrecht has pointed out on numerous occasions, they have said
I think probably at this point 15 or 20 times, that they were
going to issue new regulations and clarify the scope of their
rules. They haven't done so.
That is going to be necessary whether legislation passes or
not because unless legislation is going to have the level of
detail and intricacy that is possible through a notice and
comment rulemaking, the agencies are going to still have to
spell out: Okay, how do we know that this water is within
Federal authority? How do we know it is something that may
affect commerce or that has a substantial effect on commerce?
The agencies are still going to have to spell that out.
What I would argue is important to do if we want clarity
now and want to get away from the very difficult and very time-
consuming, case by case, situation-specific analysis that the
agencies are forced to go through now is this Committee--I
don't know if you could force them but essentially encourage--
strongly encourage the agencies to do what, again, three
justices in the Rapanos decision called upon the agencies to
do; which is to use their expertise, use their understanding of
ecological interconnection to spell out what it is that
constitutes a significant nexus to navigable waterways because
that would both take care of the constitutional problem,
because it would tether the assertion of jurisdiction to the
ultimate source of Federal authority in this area which is some
connection to interstate waterways and navigability.
It would also allow for regulatory definitions to take into
account contemporary scientific understanding.
As the Kennedy opinion, the Roberts opinion, the Breyer
opinion all made very clear, the Court will be very deferential
to that sort of decision and that sort of rulemaking and, in
fact, courts will be more deferential to the Corps of Engineers
and the EPA laying out what it is that establishes the
significant nexus than they will be to ad hoc, case by case
jurisdictional determinations made in the context of a given
enforcement action or given case of litigation. The Robison
case in the Eleventh Circuit bears that out.
The courts are going to be less deferential to the
arguments made by a given enforcement agent in a given context
much as Justice Kennedy notes, though, they will be a lot more
deferential to the agency saying, in most cases, these sorts of
ecological features are indicative of a significant nexus.
Justice Kennedy made very clear that the agencies can be
over-inclusive. If they give a reason why in most cases a
certain ecological feature is going to provide that significant
nexus, as Justice Kennedy said in his concurrence, that will be
good enough. In fact, he justified the Riverside Bayview Homes
decision on precisely that ground.
I think that is the only way to get not perfect certainty,
not an absolute bright line, but at least to get a dramatic
step towards the level of certainty that this Committee and the
environmental community and the regulated community all want.
Mr. Larsen. Thank you.
Mr. Oberstar. The gentleman's time has expired.
Mr. Ehlers.
Mr. Ehlers. I have no questions at this time, Mr. Chairman.
Mr. Oberstar. Mr. Salazar.
Mr. Salazar. Thank you, Mr. Chairman.
I have a couple of questions for Professor Squillace. In
your testimony, you talked about how there were two court cases
that actually declared the Colorado River not navigable, right,
but it is my understanding that the river is still handled and
regulated under the Clean Water Act, correct?
So I guess what I am asking you is what difference would it
make whether the river is not navigable or navigable? For
example, many of my friends have actually floated down the
river on rafts, and so I would consider it navigable to a
certain extent.
Could you expand on what you meant by that statement?
Mr. Squillace. Sure. I hope I can call you as a witness to
that effect if we get into litigation over whether the Colorado
River is navigable. There is more discussion about that.
I was expecting this question. I am not surprised to hear
it. I guess what I would say is that there is a real problem
with the way in which the current law has been construed in the
Rapanos case in this specific regard.
There is a case out of, I want to say, the Eleventh
Circuit, the Robison case, that involves a decision, a
situation just as you are talking about, where the individual
who was subject to the Clean Water Act got an NPDES permit,
accepted that he needed one, had it for years, and ultimately
was caught essentially violating, deliberately violating the
statute.
He was indicted on 25 criminal counts for violating the
statute. He told his employees to lie about the violations. It
was really a parade of horribles in this case.
His defense was, well, these weren't waters of the United
States. Ultimately, I think the case has not been fully
resolved, but essentially he won in the Eleventh Circuit. The
Court sent it back to determine whether or not it meant the
significant nexus test that Justice Kennedy set out.
There was all along an acceptance, and there has been for
years in many of these cases, that the Clean Water Act applies.
But now the Rapanos case, I think, has allowed an opening, if
you will, to challenge all of these issues.
I share your sort of skepticism, I guess, about the
validity of these decisions of the Colorado Supreme Court. You,
fairly I think, point out that perhaps there is more than one
test for navigability that might play out.
The Court really hasn't been very helpful in ferreting that
out for us, and I honestly think that the only way to address
this problem is to really get beyond navigability. It has never
been about navigability with the Clean Water Act. It has been
about clean water.
There are lines that we need to draw. We should talk about
where those lines are, but I think that we ought to do that in
a way that doesn't deal with a concept that really doesn't have
much meaning in terms of keeping our Nation's waters clean.
Mr. Salazar. But you do agree with me that the Colorado
River is regulated under the Clean Water Act?
Mr. Squillace. I would agree.
Mr. Salazar. Whether it is navigable or not?
Mr. Squillace. I would agree that, as for now, people
accept that they are subject to regulation when they discharge
pollutants from a point source into the Colorado River.
Mr. Salazar. Just briefly, could you expand a little bit? I
know that in your testimony, you talked about water is an
article of commerce. I am not quite sure what you mean by that.
Mr. Squillace. Well, the Supreme Court has made clear in an
old case called Sporhase v. Nebraska that water is an article
of commerce. In that case, they specifically prevented the
State of Nebraska from denying a Colorado farmer the right to
take water from Nebraska into Colorado. So we know from that
Supreme Court decision, water is in fact an article of
commerce.
That doesn't mean--and I want to emphasize this--that the
Congress has not been deferential toward the States in allowing
each State to adopt its own system of regulating water, but it
does mean at the end of the day that the Federal Government has
a broad authority to regulate water as commerce.
Mr. Salazar. Thank you.
I yield back, Mr. Chairman.
Mr. Oberstar. I thank the gentleman and the witnesses.
Mr. Hayes? No questions.
Mr. Hall.
Mr. Hall. Thank you, Mr. Chairman, and thank you to our
witnesses for your illuminating testimony.
We have in New York, I think, a strong sentiment in favor
of, certainly an official position in the State of New York,
which I share, is strongly in favor of the passage of the Clean
Water Restoration Act with some concerns on both sides about
the possible expansion.
I know some people who have private ponds or, in some
cases, natural ponds or lakes on their property which have no
inlet but do have a seasonal outlet. They are concerned about
their lakes suddenly becoming Federal regulated, or ponds,
something quite small, because they flow into something that
flows into something that eventually is navigable and/or that
eventually will fall into this definition whether the word,
navigable, is not.
As a sailor, I can tell you that I totally agree with Mr.
Squillace's statement that navigability has really nothing to
do with it. It was just a way of trying to define where the
line was. I have sailed through some pretty polluted waters and
some very clean waters, and the boat doesn't seem to care.
[Laughter.]
Mr. Hall. I will just speak about my own home on a hillside
in Duchess County, New York, where we have two neighbors living
up the hill from us with leach fields. When it rains heavily,
when we have the three 50-year floods that we had in the last
four years, some of the driveways look like they might be
navigable.
My next neighbor down the hill has a stream. It is a full
year-round stream and a pond flowing behind the house. It runs
eventually into, I think, the Great Swamp and from there into
the Ten Mile that goes to Connecticut and eventually into Long
Island Sound.
So it is very hard to draw the line, and I agree that we
need, if it is possible without using the word, navigable, to
find the clearest possible line especially because the courts
will change. This Court seems to be less friendly to regulation
than some. Some of us hope that we will, in the future, have a
court that will be more friendly to regulation, but that
vacillation should be reined by the legislation.
In the wake of the rulings of the Court and subsequent
Administration guidance, it seems as if several polluters that
were previously required to obtain permits are now trying to
buck that requirement by arguing that the waters should never
have been regulated in the first place. If this trend continues
without a restoration of an original congressional intent, what
would the impact be on the effort to ensure that our waters are
fishable and swimmable?
This would be to Mr. Squillace, first, please.
Mr. Squillace. I think we don't know is the answer. At
least I don't know the answer to what impact that is going to
have. I think what we can say, though, is that there will be
many discharges that will simply not be regulated, at least not
by the Federal Government.
Now one of the difficulties that we have here is that many
of the States have good programs to try to regulate beyond what
the Federal Government does, and I don't want to take away from
what the States are able to do, but I think it is difficult
when we don't know exactly where these lines are for us to know
who should do what.
I think part of the reason that the States have been so
overwhelmingly supportive of broad Federal authority is because
it is simply easier to have the Federal Government broadly in
charge of most of our waters in this Country and allowing the
States to play a role through the process that is established
under the Clean Water Act. The States seem entirely comfortable
with that.
I think that if we don't do that, then I don't know what
exact impact that is going to have on our waters. Certainly
there is at least a significant risk that there will be adverse
impacts on those waters.
Mr. Hall. Professor Buzbee?
Mr. Buzbee. I would agree with that.
Just, there are several instances. The Robison case was
mentioned, where criminal law violators of Section 402 have
sought to escape the Federal Government's jurisdiction based on
this.
There are cases involving oil spill regulations that the
American Petroleum has litigated and claimed that the spill
regulations can no longer reach as far as the Federal
Government has asserted because of these laws cases.
Then there are several instances involving some lakes and
ponds, and also I have heard of some of these permits out West
where a permittee has claimed the Federal Government cannot
reach them any longer.
So I think your question is does the law, as it stands now,
cut back on Federal protections? The answer is clearly yes.
Even more important is everyone, including the witnesses,
clearly agree the SWANCC case clearly cut back on Federal
jurisdiction. I think every witness here would agree the SWANCC
case cut back on Federal protections. So, in that respect,
Rapanos is having the effect we are seeing now, and SWANCC has
long been understood to reduce Federal protections.
Mr. Hall. Mr. Chairman, my time is expired, but would you
allow the other witnesses to answer the same question, please.
Mr. Oberstar. Very good.
Mr. Hall. Thank you.
Mr. Adler. Yes. I would just say very briefly, certainly
Federal regulation has been restricted some, but it is not
clear that that necessarily means meaningful environmental
protection has been restricted. The most expansive Federal
regulation is not always the best way to protect the
environment both because, in many cases, State and local
governments are capable of intervening and they are more likely
to intervene if the boundaries between the State and the
Federal Government are clear.
If the States know there is a gap to fill, they are more
likely to fill it than if it is unclear that there is a gap to
fill. Evidence of that, for example, is after the SWANCC case,
quite a few States including my own Ohio introduced legislation
to regulate isolated waters. Some passed very quickly and those
that didn't pass stalled once the Army Corps of Engineers and
EPA, contrary to most commentators, said: We can, through our
guidance, kind of wave our hands and pretend as if the SWANCC
decision didn't do anything, which is one of the things that
ended up leading to Rapanos.
When they reintroduced uncertainty into the scope of
Federal jurisdiction, the States were suddenly much less
aggressive in trying to fill that gap. It is not that States
wouldn't like the Federal Government to regulate for them, just
as the States wouldn't like the Federal Government to pay for
their roads or pay for other things.
The question is will States, if they recognize there is a
gap and the definition of that gap is clear, act to fill that
gap and to protect those waters that are important to States
and local communities? I think they will do so a lot more than
we have given them credit for and are more likely to do so
where we can clarify the nature of the boundary between the
Federal and State governments.
Ms. Albrecht. I rest.
Mr. Hall. Thank you, Mr. Chairman.
Mr. Oberstar. Thank you very much.
I just point out that there are at least 25 States that
have legislation establishing no more restrictive requirement
or stringent requirements than those that exist in Federal law.
So there could be some very significant gaps.
I hold this panel dismissed with a great appreciation for
your comments and for the striking divergence in views.
Ms. Albrecht, Professor Adler, I asked for your comments
and your legislative suggestions on prior converted cropland,
navigable waters and the accompanying regulatory framework and
other items, and I hope you can do that within the next 30
days.
Ms. Albrecht. Okay.
Mr. Adler. Sure.
Ms. Albrecht. We will work on it.
Mr. Oberstar. Thank you very much.
Mr. Squillace. Thank you, Mr. Chairman.
Mr. Oberstar. On our next panel, we will make one
adaptation for a witness who has a flight problem. That is if
he doesn't get out of here soon, he will miss his flight.
Chris Petersen, President of the Iowa Farmers Union; Brett
Hulsey, Dane County Supervisor, Madison, Wisconsin; Kristin
Jacobs, Broward County Commissioner, Fort Lauderdale, Florida;
Robert Cope, Commissioner, Lemhi County, Salmon, Idaho speaking
for the National Association Counties; and the Honorable Don
Munks, Skagit County Commissioner for the State of Washington,
Mount Vernon.
TESTIMONY OF THE HONORABLE BRETT HULSEY, DANE COUNTY
SUPERVISOR, DISTRICT 4, MADISON, WISCONSIN; CHRIS PETERSEN,
PRESIDENT, IOWA FARMERS UNION; THE HONORABLE KRISTIN JACOBS,
BROWARD COUNTY COMMISSIONER, DISTRICT 2, FORT LAUDERDALE,
FLORIDA; THE HONORABLE ROBERT COPE, COMMISSIONER, LEMHI COUNTY,
SALMON, IDAHO ON BEHALF OF THE NATIONAL ASSOCIATION OF
COUNTIES; AND THE HONORABLE DON MUNKS, SKAGIT COUNTY
COMMISSIONER, DISTRICT 1, MOUNT VERNON, WASHINGTON
Mr. Hulsey. Thank you, Mr. Chairman.
It is a pleasure to be here today. I decided to give a
little slideshow to brighten things up.
I am Brett Hulsey, Dane County Supervisor and, yes, the
PowerPoints work. So, Dane County encompasses Madison,
Wisconsin.
[Slide shown.]
Mr. Hulsey. Dane County, Wisconsin encompasses Madison,
Wisconsin, the University of Wisconsin and the largest
agricultural county in Wisconsin. We are the 89th largest
agricultural county in the Nation and one of the top tourism
counties is Dane County. So we balance many of these issues on
a daily basis.
[Slide shown.]
Mr. Hulsey. In addition to this, we have many challenges as
well. Closed beaches, the one on the left is a closed beach in
my district. The discharge on the right is coming from an
upstream area. We are a headwaters area ourselves.
I have been on the county board for 10 years. I am the
Chair of the Lakes and Watershed Commission, and I am also
Chair of our Personal Finance Committee. So I try to combine
your zeal with Congressman Obey's finances at the county level.
Sometimes, I succeed.
[Slide shown.]
Mr. Hulsey. So, basically, the issue here is that recent
Supreme Court decisions have created chaos, as you have
mentioned before. About 59 percent of our surface streams are
no longer or at risk of losing protection. That is drinking
water to 100 million Americans, roughly 1 in every 3 Americans.
Twenty million acres of wetlands are at risk.
We believe and I believe that your solution is a reasonable
step forward to solving the chaos.
So, I first got involved in Clean Water Act issues,
actually safe drinking water issues, in 1993 when the crypto
outbreak in Milwaukee killed more than 100 people and sickened
400,000. It was the largest waterborne disease outbreak in
modern U.S. history.
We have 400 individual permits, getting to your comment,
Mr. Salazar, that dump to, that emit to ephemeral streams and
headwater streams in Wisconsin.
[Slide shown.]
Mr. Hulsey. My concern is that we would allow
slaughterhouses, feed lots, if this chaos continues, to emit
directly to drinking water sources in our State and that we
could have a recurrence of the crypto outbreak.
[Slide shown.]
Mr. Hulsey. As we see, and this slide is from a recent
Seattle Times article, we are seeing drinking water supply
issues. This is from Congressman Larsen's district north of
Seattle, a Seattle Times story: Worry About Drinking Water
Supplies.
[Slide shown.]
Mr. Hulsey. And this is what counties face today. The
headline on the left and the picture to the left is from my
county. The picture on the right is an example of where the
road builder and construction engineers should have better
considered wetlands in creating this reflecting pond below that
diamond eight interchange.
Floods are not new, however. We have seen this since the
Bible. Unfortunately, as Jesus said, you build your house on
your rock and it will withstand the flood.
[Slide shown.]
Mr. Hulsey. The main problem is we have seen a huge growth
in flood insurance payments in the billions of dollars.
[Slide shown.]
Mr. Hulsey. There was a mention about real estate. Wetlands
do not usually increase the value of real estate. Here is an
example where they make it very difficult to sell in our
county.
We have had about $50 million of flood damage in our county
since 1993.
[Slide shown.]
Mr. Hulsey. As you can see, there is a very steady pattern
of flood damages across the Country. In your own district, it
is Aitken County. In Congressman Larsen's district, you are
actually in one of the highest flood disaster declaration areas
in the Nation.
[Slide shown.]
Mr. Hulsey. It tends to be about a third of the
declarations are from floods but about two-thirds of the
damages from floods, and it varies a little bit by region.
[Slide shown.]
Mr. Hulsey. But we see a huge increase in flood damage due
to habitat destruction, probably climate change and also flood
plain development.
[Slide shown.]
Mr. Hulsey. This is a 1993 flood. Again, you see highway
structures under water.
[Slide shown.]
Mr. Hulsey. This is the before and after for St. Charles
County right north of St. Louis, and there was a huge amount of
flooding there. Congressman Carnahan's father was a great
champion in moving the people out of the flood plain.
[Slide shown.]
Mr. Hulsey. So, basically, what I am saying in my remaining
few seconds is that we need the Clean Water Restoration Act for
two reasons. One is to protect people from deadly pathogens in
their drinking water. Two is to protect people from flooding.
Either you care about these things or you don't, and your
solution is the best solution to the problem I have seen.
We hope others will come forward, but if you care about
these things, you have to do something about it because the
current court-created chaos cannot continue.
Thank you, Mr. Chairman.
Mr. Oberstar. Thank you very much for your presentation.
We will go now to Mr. Petersen.
Mr. Petersen. Thank you, Chairman Oberstar and Ranking
Member Mica and Members of the Committee. We appreciate the
opportunity to testify today.
My name is Chris Petersen, and I am the President of the
Iowa Farmers Union. I have been involved in production
agriculture for 35 years. Presently, my wife and I maintain a
30-head sustainable Berkshire sow herd on our farm near Clear
Lake, Iowa. That is north central Iowa.
In 2001, I started my own business doing consulting work
with a network of independent family farmers, grassroots
environmental activists and consumers consulting on
concentrated animal feeding operations, family farm issues,
food quality and safety issues and all other rural issues.
Iowa Farmers Union policy states that our environment is
best protected by family farmers who have a long-term interest
in the productivity of the land and the healthy, safe and pure
supply of our water. In constructing national policy to address
the issues associated with water quality, we support the
following actions:
Efforts in research that addresses the issue of nonpoint
source pollution;
Concentrated animal feeding operations being required to
post appropriate bonds to cover the cost of cleaning up any
contamination of surface and groundwater resources. When
posting these bonds, CAFOs should also be required to develop
and submit waste storage closure plans;
A national policy that discourages polluters from shopping
among the States for the lowest environmental standards and
encourages States and localities to establish standards beyond
the Federal minimums;
Cost-sharing provisions targeted to small and medium-sized
farms;
Responsibility for submitting a waste management plan and
complying with waste management provisions being shared by the
owner of the livestock and the operator of the facility;
And, I guess taking that a little further, responsibility
and liability for environmental and pollution problems being
shared between the vertical integrators and the contract
farmers on all livestock feeding operations.
By changing the word of the Act to simply waters, a
national set of guidelines can be established for eligible
waterways, creating uniformity in the jurisdiction process and
expediting the subsequent permitting process. Additional time
devoted to determining jurisdiction comes at a great cost to
both farmers and taxpayers. Like many aspects of agricultural
policy, a clear and concise method of determining jurisdiction
and permitting encourages farmers and ranchers to be proactive
stewards of water resources.
Restoring clean water practices to the methods used before
2001 would not cause unwarranted hardships on farmers nor would
it deliver them into a state of constant fear of EPA or the
Corps. Above all, agricultural producers are eager to highlight
the unique set of circumstances that warrant attention when
formulating clean water laws.
In this legislation, the current regulatory exemptions
related to farming, forestry, ranching and infrastructure
maintenance that have been in place since 1977 could not be
overruled. Activities such as plowing, seeding, cultivating and
harvesting along with the construction and maintenance of farm
or stock ponds, irrigation ditches and farm or forest roads
have been exempted from the permitting requirements and would
remain so under your proposed legislation.
I do encourage you to include the exhaustive list of
agricultural-related exemptions in future reauthorizations of
the Act as cited by you, Chairman, in your opening statement.
Water pollution damage is uneven in scope and severity
because it occurs when farming is done at the non-farmer owned
industrialized, commercialized levels. The ultimate challenges
facing lawmakers is how to account for the differences between
family farming operations and non-farmer owned industrialized,
commercialized levels of agriculture.
Family-sized producers should not be penalized either
through statute or financial burdens for the irresponsible
actions of massive corporate agriculture outfits who conduct
business with little regard for the environmental
sustainability.
I am just about done here.
What will help farmers and ranchers in the future is a less
cumbersome and more expedient process by which agriculture, EPA
and the Corps can come to a consensus of what problems do or do
not need to be addressed and the most common sense by which
challenges can be resolved and solved. We support your
legislation, and it needs to be passed to address the chaos of
the last few years.
I just want to make it very clear that I am a family
farmer. I am very environmentally conscious, and a clean
environment and clean water are very essential to every single
citizen of the United States.
Being a good steward of the land and clean water is not
elitist or a process of the wealthy. It is something that needs
to happen in this Country.
Thank you very much.
I am sorry, but I have a plane to catch. If there are any
questions, please address it through our National Farmers Union
office, and I will be more than happy to answer your questions.
Mr. Oberstar. Are you flying Northwest?
Mr. Petersen. United, actually.
Mr. Oberstar. Oh, well, you got a little better shot at it
then, at making that flight then, but you really need to leave
right now if you have a 7:45.
[Laughter.]
Mr. Oberstar. So, if we include the ag-related exemptions
with the savings clause and include reference to prior
converted farmland as we have discussed earlier today, which
you heard, that would make the bill more acceptable than you
already consider it to be?
Mr. Petersen. Yes, exactly. Farmers, basically, don't have
any problem, at least I don't and the farmers I run don't--
there are tens of thousands of us--with doing the right things
for better stewardship and clean water.
Mr. Oberstar. Thank you very, very much for your
contribution.
Mr. Petersen. Thank you.
Mr. Oberstar. Ms. Jacobs.
Ms. Jacobs. I guess it is almost good evening at this
point, but thank you, Mr. Chair and Members of the Committee,
for giving us and me the particular honor to be able to talk to
you today about the Clean Water Restoration Act, and I would
ask that my comments today be recorded as a part of the record.
I have been a Broward County Commissioner for 10 years,
representing the Nation's 14th largest county and the State of
Florida's second largest county by population. I am also a
member of the South Florida Water Management District's Water
Advisory Commission which comments on policies for the 16
counties in middle to lower part of the State of Florida, from
the Kissimmee chain of lakes all the way to Key West.
Broward County is bordered on the east by the Atlantic
Ocean and on the west by the Everglades, extending, as I like
to say, from the seagrass to the sawgrass. In fact, two-thirds
of our county is Everglades protected land. These natural
environments are connected by a network of 1,800 linear miles
of canals throughout our county, and the stewardship of our
water resources and protection of them from flooding and
drought are important responsibilities not only to Broward
County but to governments across the Country.
Broward County's environmental quality is an integral part
of our economic health with approximately 10 million visitors--
yes, I said 10 million--to our county per year, who enjoy our
natural resources as well as our local businesses.
Having served as Broward County's mayor during Hurricanes
Katrina and Wilma, which was the worst storm to hit Broward
County in 55 years, I saw firsthand how the protection of our
environmental efforts supports the flood protection
infrastructure that meets of our citizens to be safe in their
homes and their businesses.
Without protection, careful monitoring and regulation,
pollutants in surface waters and stormwater could easily
threaten the nearshore Everglades habitats. Our county has
benefitted greatly from those protections afforded us by the
Clean Water Act over the last several decades.
The Clean Water Restoration Act should be supported by this
Committee and by Congress. The bill is consistent with the
views of many prior Federal court decisions which held that
Congress intended to give the terms, navigable waters and
waters of the United States, the broadest permissible
constitutional interpretation. The bill clarifies Congress'
intent by restoring the agency's definition, providing a plain
meaning of waters of the United States, and resulting in more
traditional consistent regulation. Simply put, the bill
restores the scope of Federal jurisdiction, no more and no
less.
What the bill does not do is expand Federal jurisdiction or
preempt State or local jurisdiction as to water or to land use.
The savings clause preserves existing exemptions from Federal
regulation. Public infrastructure, maintenance and water supply
projects would not be treated differently than before SWANCC
and Rapanos.
The bill would continue to allow for stricter local
standards, which Broward County has higher standards than that
which is set by the State of Florida, and does not propose to
change the current authority of States to manage permitting,
grant and research programs.
However long it took to get a Corps permit in 1993, one
thing is sure, that post-Rapanos it is going to be even more
difficult to get those permits and longer if we don't change
the situation as it currently stands.
The bill has been criticized as introducing regulation of
swales and ditches. The role of the Federal Government in these
areas is not changed by passage of this bill. Swales are
prevalent throughout Broward County and are part of a water
quality treatment system, and treatment is provided prior to
discharge in canals or water bodies.
Ditches are already defined as a point source in Subsection
502.14 of the Act. The Clean Water Act allowed discharges of
pollutants from such sources to waters of the U.S. when they
comply with Section 402's NPDES program. The bill will simply
not expand or even disturb regulation of ditches under the Act.
Concerns about expanded regulation of public
infrastructure, maintenance and water supply projects are also
misplaced. When such projects affect isolated wetlands or very
intermittently existing waters, it can accommodate reasonable
Federal regulation given the 5-year and 10-year and sometimes
longer timeframes that are involved in capital funding, land
use acquisition and zoning decisions.
I would point out to you that Broward County has one of the
unique roles throughout our State that we have countywide land
use authority, and we have not had it challenge by the Clean
Water Act so far and don't expect it to be changed as passage
of this bill, hopefully, occurs. The lower risk of challenges
and litigation and the restoration of a uniform minimum level
of protection of our waters nationwide is what would result
from this bill's passage.
Mr. Chair, most of Broward County's congressional
representatives are among the 175 co-sponsors of your bill, and
I am proud that they are.
As for my opposing colleagues at NACO, I have no doubt that
they are very sincere in their concerns that this legislation
might preempt their local authority and make permitting
requirements even more onerous. Broward County respectfully
disagrees.
Let me assure the Members of this Committee, the Broward
County Board of County Commissioners supports strong water
quality protections and legislation that retains the original
intent of the Clean Water Act to restore and maintain the
integrity and quality of our Nation's waters, and we have
ensconced that in a resolution that I would provide for anyone
that would like to see a copy.
Restoring the Clean Water Act protections to all of our
water bodies is crucial as counties across the Nation are
dealing with massive flooding, lack of drinking water and new
threats of unregulated industrial pollution to our streams and
drinking water sources.
As a brand new grandmother, I think we can safely say that
this bill has some steps to go to reach clarification. I urge
you today to go through those steps to try to find that bridge
that links some of the issues for language which you clearly,
very well laid out for us this morning, Mr. Chair, and I would
ask that ultimately this bill pass this Congress for the good
of this Nation, for the good of our county, for the good of my
grandchild and those still to come.
I thank you so much for the privilege of offering my
testimony to you today.
Mr. Oberstar. Thank you very much. Grandmothers are coming
awfully young these days.
[Laughter.]
Mr. Oberstar. You must be very pleased with the legislation
that Congress enacted over the President's veto to restore the
Everglades in the Water Resources Development Act.
Ms. Jacobs. Oh, yes, sir. Yes, sir.
Mr. Oberstar. Over $2 billion to that initiative.
Ms. Jacobs. It is one of the most important things to
happen in the State of Florida.
Mr. Oberstar. Commissioner Cope.
Mr. Cope. Thank you, Mr. Chairman.
My name is Cope, as you know. I am here representing the
National Association of Counties, better known as NACO. I am
privileged to serve as the Chairman of their Environment,
Energy and Land Use Committee.
As you may well know, NACO officially opposes the Clean
Water Restoration Act. That was done through the process of a
resolution to that effect was approved by four committees,
steering committees of the organization, three of them
unanimously.
That doesn't mean that every county--you have heard Dane
county and Broward County--oppose it. That is not unusual. I
notice from the votes that you had taken today, it is pretty
rare that you get unanimity on the floor of the House. I think
that probably happens also in most places. But the vast
majority of counties have a basic problem with the type of
philosophy that this Act has.
Make no mistake about it, the issue is not clean water.
When we talk about the protections and all the pollutant
problems we have, this issue is jurisdiction rather than
quality.
All of us fully support clean water. It is essential in my
area of the West where we get 11 inches of moisture a year and
we don't have enough water to go around. Both the quantity and
the quality are vital to our very survival, but jurisdiction
does not necessarily bring with it, protection.
In fact, most of the big pollution we have in my neck of
the woods comes from the sludge that runs off the ground after
the forest fires that is due to the great protection that we
managed to put in place on our public lands. We have discovered
the hard way that Federal jurisdiction doesn't necessarily work
out best for the environment and for its people.
We do have some suggestions we would like to make. Overall,
we do feel that the word, navigable, needs to stay in place,
but it needs to be defined.
There is a wide range of definitions of navigability across
this Country. In Idaho, the definition of a navigable stream is
any stream that will float a six inch log in high water, and it
doesn't state how long the log has to be or how far it has to
float. I think there is some room for improvement on that
definition, myself, and I think we could have one that would
establish what we are actually talking about.
There are partnerships that need to be strengthened and
restored among Federal, State and local governments. I think
this is absolutely vital, and I very much fear that if we
decide that all the waters come under Federal jurisdiction, we
have the potential to lose some of those partnerships.
I am absolutely convinced that we lose flexibility. We have
never felt comfortable with spandex regulations nationwide. One
size doesn't fit all. I realize that things happen. My
colleague here from Iowa talked about the things they have, but
Iowa and Idaho are different, and the standards that will work
very well along the Missouri and Mississippi valleys on the two
sides of the State fail miserably in the Salmon and the Snake.
The same types of background for some types of heavy metals
you may find on the coast of Lake Erie in Ohio won't function
on the Pacific Coast of Oregon. Just for one thing, the arsenic
levels are higher for the background.
I do believe fully that some allowances have to be made for
geographical differences. If we try to put a blanket on the
entire Country, we are going to find places too loose and
places it is too tight. I see no avoiding that.
We fully believe that that government governs best which is
closest to the people. I think, from my experience, county
government tends to do that well.
I heard today a broad list of exceptions to the Act that
have been in place and stayed in place, but somehow on the
ground they don't seem to happen that way all the time. We had
Secretary Woodley who sat here--what is his name? I can't
remember now--and told us all the things that the Corps didn't
do, but I think he is missing talking to some of these people
because it doesn't seem to be uniformly applied.
A classic example we had just recently in my county, again
the forest service wanted to do a little campground improvement
at Meadow Lake. It is up about 9,000 feet. It drains into
nothing. It is a glacial basin. The Corps decided they had to
be permitted.
The forest service said: Why? It doesn't connect to
anything? It is just a basin there.
They said, well, don't you have some people go up and
recreate.
Well, yes, there are campers that come up.
Do they come from out of State?
Well, there are some that come out of Montana.
Well, that is interstate commerce, so it is now Federal
jurisdiction.
These are real case scenarios that are happening.
We also feel one of our prime projects has been the Upper
Salmon Basin Model Watershed Project. We have done a great deal
of work in Central Idaho for riparian enclosures, building up
fences. We do culvert replacement, stream reconnection. It is
funded mainly through Bonneville Power Administration monies.
Those monies cannot be committed more than 24 months in
advance.
We are barely making the permit applications now. I think
if we get any more load onto the Corps and extend that time at
all, we have deleterious environmental effects because we won't
be able to perform the actions that we have out there.
I say again, the issue here is not clean water. It is not
the environment. It is a question of jurisdiction and in doing
what is most effective and right.
When we have situations with the forest service, we have
two Federal agencies who are having to develop parallel
programs in concert with each other, both of them at taxpayer
expense. When we also have the Bonneville Power situation with
the model watershed, we are failing to provide some of the
really good environmental effects that we can have just because
our time delays become too great.
I really believe that man is capable of developing his own
environment and modifying his own environment for the better
and that not all activities men do are necessarily bad. We can
do beneficial things.
I would like and I believe NACO would like to see the
flexibility for local government to utilize the expertise that
we have on the ground and do that best efficiently, and I
believe the Act, in the form it currently has, doesn't take
that into consideration.
Thank you.
Mr. Oberstar. Thank you very much, Commissioner Cope. We
appreciate your statement.
Commissioner Munks from Skagit County.
Mr. Munks. Skagit County, you got it right. That is good.
Thank you, Chairman Oberstar and distinguished Members of
this Committee.
It is an honor and privilege to testify before you today on
some significant concerns that my constituents have in regard
to the Clean Water Restoration Act of 2007. I would like to
thank Congressman Larsen for graciously working with the people
of Skagit County to provide us with this opportunity.
I hail from one of the richest agricultural valleys in the
Western Hemisphere, nestled between the alpine mountains of the
North Cascades and the crystal clear seas of Puget Sound. The
Skagit River is the longest river draining into Puget Sound and
is home to all five species of Pacific Salmon as well as
steelhead and bull trout. We have four other rivers and
hundreds of tributaries.
As a fourth generation Skagit County farmer, my great
grandfather settled on the pristine banks of Fidalgo Bay in the
1950s, where my family resides to this day. We have great
respect for the land and the waters of our beautiful county.
Although we were experiencing significant pressures of
growth from the north to Vancouver, BC, and from the south to
Seattle, Washington, the strength of our agriculturally-based
economy has motivated our citizens to be good stewards of that
land. We harvest the finest red potatoes in the world, produce
hundreds of acres of stunning world famous tulips, provide a
significant portion of cabbage and other kohlrabi crop seeds
for the entire world as well as being on the cutting edge of
production for blueberries, strawberries and raspberries.
Other Puget Sound counties have sat back and watched their
farmland disappear. Working with farm families and advocacy
groups, we have worked hard to keep agriculture viable. We have
protected more than 5,000 of our 90,000 acres of fertile
farmland from future development with our Farmland Legacy
Program which allows us to purchase conservation easements,
protecting our open spaces and productive farmlands for
eternity. County taxpayers voted to impose this tax on
themselves. We allow only one farm home every 40 acres of ag
land.
Our bays and estuaries support more than 93 percent of the
overwintering waterfowl in western Washington including the
Western High Arctic goose, Trumpeter swans, black brant plus
many other species.
In 1995, the county commissioners created the Clean Water
Shellfish Protection District to clean up our saltwater bays
for shellfish harvests.
In 2004, we instructed our health department to work with
rural property owners to form community councils in problem
areas and, with our expertise in State grants and Federal
grants, replaced the faulty septic systems.
County departments consider salmon recovery in all of our
actions and pursue grant funding for salmon enhancements.
Today, we tax our citizens to monitor water quality and
habitat, administrative lake districts, enforce water quality
compliance and operate onsite sewage programs. We work hand in
hand with other organizations such as conservation districts,
fisheries enhancements, watershed councils and local tribes to
ensure our water is clean.
So, with that being said, why am I, Don Munks from Skagit
County, here today to testify against Clean Water Restoration
Act of 2007?
It is obvious that fellow commissioners and I, along with
thousands of community members, are strong advocates of clean
water and are willing to tax ourselves to back up our values.
Our main concern is that the bill proposes the word,
navigable, to be eliminated from the definition of waters of
the U.S. in the Clean Water Act. This would effectively put all
bodies of water or perceived bodies of water under Federal
jurisdiction, even those waters currently under State
authority.
Let me liken this crisis to a national emergency due to a
natural disaster. History has shown that those communities that
wait for Federal intervention suffer devastating loss. While
many pointed their finger at FEMA in the Katrina disaster, the
real disaster was in the inability of the first responders at
the local level to react.
In regard to clean water, we are the first and best
responders and have been very productive. By removing our
ability to be first responders and saddling us with a
cumbersome permitting process, we would be faced with a huge
impact that may require a Clean Water Act permit for routine
tasks. Requiring Clean Water Act permit for gutters, driveways,
driveway cultures, agricultural ditches, farm ponds and
roadside ditches would dramatically increase the time required
to process permits and create a backlog of projects for the
Corps to add to an already significant backlog.
Annually, hundreds of small projects currently being
completed by county forces and moderate permit requirements
would require a permit from the Corps. In addition, private
property owners currently able to construct would be required
to obtain a Corps permit. Not only does this greatly increase
the permit applications required, but it adds additional
burdens to the Corps to process the thousands of additional
permits they will receive every year.
Many of these projects have short allowed construction
windows due to salmon spawning. The increased length of time to
obtain permits will often result in the project being deferred
until the next year to enable construction during the fish
window. During the delay, the need for the project that
promotes clean water continues or increases. We will miss grant
deadlines and be burdened with additional staff time.
The intent of your bill is fine. We all want clean water.
But by dramatically expanding the jurisdiction of the Corps of
Engineers, you will stymie the efforts of Skagit County, our
dike and drainage districts and our advocacy and resources
groups to continue work toward a common goal.
We ask you for the opportunity to continue to be first
responders for clean water by not saddling us with additional
bureaucracy. As we help you on the ground make our water
cleaner and healthier, please help us with legislation that is
clear and simplifies our permitting process.
Thank you.
Mr. Oberstar. Thank you very much for your testimony and
for the concerns you have raised, and let me begin there.
You said the legislation would cost additional money and
create delays and complexity. In fact, without action, counties
all over the Country and especially in my own congressional
district have said it is costing them millions of dollars and
additional personnel they have to hire, delays, paperwork to
comply with this confusing complexity of post-Rapanos and
SWANCC decisions and the regulatory guidance issued by both the
Corps and the EPA. They and many others have appealed for
clarity.
So the bill I introduced was to establish clarity.
As you and Commissioner Cope are concerned, if removing the
term, navigable, from the Clean Water Act would create
additional concerns or confusion for you, if we leave it in and
attach to it the regulatory regime prior to the two Supreme
Court decisions, do you have a problem with that?
Mr. Cope. My question, Mr. Chairman, would be which
regulatory regime?
We have seen, over the 20 years leading up to this Rapanos
decision a change, in your jurisdiction authority. I think it
wasn't so much that the Corps misread the original intent as
they just gradually expanded their authority a little farther,
a little farther until finally it reached the point that
somebody pushed back, and it was the Solid Waste Authority of
Northern Cook County.
Mr. Oberstar. Well, in this Committee in 1977, we addressed
the concerns arising out of the Corps' vast expansion, which we
thought was an overreach in implementing 404. In 1977, right
here in this Committee room, we limited the scope and directed
the Corps, as they have done from 1977 through 2001, to follow
a much more specific regulatory regime.
So I have referenced it to the previous panel, the EPA and
Corps panel earlier today. Waters of the United States and
waters of the U.S. means--these are words drawn from the Corps
regulations prior to the Rapanos and SWANCC decisions--``All
waters currently used or were used in the past or may be
susceptible to use in interstate or foreign commerce, including
waters subject to the ebb and flow of the tide; all interstate
waters including interstate wetlands; all waters such as
intrastate lakes, rivers, streams, including intermittent
streams.''
These are words from the regulatory scheme of the Corps of
Engineers and of EPA. If we include, by reference, those
provisions that were intended to be covered in the savings
clause that I included in the introduced bill, Mr. Grumbles and
Secretary Woodley said they thought that would be acceptable.
So the provisions of the bill that I introduced say nothing
in the Act will be construed as affecting the Secretary of the
Army or the Administrator of EPA under the following
provisions, and there are eight listed, eight categories.
So, all right, if eliminating the term, navigable, causes
people a lot of heartburn and regulatory uncertainty, let's put
it back in but retain the regulatory certainty of the existence
of those regulations prior to the Supreme Court decisions.
Mr. Cope. I think if that were defined to where we can
really have a good boundary on where those limits sit, I think
we can deal with that.
Mr. Oberstar. They are going to come back to the Committee
and be specific about that.
Mr. Cope. The key to the problem we have had with that
particular language is we see what it includes, but the
boundaries are so wide, we are not real sure that there is
anything exempted according to that language.
So we would like to see some definitions. As I say,
navigability I think could be better defined. I think we can
make it work.
Mr. Oberstar. But on the other hand, your State is one of
those 25 States that has prohibited itself from establishing
regulatory regime more stringent than that of the Federal
Government.
Mr. Cope. That is true, but we also have a very effective
Department of Environmental Quality that works very closely
with the health districts and with the counties, and it works
rather well.
Mr. Oberstar. You cited that in your testimony, but I just
want to point that out.
Mr. Munks. Mr. Chairman?
Mr. Oberstar. Yes.
Mr. Munks. You had asked the question. Could I answer it
too, please?
Mr. Oberstar. Sure.
Mr. Munks. I don't disagree with what you are wanting to
do, and I applaud you for wanting to put the word, navigable,
back in.
I think that what Mr. Cope said was very accurate. We want
clarification of jurisdiction. We have spent a number of years
defining what the jurisdiction is between the Federal
Government and their agencies, the State Government and their
agencies, and local government, whether it is counties or
cities and how we all act together.
The State of Washington has been very progressive in
everything they do. We have a tremendous amount of regulation,
and we have a requirement that sets a minimum but allows us to
do anything above that that we want to put in place. So we
have, over the years, developed what it is we are going to do,
how it is we are going to do it to protect these waterways that
we have.
It is very difficult to protect them especially with the
interaction, as Supervisor Hulsey said. We have a lot of
flooding, maybe the worst flooding areas as a whole in the
Country, but we have mountain to sea.
It is all a watershed, and we have a lot of area that is
regulated by the Federal Government. It is off limits to do
anything to avoid the flooding. And so, as we deal with that
flooding and the aftermath of the water after that flooding, we
are continually cleaning up.
We have tremendous growth that we are trying to take care
of, more in what I call the metropolis area. That is to the
south. That is in Congressman Larsen's area.
But we have been imposing upon ourselves a lot of
regulation. So putting navigable back in, as you said you were
open to do, clarifying some of the jurisdictional issues and
the definitions of what it is we are going to get accomplished.
We work very well with the Corps, but the Corps in my
district is different with definition than the Corps in
Commissioner Cope's district and is different than almost every
district in the United States. So we have kind of morphed into
this interaction of how we permit process and how we get things
done.
Mr. Oberstar. Thank you for that expansion.
As I say, I am open to discussion of the subject. I want to
get us back to pre-SWANCC and Rapanos, pre-Kennedy test, pre-
Scalia test, and to eliminate, confusion to the Corps, the EPA
and to local interests and State interests.
I want to restore the purpose of the Clean Water Act which
I understand very clearly. However, we get there, I want to do
that. So we are having this discussion.
Mrs. Drake.
Mrs. Drake. Thank you, Mr. Chairman, and again thank you
all for being here.
I think I want to start with Mr. Cope and Mr. Munks. I did
hear you say, and I appreciate your saying it, that you think
we need much better clarification and definition in the bill
that is being proposed. But other than defining better,
navigable waters, with the existing Clean Water Act, do you
think it needs to be better defined?
I know you have said you worked with it over the years and
things have changed. Can you tell us, with what you have been
working with now, since these two Supreme Court hearings, do we
need a better definition of that or not?
Mr. Cope. I am going to defer most of this to Mr. Munks
because my county is 92 percent Federal land, and basically
everything is a 404 or a 402 stream. So, as far as exactly what
is and is not included within the Clean Water Act, I am not
horribly familiar.
I can only tell you theoretically, from what I understand,
irrigation-induced wetlands are exempt and they never are in
our county.
With that, I will turn it over to Don.
Mrs. Drake. Mr. Munks did make an interesting point of
people feel there are different sets of rules based on which
Army Corps district you are in, and I am sorry Secretary
Woodley wasn't here to hear that because I have told him that.
I have heard that form people in adjoining States to us as well
when my constituents are working across State lines.
Mr. Munks. Congresswoman, I appreciate the question because
it kind of brings up what we are dealing with in the State of
Washington. Understand, the State of Washington is split in
half. There is a west side and an east side, and the water
situation is completely different.
On one side, we are inundated with water, record snowfalls.
Lots of water comes down all of the rivers and follows up the
tributaries on the west side. Now, on the east side, they are
putting the water on the ground and creating their wetlands and
their wet areas that they have to deal with.
So it is kind of different on each side, but we have over
the years put together a jurisdictional coalition between what
the Corps will regulate through the 404 process and an
expedited process that we go through that isn't as onerous as
the 404 depending on what the project. That is in conjunction
with the State Department of Ecology.
And so, as a local county, when we have a project to do, if
it is something that we are going to have to do with the Corps,
we go directly to the Corps and they solicit from the State
Department of Ecology, and Fish and Wildlife comment, and from
the Federal agencies as well.
But otherwise, with all other aspects of what we want to
permit, we go to Fish and Wildlife, our State Fish and
Wildlife, we go to our State Department of Ecology, and we put
out to the tribes what it is that we are wanting to do. Now, in
Skagit County, we have four tribes that we deal with.
With their issues, with salmon, ESA issues, the process
should be very onerous, but we have simplified it with these
understandings of how we are going to cooperate together and
who has what jurisdiction. That is kind of what we are afraid
that we are going to lose, the years of cooperation that have
been established and what may change from that.
Now I very much am an advocate for clean water. That is
something that is very important to me, and I chair the Water
Quality Committee for the National Association of Counties. But
we know that we want to keep a process in line or if it is
changed at the Federal level, quickly establish what the bottom
line in that legislation is so we can quickly adapt what we are
doing, so we don't lose this opportunity.
In our area, we have a very narrow fish passage window that
we can work in water, and if we miss it, we lose our grants. If
we miss it, we lose that year. If we miss it, we have flooding.
Mr. Hulsey. Representative Drake?
Mrs. Drake. I just wanted to ask the two of you something a
little different.
Mr. Hulsey. Can I follow up on that one real quick?
Mrs. Drake. Just a minute. Let me get this out.
That is you have heard the testimony about some people
wanting all waters to be Federal waters. You have heard the
concern that waters would be considered Federal waters. I just
wondered, with both you and Ms. Jacobs, if you have a concern
if all water was considered Federal water, if that wouldn't
have an impact on your counties and decisions that you
currently make today becoming Federal decisions?
Mr. Hulsey. We have a unique situation in Wisconsin. We are
the first and only State to fill the SWANCC loophole after it
passed. It was a bipartisan measure signed by a Republican
governor.
So, as far as the isolated wetland issue goes, our State
has stepped in, and I think it actually shows a good model for
what Congressman Oberstar is trying to accomplish for the whole
Country because we have not seen major disruptions in our 404
process. Our counties still don't need permits for ditch
maintenance. We never did. Our large ditches, if we do need a
permit, if they do drain to a navigable water, then we get a
general permit.
Mrs. Drake. Would you agree that this bill might need
better clarifications and definitions like Ms. Jacobs said in
order to be really comfortable that it wouldn't do sort of an
unintended consequence?
Mr. Hulsey. Our DNR water experts who--again, we filled the
loophole once, so we probably know more than anybody else about
it--support the bill as written. Our governor supports because
he says, why should Wisconsin be the only State?
Some people say, well, let the States do it. You have State
waters. You have national waters.
When I go to visit my 70 year old mother in Oklahoma, I
want to know there isn't some feed lot dumping pathogens into
Lake Hefner, the source of her drinking water. I want to know
that her home isn't at risk of flooding because of upstream
uncontrolled wetland destruction. So that is why we need a
Federal bill.
I am fine with the bill the way it is written right now,
but if navigable waters with the exploration of activities
makes others more comfortable, that is fine.
The point is when you see those flood pictures before, many
of those don't qualify as wetlands because they are under water
in April. They are dried out by the growing season in June.
So I am not sure. While I appreciate getting back to where
we are is a good start, we are spending millions and billions
of dollars to move people out of places that they got a wetland
permit to build their house in.
I was sorry that the Member from North Carolina left here,
but the Member from Washington, I looked at the wetland permits
in these high flood, high hazard counties, and typically the
Corps grants 90 to 100 percent of those permits to build in
places that are going to be flooded and bought out 10 or 20
years later. I mean there is compelling national reason for you
to have the strongest possible regulation because you and we
are going to have to pay to clean up the mess.
Mrs. Drake. Ms. Jacobs, did you want to add something
quickly? I know we have other questions.
Ms. Jacobs. Just quickly because Commissioner Hulsey said
much of what I wanted to say, and that is that the intent of
this bill is to get us back to where we were. Our county has
built out from north to south, east to west, under the existing
Clean Water Act with 1,800 linear miles of canals and multiple
water bodies. We are good shape, and we did it all working with
the Corps.
The biggest concern is we are now in a redevelopment mode,
and we are getting more dense. We expect almost another million
people in the next 20 years. So redevelopment, even in these
economically depressed times, is still going on in Broward
County.
I have land use attorneys that are telling me the first
thing they are going to do since the Rapanos is go check their
malpractice insurance because they don't know how to weigh in.
They don't know what to tell their clients about whether or not
they need a permit.
So the economic stimulus that will occur by making the
clarifications necessary with this bill are really important to
Broward County on top of the fact that we believe there are
substantial water bodies that would be removed from the State's
calculation for grants. If those are removed, our State would
not receive the amount of Federal dollars it does now for Clean
Water Act funding, and that would roll downhill and, of course,
affect our counties--so, clarification of the bill.
The reason why: I think there is room between what concerns
of other areas of the country are having over language. What I
keep hearing throughout the day, as Congress has said
repeatedly, is that we are basically on the same page. We just
have some discrepancy over the wording to get us there, and I
think we can find that language change, and I am hoping that we
do.
Mrs. Drake. That is what I have heard from everyone all
day. They want the clarification. They want it more simple, but
they want to understand what the language means, and there is a
lot of concern about what the language means.
Ms. Jacobs. The only thing I would say about that is that I
do believe that there are lots of folks, and some may be in
this room and some are not, and some may be in that stack of
papers that was demonstrated today, that would love to see a
rollback of the Clean Water Act. They are not eager to see it
is proposed now, and they are throwing out red herrings.
So, when we talk about language and our willingness to
discuss language, I want to make it clear that we want true
discussions that are valuable to the point and not red herrings
that are raising concerns such as by some of the groups. Here
is a picture of a ditch at the edge of a road, a gutter
basically, and the headline says: No Boats Needed: New Clean
Water Bill Would Make Gutters Waters of the U.S. Well, this
simply isn't true.
Mrs. Drake. Ms. Jacobs, I have been in two hearings on this
issue, and I have not heard that.
Ms. Jacobs. Well, here it is.
Mrs. Drake. What I hear from people is they are very
anxious to protect our water, to not have our properties
flooding, but they want to make sure that they are not
unraveling the universe, as Congressman Rahall said earlier
today.
So, thank you very much. I will yield back, Mr. Chairman.
Mr. Oberstar. We are not going to unravel the universe, and
we are not going to unravel the Clean Water Act. That is for
sure.
We are going to clarify and strengthen and make sure that
we return to the pre-Rapanos decision.
Mr. Larsen.
Mr. Larsen. Thank you, Mr. Chairman. Again, Mr. Chairman, I
want to thank you for this hearing today and thank you for
accommodating us in the Pacific Northwest.
Mr. Baird and Mr. DeFazio and I, last year, got together
and talked about who we could invite to this hearing and
collectively decided that Commissioner Munks would be the ideal
person. He doesn't believe it, but we all do. I think it is
important to know that Commissioner Munks' comments really do
come from not only with his heart in Skagit County but somebody
who has had to work through these problems.
I may have one question here, but I think the point that we
wanted to make out of the Pacific Northwest is that there is a
west side of the States, Washington and Oregon, which is also
the wet side of the States in Washington and Oregon, and we get
a lot of water. It is all relative, but in a relatively small
place. It hits the Cascades, and it comes back at us.
On top of that, we have--Don mentioned--the fish window.
The Federal Government has listed the Puget Sound chinook and
the bull trout as endangered or threatened species. So we are
dealing with that on top of a lot of other regulations, some of
which we have adopted ourselves, our growth management act.
The concern you hear is one more set of uncertainties as a
result of not just the SWANCC and Rapanos decisions but the
current language of the proposed legislation. That is what you
are hearing coming out the Pacific Northwest.
So to hear you, Mr. Chairman, say that you are open to, I
think you used the word, adaptations is heartening for us. We
are looking forward to working with you on that.
I think another thing I also heard today, though, is for
those calling for the passage of H.R. 2421 as is. It may not be
as simple as doing that since we have heard from attorneys on
both side the issue. We have heard from counties on both sides
of the issue. We are probably going to hear from agriculture on
both sides of the issue. We heard from the agencies having a
set of concerns as well. So we have plenty more work to do.
I think you are going to get a commitment from us to work
and try to get to a solution. We won't be guaranteeing that we
are all going to agree, but certainly this hearing itself has
given us a lot to work on.
I will just conclude with a question for Commissioner
Munks, a question of ditches. When I hear people don't have to
get permits for ditches, I want to move there, frankly. Can you
give us a little bit of experience about tide gates and ditches
where we come from?
Mr. Munks. It is interesting where we come from because the
first settlers that came there saw that the most fertile ground
was the land that was under water part of the day, and the
tides went out, and it was open. So it was full of silt, some
of the richest land you are going to find.
So what they did is they established dikes, built drainage
canals, build drainage ditches, put tide gates on it to now
allow the saltwater to come back in on it, drained it off and,
over a period of years, finally got to the point where they
could grow just about any crop they want. So they are very
adamant about keeping that saltwater off of it.
Now, as Congressman Larsen said, from the west end of
Skagit County where we get normally about 40 inches of rain a
year to the east end where we get about 120 inches of rain a
year, where we wind up in the mountains and we get some of the
largest snowfalls of anywhere in the world, water is an issue.
It is a problem.
How we get that water from the mountain to the ocean is
critical. All the cities established on these rivers because
they were navigable passageways when the county was first
established. So we have all of our build-up or the majority of
our build-up of population is along the rivers.
These drainage ditches and what they perform to keep the
water off of the land also worked to help us with fish
restoration projects. They allow us to create an area from
where these smolts and fry are developing before they go out to
the saltwater. As we worked through these various avenues of
these tide gates and everything else, we have ourselves put in
what we call self-regulating tide gates which do allow for
these young salmon to come and go into the saltwater, but it is
still the draining of the land that is most important.
Now for every process we go through, as a county, as a
commissioner talking to my staff, we take a look first off at
what is the impact going to be to fish and what is the impact
going to be to the quality of the water, and we monitor that
quality.
So when we replace a culvert, when we work in the ditches,
we do it at times of year where we are going to have the least
amount of impact on that species. It is a very onerous process
that costs us a lot of extra money, but we do it to ourselves.
We work with our State agency, Fish and Wildlife and with the
Department of Ecology and the tribes to do those projects, and
we thank you very much for the money you give us to help do
that too. It is extremely important.
We are a little bit different where we are, but we have put
all kinds of standards on our ourselves in the State of
Washington, and Oregon does the same thing.
So I think it is important to understand that, from me, the
Federal Government is to establish what is going to be the law
and then, from there, establish what authority you are going to
give to States and local governments because it is us on the
ground level that are dealing with doing the projects and
creating the fixes from all the people that are moving into our
area. That is very onerous.
Mr. Oberstar. Thank you. Thank you for your very thoughtful
presentation. It just underscores the wide differences that we
have throughout these United States. By crafting the Clean
Water Act, we established the Federal-State partnership under
which there was a floor of certainty and of continuity.
Mr. Salazar.
Mr. Salazar. Thank you, Mr. Chairman.
Just a brief comment, I really enjoyed your comments,
Commissioner Cope and Commissioner Munks.
I think what we are looking at is really a Country that has
different water laws throughout the Country. In the western
States, we have, I guess in some areas, plenty of water. But in
Colorado and Idaho and many areas, we are very sparsely
populated States with some water and most of it goes for
irrigation.
Your comment, Mr. Chairman, on some States, and I don't
know if Colorado is one of the States that has a lesser of
water standards, but we don't have quite the demand, that you
do back here in the East where it is heavily populated, on
water quality issues.
May I make the suggestion? I understand that all of us are
here for clarification. It seems like everybody wants good,
clear clarification.
We want less litigation. I mean I am all for that. Colorado
has the largest per capita water attorneys of any State in the
Country.
Maybe your suggestion as to what clarification means to you
would be a good thing.
Mr. Chairman, would you accept maybe a list of what they
would like to see in the clarification?
Mr. Oberstar. It is pretty much the same issues I have
charged previous panels with clarifying or explaining, starting
with Mr. Woodley and the Corps of Engineers and Mr. Grumbles
for the EPA and the Justice Department, to be clear on what you
mean about the categories of categorical exemptions that exist
in the Clean Water Act and how we transfer those forward into
this language.
If, as an option--instead of, as my introduced bill does,
deleting the word, navigable--if we retain the word, navigable,
and accompany that term with prior existing regulatory
structure of the Corps and of EPA in the several categories
that I have already spelled out, give us your take on language
to be sure that we are being very clear about the application
of those terms.
If we state in future legislation the term, prior converted
farmland, what clarifications are needed? What definition of
prior converted farmland is needed to be sure that we don't
establish a new term that creates additional regulatory
confusion?
There is a body of regulatory management of that term. Give
us your language about that clarification.
Mr. Hulsey. Mr. Chair, a quick point on that, we are the
number one farming county in Wisconsin. What we are seeing
occasionally is farmers using prior converted to drain the
lands--that is fine--but then selling that for development. So
we do need a backstop in there to make sure that that land
isn't then rolled over and is immediately flood-prone.
Mr. Oberstar. Once farmland is no longer farmland, it no
longer enjoys the exemption. That is clear in already existing
practice.
Mr. Hulsey. But there are many attempts to move forward
without that because it, many times, doesn't meet the
hydrologic qualifications for a wetlands.
Mr. Oberstar. The purpose of the language back in 1972 was
to protect farmers, give farmers certainty about managing their
land, and that is the way that provision has been managed all
throughout these years.
Subsequently to enactment of the Clean Water Act, the term,
prior converted farmland, came into use in pursuance of the
agricultural exemption: normal farming, silvicultural and
ranching activities, agricultural return flows, maintenance and
construction of farm or stock ponds, irrigation ditches,
maintenance of drainage ditches, maintenance of farm roads,
forestry road, et cetera.
Those are specific references in the Clean Water Act that
apply to the term, prior converted farmland. Once it is no
longer farmland, those exemptions don't pertain.
Mr. Salazar. Well, Mr. Chairman, reclaiming the time that I
don't have left, I would just like Mr. Cope to respond to that
suggestion if you don't mind.
Mr. Oberstar. No, no. No time comes out of your allotment.
Mr. Cope. Thank you, Mr. Salazar.
What I would like to point out is after the debate we had
at the NACO conference last summer, NACO formed a task force
comprised of two members from each of several committees and
boards who have been participating by conference call and face
to face meeting to try to come up with suggestions to do
exactly what you are asking us to do. That work has been in
progress for several months now. Still, we have a ways to go,
but we are working on that.
As we speak, there are people who are trying to come up
with ideas to help clarify and improve the function of the
Clean Water Act.
Mr. Salazar. I yield back, Mr. Chairman.
Mr. Oberstar. Mrs. Napolitano?
Mrs. Napolitano. Thank you, Mr. Chair, and I am sorry I
haven't been here to listen to most of it, but I was chairing
my own Subcommittee hearing on water today, Indian water
rights.
I have some questions that might have already been
addressed, but one of them is how is the Act affecting water
supplies as they implement more recycling and reuse programs in
order to address decreasing amounts of water they are receiving
from rivers, lakes and other traditional sources?
That is a big concern of ours in our Subcommittee. It is
going to be affecting a lot. You don't have any worry because
you have a lot of water, you have a lot of rainfall. But some
of those in the arid west, we have to start thinking about that
impact.
Mr. Cope. Truthfully, ma'am, we have very little effect on
water supply and recycle from the Clean Water Act.
It is ESA that affects us because they want more instream
flow for migrating salmon and for bull trout, and they have
replaced a lot of our old flood irrigation with sprinkler
systems which has actually decreased the recharge. So we are
compounding the problem by jumping to conclusions that may well
constitute a temporary stop-gap solution but, in the long run,
may be harmful.
But these aren't Clean Water Act actions, so I can't really
address at that. We are so short of water, we would very much
appreciate it if western Washington and Oregon would send some
of that water on to us.
Mrs. Napolitano. So would we in California.
Ms. Jacobs. Well, as a native of California, I was born and
raised in San Diego and moved to Florida when I grew up.
Looking for another sunny place to move to when I was young,
there was really only one choice.
The water issues that we faced in California are very
similar to those which we face in Broward County. In fact, when
I joined the commission 10 years ago and went to my first water
advisory board meeting, I was stunned to sit there and hear
folks saying, wringing their hands, where can we find more
water?
I kept thinking we need to better use the water that we
have because at 60 inches a year we are getting all that we
need. It is that we are just not conserving it properly.
So there are many programs that are my pet projects that we
are really excited to talk about them. Today is not the time,
but I am happy to share with you some of the national models
that Broward County has set up and most recently in dealing
with the issues of reuse, saltwater intrusion which is moving
in and, of course, seepage from the Everglades into Broward
County because it sits lower than the Everglades lands.
With so many miles of canal systems, 31 cities and 28 water
utilities in one regional government, it has been a herculean
effort to try to draw them all to the same page. The State
Legislature actually has a bill that has passed the Senate and
it is moving through the House right now. It is a bill that
will cause Broward County to spend upwards of $800 million
within the next 15 years to build a plant for 1 of the 28, to
build a plant that will deal with reuse.
The problem for Broward County is that with so many canal
systems, we are in a very sensitive environment where you have
a three-tiered coral reef system, the nearshore environment
where, with 1,800 miles of canals, you can imagine the runoff
would impact the coral reef system or the backpumping into the
Everglades which, of course, is being cost-shared with the
Federal Government to clean it up because of nutrient
overloading.
So we are pursuing efforts with the State to try to be a
little more reasonable with the ways in which we can use reuse.
It is an important part of going forward for our county but
most importantly is finding the grant funds to build these very
expensive plants and try to draw all of these different cities
and our sister counties, both Miami-Dade to the South and Palm
Beach County to the north, into joint efforts to build
treatment plants such as Tampa's desalinization plant that was,
of course, cost-shared by its water management district. We
don't enjoy that, but we are moving forward.
Mrs. Napolitano. But you do see that that might affect some
of the water suppliers because of the lesser water?
Ms. Jacobs. You mean as far as the bill? No, I don't. I
believe, we believe that the bill, as it is currently
structured, does not take away from the State's existing powers
and works with them.
Our position today is that there seems to be those who
believe that, and we think that language clarification will
pull us to the same side.
Mrs. Napolitano. That is what I was trying to get to is
that it does not affect.
Mr. Hulsey. But the biggest challenge is the 402 section
that allows dischargers to discharge to ephemeral streams and
headwaters. There are 400 of those permits in Wisconsin. So you
could conceivably have a slaughterhouse putting deadly
pathogens into a ditch that was ephemeral, making up all of
that, and then that would be the water source of someone
downstream. A hundred and ten million Americans get their water
out of headwater streams.
Another concern is we are seeing drawdown even from
groundwater. Even a place that gets 40 inches of rain a year,
our groundwater drawdown is such that we are starting to have
seepage in from the lakes into our groundwater supply. We don't
want that to happen because we have 130,000 dairy cattle. We
still have a few cows in Wisconsin.
But as a Great Lakes State, I should tell you that you are
welcome to all of our water as long as it is 12 ounce cans.
Mrs. Napolitano. I hear you.
Well, I thoroughly support this bill that Chairman Oberstar
has put through and thank him for working with some of my
individual water provider to addressing some of the concerns
that they brought forth on wastewater treatment because they
were concerned that that would affect them adversely.
I know he is willing to work with us, so I have no problem
bringing some of the issues that my folks in my area in Los
Angeles County and the rest of the State, for that matter, have
in regard to recycle, reuse, storage and all those waters.
I am just wanting to ensure that whatever loopholes they
are talking about, that they are not allowed to continue, that
we continue to provide clean water for everybody. Somehow there
has to be a way to change it, to close the loopholes so that
the attorneys are not the ones that benefit but the people
benefit.
Thank you, Mr. Chair. I yield back.
Mr. Oberstar. Ms. Hirono.
Ms. Hirono. Thank you, Mr. Chair.
One of the major concerns is that after the SWANCC and
Rapanos decisions, that there were waters and activities that
had come under the CWA jurisdiction would no longer be covered,
and therefore the States would have to step in to fill in the
gap. I heard Mr. Hulsey say that Wisconsin is one State that
had stepped after the SWANCC decision to fill in the gap. It
seems as though Washington State had also done that and Idaho,
and I commend your States for doing that.
My question is, do you know if all of the other States have
the regulatory framework and resources in place to fill in the
gaps as your States have?
Mr. Hulsey. I would just say, from Wisconsin, I don't
believe so. I have worked in about 40 States in doing different
flood reports and other efforts, and there is a huge
variability of staff, huge variability. Some States have 401.
Some don't.
Obviously Florida and the State of Washington; I believe
Michigan has addressed some of these issues. Minnesota,
Indiana, Ohio have addressed parts of it, but they haven't done
the full SWANCC fix, and I don't believe anybody has done the
full Rapanos fix yet.
Ms. Jacobs. Speaking just for Florida, we have not. There
are revenue estimators right now looking at Florida's budget,
estimating that we are $4 billion short for this year. The way
that they are finding those dollars is you would be surprised,
through the Environmental Protection Division and those dollars
in addition to other areas.
So, when we talk about resources and personnel resources
that are being scaled back, not just on the State level but
also on the county level, we have cut $100 million out of our
budget last year by amendment, one that was recently passed
through the actions of the State and reductions in property
values. We expect another $100 million to be taken out of our
budget.
Last year, we had to let over 200 employees go, and we are
looking at numbers that are twice that this year in our own
staff.
So, financial resources, personnel resources as a State and
a county are becoming ever in shorter supply, and I believe
that that gap is going to be reflected not just in the State of
Florida but is ultimately going to result in the uneven balance
of a standard of water quality nationwide, which is what the
Act intended to do.
Ms. Hirono. That says to me that we should have a sense of
urgency about making sure that the regulatory scheme is in
place to protect the people.
By the way, Ms. Jacobs, I am glad that you showed us that
picture of a ditch that some people are saying would be covered
under this bill as water, that that would be covered, because
those are the kinds of questions that have come to me also.
People are saying, well, is the puddle in my back yard going to
be covered? So, clearly, we need to get the information and
education out on what we are trying to do here.
Thank you. I yield back.
Mr. Oberstar. Mr. Hayes, the gentleman from North Carolina.
Mr. Hayes. Thank you, Mr. Chairman.
I heard from someone outside that Supervisor Hulsey was
sorry North Carolina was gone. Well, we are back. My wife is
from Wisconsin. They don't call it the Mad City for no good
reason.
Thank you all for being here.
Mr. Chairman, thank you for putting this together today.
I am not a lawyer, but I have seen them do it on
television. They say we are going to stipulate. Well, I am
going to stipulate that everybody here and back home wants
clean water. So we don't have to talk about that anymore, but
there are some very troubling issues.
This is a bill, in its present form, that I could not and
would not support. I have experience in farming, construction,
manufacturing, a whole host of things, and the folks that I
know best in my district would be devastated by the bill in its
present form. But, remember: Clean water, vitally important.
A very honest question--I will get the titles right--
Commissioner Jacobs, I was just in Broward and Palm Beach
Counties last week. I am a huge fan of the Everglades. Bass
fishing, I mean that is a big deal.
So my question to you is this bill in its present form is
drawn to greatly favor the Florida Everglades, watery States.
If this bill were closely drawn to reflect Nevada and Arizona
and places like that, would it be as popular to you?
I am kind of kidding you, but it is a serious question too.
Ms. Jacobs. I understand it is, and I have to respectfully
disagree that this bill treats the Clean Water Act today any
differently in its intent, I believe and so does our staff, our
attorneys and those who work not only for us but for the State
that have looked at this bill.
There may be some language changes that will help draw the
clarification on the issues that have been raised today, but
there are substantial areas where we think that they may find
that harmony in language, but overall we believe that this
bill, in its present form, closely mirrors the existing Clean
Water Act and the original intentions of Congress in addition
to the savings clauses that it picks up and mirrors within this
language.
Then, finally, I would say that when we talk about
language, there is a difference between what the Clean Water
Act originally said and the regulatory steps that have been put
in place by the EPA and the Corps. If it takes adopting those
standards that have been applied by the EPA and the Corps all
the way up to Rapanos, then let's mirror in the bill's Act, and
you get to the same place. That is where I think the difference
lies.
So I don't agree. Our county doesn't agree that it is
substantially different, but we think that language changes
will get us to where need to be.
Mr. Hayes. You made an important point, but you didn't
answer my question. If this were drawn to reflect Nevada or a
dry State, it would not work so well.
Back to the Corps, I think you mentioned the Corps. The
Corps in North Carolina is very active. We have a tremendous
number of wetlands and a whole host of issues. They have not
come to me and said that they want the Clean Water Bill revised
in its present form.
The only point being we didn't create the Corps, but we
create the regulations that they operate under. We did create
the EPA.
If you come to 435 of us to try to get your problem solved
so that it fits 50 States, history will tell you. How many of
you all have watched the program, John Adams, the series?
Ms. Jacobs. Every Sunday.
Mr. Hayes. Great series, but what I got from that and
related to this is those 13 at that point had very different
issues, very different ways of dealing with them, and the 10th
Amendment was dropped in there to make sure of the sovereignty
of the States. Taking in account the conscience of the people,
if you couldn't govern yourself, you couldn't govern the
Country, that was the way it worked best.
So, again, I appreciate the patience of all of you who have
been here and have not even come to the witnesses table yet,
but again I want to make the point for my constituents, that in
its present form it does not do what we want. It is very
harmful and the 10th Amendment.
Commissioner Cope?
Mr. Cope. I would like to comment on that also, and I
appreciate that comment, Congressman.
I have been a commissioner for better than seven years, but
I have been a cow veterinarian for over a third of a century. I
will tell you for a fact I learned more practical knowledge
about cattle from old ranchers at 3:00 in the morning in
calving barns than I ever did sitting in a university
classroom, listening to professors.
There is a tremendous amount of knowledge out there at the
local level that I very much fear, as I said earlier, we may be
bypassing by using a set of standards of one size fits all and
overriding the people that really know what the water is about
out there.
This is about water quality, and I am still a little
confused. I have been infected with just about every infectious
disease that cattle can pass on to humans with the exception of
tuberculosis. I am still trying to figure out exactly which
pathogens are coming out of the slaughterhouse. I have been
infected with cryptosporidium more times than I can count.
It is not a public health issue, and it is not a water
quality issue. As I said, it is about jurisdictional and about
local authority, and that is what the whole issue truly is.
I appreciate your bringing that up. Thank you.
Mr. Hayes. I am out of time. I think Commissioner Munks
would like to make a comment.
Mr. Munks. Just real quickly, a lot of what has been said,
I think that maybe the State of Washington does things a little
bit differently, but we heavily regulate what can and can't be
built in our State.
We would never allow slaughter facilities or any other
toxic facilities to dump straight into the water systems. They
have very strict requirements within our area for what can and
can't be done and how they have to contain runoff on their
entire property to process it before it can ever be released
into any body of water anywhere.
So, yes, I mean I think the one size doesn't fit all but,
Chairman Oberstar, I very much appreciate this hearing. I very
much appreciate your willingness to take a look at language
that could help resolve what the differences are between those
that are for, those that are opposed to because of most of it
comes down to language. Most of it comes down to the
definitions that are being put in it and how it affects the
jurisdiction of each of the entities.
So I very much appreciate the opportunity to be here.
Mr. Hayes. Mr. Chairman, I appreciate your comments about
crafting this to get the job done. We talk a lot up here about
one size fits all. The mental picture of that does not work
nearly as well for me as Commissioner Cope's spandex analogy.
If you have been by the gym lately, spandex doesn't work for
everybody.
Thank you, Mr. Chairman.
Mr. Oberstar. It depends on the body you are putting it on.
Mr. Hulsey. Sometimes it works better than Lycra.
[Laughter.]
Mr. Oberstar. I just want to make it clear to the gentleman
from North Carolina, the bill was not drafted in any way to
favor one part of the Country over another. In fact, governors
of water-short States, of Arizona, New Mexico and Montana,
support the bill in its introduced form.
But, as I have said, since there are concerns about the
application of the bill as introduced, we are having this
hearing to explore ways in which we can overcome those concerns
and achieve the purpose of protecting the clean water of this
Country.
Mr. Hayes. If I gave the impression that it was drawn for
one against the other, that was not my intention. But when you
draw for 50, it is hard to make every one fit like that
spandex. Thank you very much.
Mr. Hulsey. But the goals of the Clean Water Act, Mr.
Chair, water that is safe for swimming, beaches that are safe
for swimming, fish that are safe to eat, is one goal that does
fit all, and we are not there yet.
Mr. Hayes. And everybody agrees.
Mr. Oberstar. That is exactly it.
Mr. Bishop, you have been very patient, waiting over here.
Mr. Bishop. Mr. Chairman, I am very anxious to hear the
testimony of Mr. Tierney from the New York State DEC. So, in
the interest of time, I will pass.
Mr. Oberstar. The gentleman's gracious gesture is most
appreciated by the Chair and the remaining witnesses.
I want to thank this panel and invite your contribution to
the dialogue and further refining the provisions that I have
already laid out on the table. Thank you very much for your
contributions.
We are going to add to panel four, Alex Matthiessen,
President of the Hudson Riverkeeper, who has to leave here at
7:40. You are going to have to talk fast.
Ms. Joan Card, Director of the Water Quality Division of
the Arizona Department of Environmental Quality; Robert Trout,
Denver, Colorado from the Trout, Raley, Montano Law Firm; James
Tierney, Assistant Commissioner for Water Resources, New York
Department of Environmental Conservation; Mr. Mark Pifher,
Aurora Water Director, Aurora, Colorado.
We welcome you to the witness table and thank you very much
for participating with us this evening.
Mr. Matthiessen, we will begin with you.
TESTIMONY OF ALEX MATTHIESSEN, HUDSON RIVERKEEPER AND
PRESIDENT, RIVERKEEPER, INC.; JAMES M. TIERNEY, ASSISTANT
COMMISSIONER FOR WATER RESOURCES, NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION; JOAN CARD, DIRECTOR, WATER QUALITY
DIVISION, ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY; ROBERT
V. TROUT, TROUT, RALEY, MONTANO, WITWER AND FREEMAN, P.C.; MARK
PIFHER, DIRECTOR, AURORA WATER ON BEHALF OF THE NATIONAL
RESOURCES ASSOCIATION, THE WESTERN URBAN WATER COALITION AND
THE WESTERN COALITION OF ARID STATES
Mr. Matthiessen. Thank you, Mr. Chairman and Members of the
Committee for the opportunity to testify before you today.
My name is Alex Matthiessen. I am the Hudson Riverkeeper
and President of Riverkeeper, Inc., a New York environmental
organization that, for more than three decades, has principally
depended on the Clean Water Act to protect the Hudson River,
its tributaries and the New York City drinking water supply
which serves over nine million people, half the State's
population.
The Hudson is an internationally-heralded model for
waterway restoration, and it is largely because of the Clean
Water Act and the ability that groups like ours have had to use
it to protect the State's waters.
I appear before you today on behalf of the Waterkeeper
Alliance, a coalition of over 100 waterkeeper programs across
the Nation, all working to protect their local rivers, bays,
sounds, lakes and estuaries.
In my testimony, I will briefly address the negative impact
that the SWANCC and Rapanos decisions have already had on New
York's water resources which is the basis for our strong
support for passage of the Clean Water Restoration Act.
By enacting CWRA, Congress simply would be reaffirming a
prior Congress' intent to protect our Nation's extensive and
interconnected water resources from pollution and degradation.
This legislation is of utmost importance if this Nation ever
hopes to fulfill Congress' original promise of eliminating
pollution from our Nation's waters, a goal we have missed by 22
years to date and, sadly, are still many years away from
achieving.
Previous witnesses have chronicled for you the current and
still largely impaired state of our Nation's waters today and
the deleterious impact that the SWANCC and Rapanos decisions
have rendered and will continue to render on them. I will focus
on the State of New York's waters and the challenges we face in
trying to protect and restore them, challenges now greatly
exacerbated by these ill-advised Supreme Court decisions.
In New York, approximately 37 percent of the State's river
miles and 77 percent of the State's lakes, including the Great
Lakes, are impaired. Additionally, the fish in 41 percent of
New York's waters are not safe to eat, and New York's wetlands
are disappearing fast.
An estimated 60 percent of New York's original wetland
acreage has been lost to development. The pollution filtration
and aquifer recharge provided by the region's wetlands is
extremely important to ensure the delivery of safe drinking
water to nearly half the State's resident population. Close to
40 percent of New York's remaining wetlands are located at the
headwaters of the Hudson River and its tributaries.
Representing a combined 16,000 square mile area, these
headwaters feed New York's Hudson River watershed and New York
City's drinking water watershed which provides over 1.5 billion
gallons of prizewinning unfiltered drinking water to over 10
million people each day. But these watershed areas are
vulnerable because they are inundated with isolated wetlands
and ephemeral streams, water resources that no longer enjoy
clear protection in a post-SWANCC and Rapanos world.
Allow me to give you just two examples of the Corps'
arbitrary, inconsistent and legally erroneous no jurisdiction
determinations subsequent to SWANCC and Rapanos.
The Lysander wetland, a 19-acre freshwater wetland located
in Lysander, New York in Onondaga County, represents an
excellent illustration. In 2001, when local residents realized
that plans were underway to fill the Lysander wetland and
construct housing on the site, they presented the Corps with a
1957 and 1962 map of the area. These maps depicted a brook that
had been channeled underneath their adjacent subdivision, and
it flowed from the Lysander wetland into the Seneca River, a
navigable water of the United States.
Ignoring this information, the Corps issued a no
jurisdiction determination in 2003, stating that the site at
issue was an isolated wetland. When the homeowners subsequently
pressed the Corps to reconsider, the Corps explained that the
Buffalo District, as a matter of post-SWANCC legal
interpretation, no longer considered hydrological connections
to navigable waters through manmade water conveyances
sufficient for establishing Clean Water Act jurisdiction.
The homeowners took the case to the New York State Attorney
General's Office. After conducting its own investigation, the
attorney general filed a notice of intent to sue the Corps and
EPA in November 2004.
In response to this legal challenge, the EPA ultimately
reversed the Corps' decision. The citizens ultimately prevailed
but at enormous cost and waste of time and taxpayer dollars.
The Annsville Creek wetland provided another alarming
illustration of the Corps' inability to effectively protect
wetlands, post-Rapanos. In October, 2007, the Corps found that
a wetland in Peekskill, New York was isolated and non-
jurisdictional despite being only 50 feet away from Annsville
Creek, a tributary of the Hudson River, flowing south out of
the highlands into Peekskill Bay.
Despite acknowledging that the wetland is situation on top
of a former landfill and may be contributing to the pollution
of Annsville Creek, the Corps determined that its hydrological
connection to the creek through a swale feature was
nonjurisdictional. The Corps purportedly found it significant
that water only flows from the wetland to Annsville Creek and
not in the other direction.
The Corps also determined that the wetland lacked a
significant nexus to an intermittent stream that directly flows
into the Annsville Creek despite substantial evidence to the
contrary.
Both of these cases illustrate the myriad problems created
by arbitrary and legally flawed Corps' jurisdictional
determinations, post-SWANCC and Rapanos, and a need for costly
litigation in order to preserve wetlands and waterways that
should, from the outset, be clearly protected under the Clean
Water Act.
To make matters worse for us in New York, the DEC, our
State environmental agency, only regulates wetlands that are
12.4 acres or larger except in those cases where a wetland can
be shown to be of local unusual importance by the DEC
commissioner. With the loss of protection under SWANCC and
Rapanos, there is now no clear Federal or State protection for
thousands of small but hydrologically significant wetlands
throughout New York State that are threatened by development.
Without clear and strong guidance from Congress on the
broad jurisdictional reach of the Clean Water Act as currently
outlined in the Clean Water Restoration Act, Riverkeeper simply
cannot fulfill its mission of acting on the public's behalf to
protect the Hudson River and other vital New York waters. CWRA
will put an end to the state of confusion that SWANCC and
Rapanos have engendered among relevant Federal agencies and
return to the status quo of a Clean Water Act regulation that
was in place for 30 years prior to 2001.
Rather than expanding the reach of the Clean Water Act, as
CWRA's opponents have disingenuously argued, the CWRA
amendments merely conform the statutory text of the Clean Water
Act to the EPA and Corps implementing regulations that were in
place for more than 30 years prior to the upheaval caused by
the SWANCC and Rapanos decisions.
Now, more than ever, Congress must pass the Clean Water
Restoration Act to reaffirm the statute's original intent which
accordingly to the language of the Act itself, as has been
pointed out today, was to restore and maintain the chemical,
physical and biological integrity of the Nation's waters and
make our Nation's treasured waters fishable and swimmable once
again. Needless to say, fulfillment of that goal is long
overdue.
Thank you very much, and I also just want to thank you very
much for giving me the chance to jump onto this fourth panel
and try and catch the 8:00 train home. My staff attorney is
five months pregnant and getting her home at 1:00 or 2:00 would
get me in steep trouble with her husband, I am sure. So, thank
you very much.
Mr. Bishop. [Presiding.] Thank you very much and thank you
for your patience today.
Mr. Tierney, I know you have a flight to catch as well.
Mr. Tierney. Thank you, Congressman Bishop.
I really appreciate the opportunity to speak with you here
today and, this, we find is a critical issue.
Now my name is Jim Tierney. I am the Assistant Commissioner
for Water Resources in the State of New York, and that means in
my purview I have flood control, flood protection, wastewater
treatment plants, a lot of clean water and safe drinking water
responsibilities. So I wanted to share a few things on a State
perspective on this, which I think is important, and I think in
some ways I can speak on behalf of many States, and I will
explain why.
The Clean Water Act has been integral to the protection of
our Nation's waters for more than 30 years. Unfortunately, the
ruling of the United States Supreme Court, particularly in
Rapanos in my way of thinking, jeopardizing the Federal water
pollution protections for the majority of the Nation's rivers,
streams and wetlands.
So the State of new York formally and the governors behind
this support the Clean Water Restoration Act of 2007. Our
understanding of this legislation, our reading of it is that it
truly is in the nature of a restoration.
For over 30 years, the Clean Water Act was understood as
regulating the discharge of pollutants, including fill, into
traditional navigable waters, their non-navigable tributaries
and wetlands adjacent to these water bodies. This view of the
scope of the Act was contained in regulations promulgated by
both the Environmental Protection Agency and the Army Corps of
Engineers and, more precisely, was embodied in the regulatory
definition of the term, waters of the United States. This
legal, this regulatory definition is fundamental to the full
scope and jurisdiction of the Act.
While New York and the vast majority of States have
expressed strong support for this EPA and this Army Corps
regulation--I want to stress this to you--indeed, 34 States
joined in an amicus curiae brief before the Supreme Court,
which supported this regulatory definition in the Rapanos case,
2 States supported amicus briefs on the opposite side.
Now, New York strongly would like to say we concur with the
scientific and technical findings of the Act. We actually find
these findings to be just simply excellent and, in a way, tell
it all with respect to the scientific connection,
scientifically demonstrated connection between all waters.
New York, as Alex mentioned, has lost 60 percent of its
wetlands since early colonial times. Many other States have
suffered even higher losses. I want to underscore that
restoration efforts to get back what we have lost are difficult
and time consuming, and a great fear that we have is that once
our wetlands and small streams are lost and the biodiversity
which they foster is lost, it may be difficult or impossible to
reestablish this.
Preserving wetlands and small streams through effective
Federal statutory and regulatory programs is environmentally
beneficial, economically effective and provides reasonable
certainty for the regulated community.
I just say flatly that we just simply don't know, and the
experts on my staff don't know how you fulfill the purpose of
the Clean Water Act to restore and maintain the physical, the
chemical and the biological integrity of our Nation's waters
without protecting the headwater streams and the headwater
wetlands. We don't know how you do that. So the Clean Water
Act, at a minimum, has to fulfill that function.
We see Rapanos and the mischief involved in some of the
Rapanos decisions as walking far away from that, and so that
undercuts the fundamental purpose of the Clean Water Act. We do
wish that certain Supreme Court members had read the
fundamental purpose of the Clean Water Act when they were
coming up with these interesting and innovative mechanisms to
try and define what the scope of waters of the United States
are.
Now, with just a little more time left, I want to speak in
terms of rebuttal and in terms of State interest. There is
something called 401 water quality certification which gives
the States, as a whole, regulatory authority over certain
Federal permits and Federal actions.
If you shrink the definition of what constitutes a water of
the United States, you shrink the States' regulatory authority
over hydroelectric dams, nuclear power plants, all FERC
facilities and FERC-regulated facilities and other Federal
permits issued by the Army Corps of Engineers. So this
shrinking of the definition of the waters of the United States
expands the scope of Federal preemption over very important
things to the State of New York.
It also doesn't address upstream pollution into downstream
areas. For instance, Arkansas and Oklahoma have sued each other
famously over a number of years over upstream pollution going
to a downstream State.
The Clean Water Act presents a remedy to States, a legal
remedy that supplanted previous Federal common law. By
shrinking the scope of the term, waters of the United States,
you literally take away a very valid and very useful interstate
remedy. Frequently, these things are worked out without getting
into lawsuits, but sometimes, frankly, we have to tell our
fellow States, do we need to sue you or are we going to work
this out?
Drinking water quality, flooding, dam safety and the like,
all these things are closely connected to the integrity of our
headwater wetland and our headwater streams. When you eliminate
the wetlands, if you fill the wetlands, if you fill streams,
water moves downstream ferociously.
A cubic foot of water is 62.4 pounds. More of it rolling
down the stream literally rips it apart. It adds a lot of
turbidity to the drinking water supply, and that has to either
be filtered out or it can cause waters that are previously
unfiltered water supplies, such as New York City's drinking
water supply, to need filtration.
I want to underscore this with you because we really
believe that if you deregulate these wetlands, if you
deregulate the controls over these wetlands, if you don't
correct the Rapanos decision, we think the New York City
drinking water supply, for example, is at risk. If you simply
have two four-hour periods of turbidity over five NTUs--that is
pretty clear water--getting into the New York City distribution
system, it could result in an automatic filtration order under
current Federal law, under current Federal regulations.
This is a $10 billion issue for us. To operate that plant
each day would be another million dollars. So there is huge
economic cost as well.
I want to mention one other thing. Our worst case that has
been presented, and I will sum up quickly, is that small
streams, that small wetlands and some of these ditches, as
people talk about, would be regulated. That can be handled
through a very efficient and very effective general permit
process.
The worst case on the other side, that these small wetlands
and streams can be filled or you can pour oil into them and it
is not requiring a Clean Water Act permit, is not handled by
the other side. I haven't seen anybody respond to that
effectively.
Thank you for your time.
Mr. Bishop. Mr. Tierney, thank you very much.
Ms. Card.
Ms. Card. Thank you. Mr. Chairman and Members of the
Committee, thank you for the opportunity to testify today
regarding H.R. 2421, the Clean Water Restoration Act of 2007.
I am the Director of the Water Quality Division of the
Arizona Department of Environmental Quality. The Arizona
Department of Environmental Quality implements a number of
water quality protection programs in our State, including the
Federal Clean Water Act.
Arizona's governor, Governor Janet Napolitano, issued a
letter of support for the legislation, and we thank you. We
thank Chairman Oberstar for introducing this legislation, the
co-sponsors and this Committee for your leadership in this area
of great importance to our State.
The Arizona Department of Environmental Quality has very
serious concerns about the potential impact of the Rapanos
decision on clean water programs in Arizona. The decision could
minimize, if not devastate, surface water quality protections
that have been implemented in Arizona under Federal leadership
at least since the 1972 amendments. While the decision alone is
of grave concern, the implementation guidance jointly issued by
the EPA and the Corps further puts Arizona's waters at great
risk.
Our specific concern for Arizona stemming from the Rapanos
decision and guidance is the potential elimination of Clean
Water Act protections particularly Section 402, point source
permitting protections for ephemeral and intermittent or
nonperennial waters and headwaters streams.
Arizona's landscape includes a vast network of these
nonperennial streams: 96 percent of the stream miles in Arizona
are nonperennial, and most of them are a significant distance
from the Colorado River. The Colorado River through the Grand
Canyon has been deemed by the Army Corps of Engineers as
Arizona's only traditional navigable water. I have included a
map and graphs with my written testimony that illustrates these
points.
Arizona's largest water body, second in size only to the
perennially flowing Colorado River, is the Gila River. The Gila
River, an interstate stream originating in our neighboring
State of New Mexico, drains two-thirds of the land area in
Arizona.
The Gila flows intermittently in wetter years, but in times
of long-term drought such as we are presently experiencing,
this massive water body is largely dry and any flow is highly
disconnected. The Gila's main tributaries include the Salt,
Santa Cruz and Hassayampa Rivers which are very large and
mainly ephemeral streams.
Arizona's largest and fastest growing counties, Maricopa,
Pima and Pinal Counties--I believe Maricopa is the Country's
fastest growing county--are located in the heart of the mostly
ephemeral Gila River drainage. Subdivisions require sewage
treatment facilities, and many of these facilities construct
outfalls and discharge to ephemeral arroyos in these
neighborhoods. These facilities currently hold Clean Water Act
point source permits for discharges of wastewater that are
protective of aquatic life, agricultural irrigation, livestock
watering and body contact uses.
Without Clean Water Act protections, the Arizona Department
of Environmental Quality will be unable to require permits that
are protective of these uses I have just listed. Arizona law
prohibits the Arizona Department of Environmental Quality from
being more stringent than the Federal Act.
Arizona's nonperennial stream water quality has benefitted
from Clean Water Act protection since the early 1970s when 402
point source permits were issued for several facilities
discharging wastewater to ephemeral streams, including permits
for major publicly-owned treatment works serving the cities of
Tucson and Phoenix and discharging large amounts of effluent to
the Salt and Santa Cruz Rivers which are tributaries to the
Gila River as I just described.
Combined, these facilities treat over 200 million gallons
per day of municipal and industrial sewage and still discharge
to these large ephemeral waters under Section 402 point source
permits. The Rapanos decision and guidance have presented the
opportunity for these large POTWs and other dischargers in
Arizona to argue that their discharges do not require Clean
Water Act pollution limits after more than 30 years of such
limits.
The impacts of the Rapanos decision and guidance in Arizona
may be widespread, impacting surface water quality standards
for nearly all of our surface streams and nearly all of our 160
Section 402 permits for wastewater and stormwater discharges to
waters other than the Colorado River.
Without these Federal Clean Water Act protections which
have been in place for 35 years, my agency may not be able to
protect Arizona streams for aquatic life uses for species like
Arizona's native Gila and Apache trout. We may not be able to
protect surface streams for agricultural irrigation use or
livestock watering, and we may not be able to prohibit
wastewater discharges to our most pristine, high quality
streams like Sabino Creek and the Little Colorado River. I have
also included pictures of those water bodies in my written
testimony.
Our governor and the Arizona Department of Environmental
Quality support the Clean Water Restoration Act of 2007 because
it ensures the longstanding pre-Rapanos Clean Water Act
programs and protections remain in place to protect the surface
water resources in our State.
Thank you.
Mr. Bishop. Thank you very much.
Mr. Trout.
Mr. Trout. Good evening, Mr. Chairman and Members of the
Committee.
My name is Robert Trout. I am an attorney in private
practice in Denver, Colorado. I have been practicing law for
about 32 years in water rights and water quality issues,
representing both private and public entities. Right now, I am
general counsel for the Northern Colorado Conservancy District
which is the largest agricultural water supplier on a wholesale
basis in the State of Colorado.
I have been asked by Congressman Salazar to testify this
evening to bring to your attention really the problems that the
definitions in the bill potentially raise for agriculture,
particularly irrigated agriculture in Colorado.
As you probably all know, Colorado does not receive enough
natural rainfall for growing crops without artificial
irrigation. So virtually all crops grown in Colorado are grown
using water that is diverted from streams or pumped out of
wells, applied to the crops and then either seeps into the
ground or runs off to nearby swales, drainages and rivers.
In Colorado and most western States, we have a somewhat
unique set of laws that govern the allocation of water which we
call our water rights laws. In Colorado and I think most other
western States, water, under the constitution, is declared to
be the property of the public, but it is subject to
appropriation by private citizens.
Those private citizens have the right to divert water from
the streams, apply it to irrigation, and then whatever is left
runs back to the streams. These rights are determined in State
adjudication proceedings and are considered to be private
property rights under both Federal and State constitutions.
In Colorado, farmers and I am personally, obviously, not a
farmer. My grandfather was, but he actually farmed in
Washington State. So I had never the privilege of having to
operate an irrigated farm, but most of my clients do, and they
use a number of methodologies for irrigating farms.
One of the oldest is what we call flood irrigation where
you simply flood the field with water, and you let it sit there
a while, and it runs off or seeps into the ground.
As modern technology has evolved and people have tried to
become more efficient with water use, they now use what we call
furrow irrigation. The field actually has furrows. Water runs
down those furrows between the lines of plants, and you can use
the water a lot more efficiently that way or you can use
sprinklers.
In Colorado, these privately constructed facilities and the
water that is in them is considered to be private property.
Once the water is diverted from a stream in Colorado until it
comes back to the stream, it is considered the appropriator's
private property.
Our State definition of waters of the State, which is the
parallel definition from the Federal definition, excludes those
waters. Thus, if you modify the Clean Water Act as the way this
bill proposes, to include waters which potentially are in the
process of use, it will expand the definition as it applies in
Colorado.
The problems with the bill that we see from the respect of
agriculture really come from the fact that we do believe it
expands the traditional definition of what the Clean Water Act
covers. You have heard a lot of testimony today about the fact
that it includes activities and also that the definition states
the intent to assert jurisdiction as far as constitutionally
possible, and that is not certainly how the Act has been
interpreted in the past.
One term used in the Act is wet meadows. In Colorado, and I
think Congressman Salazar himself, it is not uncommon to have
hay fields that you flood. Well, once those hay fields have
been flooded and they may be near the stream, they are a wet
meadow. So the question that arises in our minds is are such
fields, once they are irrigated or because they are irrigated,
do they become subject to the jurisdiction of the Clean Water
Act?
The same with flood irrigation alfalfa fields which also
may be flooded completely for a while and then not used.
Also, the term, wetlands, really causes a lot of
consternation among people who operate ditches in our State.
Ditches leak and, because they leak, it is not uncommon for
wetlands to form below a ditch for a half an acre, maybe an
acre, maybe less, maybe more in areas where the ditch leaks.
Well, we obviously are trying to be more efficient in the
use of our water, and the question that arises in our mind is
if that ditch is lined or that seepage is stopped, that has an
effect on the wetland. Is that regulated under the statute as
it is proposed?
I will tell in Colorado, in the Omaha Ditch of the Corps of
Engineers, currently that is not regulated. That is not
considered to be a water of the United States.
Finally, farms have many impoundments of water. They have
stock ponds. They have ponds used to store water before it is
applied to irrigation. They have small reservoirs.
The definition that includes impoundments of the foregoing,
particularly coupled with the language that the intent is to
extend the legislative power of Congress as far as possible
under the Constitution, raises serious concerns as to whether
all of those, for practical purposes, private ponds would be
regulated under the Act. Remember, these are ponds that do not
discharge to any other waters. The water simply is pumped out
or run out by gravity until to be used for its intended
purpose.
In response to the Chairman's request that witnesses
discuss the manner in which this legislation could be improved,
there are two things that could be done to really remedy these
issues. One would be to have a specific exemption for irrigated
agriculture, that waters that are in the process of being used
for irrigation are not waters of the United States. That
exemption is not in the statute now.
There is an exemption from Section 402 discharge
requirements, but that applies to return flows. There is an
exemption from 404 permit requirements, but that doesn't apply
to discharge requirements.
The concern we see is application of pesticides to an
irrigated field potentially could require a discharge permit
under this definition. If the Committee and the Congress wish
to go forward with a clarification, there should be a specific
exemption for such things.
Thank you very much.
Mr. Oberstar. [Presiding.] On that point, isn't irrigation
a normal farming activity?
Mr. Trout. It is in Colorado, yes. Yes.
Mr. Oberstar. It is all throughout the Midwest. It is all
throughout the area.
Mr. Trout. I understand it is becoming common in the United
States.
Mr. Oberstar. Yes. So it is covered by the exemption for
normal farming activities.
Mr. Trout. Which exemption are you referring to?
Mr. Oberstar. Irrigation. You are saying you wanted a
special reference to irrigation, but irrigation is considered a
normal farming activity.
Mr. Trout. But which exemption from the Clean Water Act are
you referring to now?
Mr. Oberstar. The exemptions in the Clean Water Act that
are included by specific reference in the introduced bill.
Mr. Trout. There are two exemptions. There is an exemption
402.
Mr. Oberstar. Agricultural return flows.
Mr. Trout. That is correct.
Mr. Oberstar. Normal farming, silvicultural and ranching
activities.
Mr. Trout. The agricultural return flows exemption applies
to agricultural return flows.
Mr. Oberstar. Yes.
Mr. Trout. Water applied.
Mr. Oberstar. Normal farming activities includes
irrigation.
Mr. Trout. Are you referring to the exemption on Section
404?
Mr. Oberstar. The savings clause in the bill.
I don't want to take from Mr. Pifher's time right here. I
just wanted to make that point. We will come back to it.
Mr. Trout. Okay.
Mr. Pifher. Good evening. My name is Mark Pifher. I am
Deputy Director of Water Resources for Aurora Water, the third
largest municipality in Colorado. I was formerly the Director,
though, of the Colorado Water Quality Control Division.
I am here today on behalf of certain western municipal
interests. Bob was covering agriculture. I cover the urban
areas, in particular, members of the Western Urban Water
Coalition, the Western Coalition of Arid States and the
National Water Resources Association. Each of these municipal
entities face the daunting challenge of providing reliable,
sustainable and safe water supply as well as wastewater and
stormwater services to their many citizens.
Water is a scarce and precious resource in the West, and we
are all dedicated to its preservation and wise use. Therefore,
we applaud the efforts of the Chair here to forge a bill that
would meet everyone's need.
We believe that if we work together, identify our common
interests as I think has been done by some of the panels here
today, we can protect our resources and their many uses
including irrigated agriculture, municipal use and aquatic life
and we can ensure that the Clean Water Act remains the sound
foundation for water quality protection that it has been for
over 30 years.
I would like to focus my particular comments, though, on
infrastructure needs for western municipal entities and, in
particular, how the bill is currently drafted may impede that
infrastructure construction.
In the West, we have growing populations, and unfortunately
we have shrinking water supplies. Climate change, which we all
believe is real, is only going to exacerbate that situation.
Therefore, we need to adapt, and that includes adaptive
measures that are related to infrastructure. Let me give you a
few examples.
First, we will have an increased reliance, I think, on
reuse and recycling projects as Mrs. Napolitano referenced. I
think they are very important.
We will have the installation, I think, and maintenance
responsibilities associated with new stormwater control
structures including artificial wetlands.
We are going to have an expanded use, I think, of
groundwater recharge projects, and Mr. Grumbles addressed the
groundwater question.
We will have the installation, I think, of additional best
management practices to control nonpoint source runoff which is
the remaining, I think, most significant uncontrolled source of
pollutants today.
We are going to have to have the construction of additional
storage reservoirs to capture snowmelt, including some high
elevation storage. We will have replacement of leaking and old
and aging infrastructure and pipes and pipelines.
We are going to have to carefully manage our water,
including releasing water to support threatened and endangered
species.
We are going to have to learn to use, I think, what we used
to consider to be wastewater like produced water from energy
development that is occurring today in the West and place it to
beneficial use.
But each of these activities requires the construction of
new or replacement of infrastructure.
If the Clean Water Act embraces all waters to the extent
they are subject to the legislative power of Congress under the
Constitution and all activities affecting those waters, the Act
could be interpreted by the courts to embrace all groundwater,
all draining activities, all associated recreational
activities, traditional flood control activities and stormwater
control activities, all activities on Federal lands in source
water protection areas.
The permitting burden on municipalities could increase
significantly as more western gullies, washes, dry stream beds,
intermittent streams that flow only in response to
precipitation, and effluent and dependent and isolated waters,
and activities on public and private land surrounding such
waters are now found to be by the courts within the scope of
the Act.
Equally important, thought, to the extent there is a new
Federal nexus, there may be triggered additional NEPA reviews
which are very costly and very expensive for municipal
entities.
On the wastewater side, there will also be a need for new
infrastructure. Small towns will face additional burdens,
utilizing lagoon treatment technology. Constructed wetlands
will be a less attractive wastewater treatment alternative.
Zero discharge options may be eliminated. Reclamation projects
may be more difficult to permit.
Similar constraints will be faced, we are fearful, by
stormwater control entities.
Relative to climate change, I think we will see a need for
increase storage to buffer us through drought times, enhanced
stormwater management to handle those extreme rainfall events
that the scientists are predicting, increased underground
storage of water and expansion of water collection systems
including pipelines and a construction of desalinization
projects and a utilization of brackish waters. Again, if the
definition of waters of the United States overly broad, these
projects will similarly face increased regulatory burdens.
In conclusion, western municipalities along with State
Governments and the EPA are partners in the implementation of
the Act. We currently expend enormous financial resources in
meeting and exceeding water treatment and wastewater discharge
requirements. We recognize the value of our water resources.
We want to diligently work to protect them, including in
arid climates as referenced by Arizona. There is no intent to
exempt large municipal discharges. However, to the extent
statutory changes are needed, they should not add to Federal
oversight, reduce local flexibility, add to infrastructure
costs or increase litigation opportunities.
We certainly stand ready to work with this Committee in
forging some amendments that will work for all people involved.
Thank you.
Mr. Oberstar. Thank you, Mr. Pifher.
I am particularly sensitive to your comments about water-
short western States. Early last year, this Committee, as one
of our first pieces of business, moved legislation through the
Subcommittee, the Full Committee and through the House to
provide $1,800,000,000 in grant funds to water-scarce States to
do exactly the things that you were describing.
Regrettably, as we affectionately call them, the other
body, hasn't acted on that bill. If your Senators and others
would get going and find a way to do something other than
appoint ambassadors and judges, then we would get on with the
critical business of this.
Mr. Pifher. We will see what we can do to help.
Mr. Oberstar. I will go to Mr. Bishop to start with.
Mr. Bishop. Thank you very much, Mr. Chairman.
I know Mr. Tierney has a plane to catch, so I will respect
that and simply say that I have a couple of questions which I
would like to submit to you in writing and ask you to respond
in writing so that it may become part of the permanent record.
I thank you for your testimony, and I thank you for your
patience and, most importantly, I thank you for your service to
the people of New York. We are very fortunate.
Mr. Tierney. Well, thank you. Thank you, Congressman
Bishop.
Mr. Oberstar. That is it?
Mr. Bishop. I yield back the balance of my time.
Mr. Boozman. Very good. We need to remember.
Mr. Oberstar. Mr. Boozman.
Mr. Boozman. Thank you, Mr. Chairman.
Mr. Tierney, I was in New York earlier last week with a
field hearing with Mr. Hall, and I want to compliment the State
of New York. The testimony was excellent. It was just a very,
very good hearing. I learned a lot. I hope that it was helpful
for us to be down there and do the hearing.
I guess my concern is this, in your testimony, you cite
that 35, or whatever, people joined with the amicus brief,
saying that they were opposed to rolling back the provisions,
okay, prior to the ruling.
Mr. Tierney. Yes, sir.
Mr. Boozman. In other words, they supported the things that
were in place. That is fine, but we are not arguing that. We
are arguing not those provisions. We are arguing the potential
provisions for this new legislation.
Now, in your closing deal, you said, ``This is the guidance
the States are seeking from Congress, and I believe H.R. 2421,
by reaffirming and articulating the original intent of the
Clean Water Act, frames the Federal wetland and small stream
regulation effectively. By clearly defining this issue, the
States will be able to, once again, with the Federal
Government, effectively regulate all connected wetlands and
streams.''
But we have had a situation today where the four regulating
agencies that testified, and you were probably here. I can
barely remember it now because it was a while ago, but all of
them voiced concerns that this was a fairly significant
departure from the pre-Rapanos decision. Okay?
They were basically saying, when you talk about all
interstate and intrastate waters, they testified that that
might include groundwater also. They also said that there was
no exclusion for wastewater treatment in the holding ponds.
They also testified that it didn't include prior converted
cropland.
I would submit that those 35, when you talk in those terms,
you are not going to have 35 people support that for 35
jurisdictions, and I guess my concern is that.
The other thing that you mention in your testimony is that
somehow this clears this up. Now I am just a guy from Arkansas,
but we had four very intelligent people that are regulators.
They agreed on two things. They agreed that it extended the
jurisdiction significantly. They also agreed that they were
confused, and it wasn't clearing anything up for them.
We had another panel, the lawyers that were here. Again, we
had two for, two intelligent guys, two against that made very
good arguments. We have had the last panel, and now we have
you.
So, again, I just don't see either one of those things
being the way it should be.
Mr. Tierney. Okay. I will try and be brief.
There certainly are a few clarifications that were talked
about today that are in the EPA and Army Corps regulations
which could be cited and clear those up, clear up those items.
The concern I have, I think particularly with Mr. Grumbles'
statements, is he wants to keep the term, navigable, in this
definition. Now we can go through and work through getting a
better definition of what is covered if that is what people
want. I would love to work with you on that. But as soon as you
add in the term, navigable, then it is the source of all sorts
of mischief.
Mr. Boozman. I understand, but isn't all inter and
intrastate water, again excluding the wastewater, doesn't that
bother you a bit?
Mr. Tierney. It actually doesn't. In the State of New York,
groundwater is a water of the State of New York under our
program, but certain other things are not. We regulated
groundwater because the Federal Government doesn't do it and as
the statute doesn't say groundwater.
The EPA regulations and the Army Corps regulations didn't
say groundwater. It was never understood as being true
groundwater that would be involved in the program. So that
didn't bother me, given 35 years of experience with this had
operated.
Mr. Boozman. So, with your experience, you feel like that
this takes us just back to pre-Rapanos, no further?
Mr. Tierney. Yes, sir.
Mr. Boozman. For the Country, not for New York but for the
Country?
Mr. Tierney. I believe for the Country. The Army Corps and
the EPA regulations that were passed in 1975 were very broad,
and those were enacted near the time when the Clean Water Act
was first passed. That regulatory definition is very similar to
what is in the draft of the bill right now.
I just want to emphasize there is a practical hard-headed
attribute to this, and it has to do with general permits. Army
Corps, EPA, the State of New York, other States issue general
permits for these nonsensical things like people say, well,
puddles could be involved.
The general permits basically could say those are excluded.
Those aren't involved. We could define it in a way. Nobody is
going to call a manure lagoon a water of the United States. I
heard somebody say, well, could manure lagoons somehow end up
being regulated?
So the way that those issues, those sort of odd linguistic
uncertainties that are involved in anything in the English
language, could be handled is through these general permits or
some clarifications that the Chairman has talked about today.
Mr. Boozman. I guess, with all due respect, I mean that is
your opinion, but the problem is the regulators that are going
to enforce that, they don't agree with that opinion.
Mr. Tierney. Here is the problem.
Mr. Boozman. That is a major problem.
Mr. Tierney. If I may, let me pose the problem back to you.
If somebody right now dumps poison in a dry stream, a dry
stream bed or in a wetland that is not connected, that won't
flow into a stream for a week. A week later, it rains and it
flows in. That is not regulated under the Clean Water Act under
a definition which takes away these small headwater streams and
wetlands from regulations. Now something else might cover it.
So I would pose it to you, sir, as the problem on your side
where at some point that would flow into a stream, whenever it
becomes a stream and stops being a point source is a very
serious problem that I don't think the people who are opposed
to this bill have truly grappled with the implications of it.
Mr. Boozman. Okay. So, pre-Rapanos, well, first of all, if
there is a nexus and all that stuff, and basically there is,
that is not necessarily true. You know the statement about
dumping in.
But, again, my concern is that we are hearing lots of
arguments that there is expansion over the pre-Rapanos. I think
if you read this literally, and we are talking about the
legislation. We are talking about making this law. Then there
is a fairly significant expansion.
The other thing is the best evidence of this thing not
clearing things up is the testimony that we are getting.
So, again, I do appreciate your efforts, and I really
appreciate the work that I saw going on in New York State.
Thank you.
Mr. Tierney. I thank you very much, sir. I guess I am going
to have to run.
Mr. Oberstar. Mr. Tierney, you have a train to catch.
Mr. Tierney. Thank you.
Mr. Oberstar. I just want to say your example was not
theoretical. There was an actual case in California, a dry
irrigation ditch in which a poisonous substance was dumped. It
rained substantially a week later. The runoff killed 60,000
fish.
Thank you very much for your contribution.
Mr. Salazar.
Mr. Salazar. Thank you, Mr. Chairman.
I wanted to especially thank Mr. Trout and Mr. Pifher for
coming all the way from Colorado and being so patient. As you
know, that is the way Congress works.
I just have a question for Mr. Trout. I know that you
testified that under Colorado water law the farmer basically
takes possession of the water and it becomes a private property
right until it is used and returned to the stream.
With regard to the current legislation, and I know the
Chairman has alluded to it, that prior converted cropland is
excluded. Is that what you understand?
Mr. Trout. Let me address that in two ways. First of all,
to go back to the little discussion the Chairman and I had, he
is correct that there are two exemptions in the current bill
and in current law that address agriculture. One of them, and
this is Section 6.1 of the bill, provides an exemption from
Section 402 for agricultural return flows.
Now, at least our understanding of return flows is what
flows off the farm after the irrigation has occurred. It is not
the water applied to the farm. That is a different thing. So
there is an exemption for if a farmer irrigates, it flows into
a stream, they do not need what we call an NPDES permit.
The other exemption, which I think the Chairman was
referring to is Section 3 or Subsection 6.3, which is an
exemption under Section 404 of the Act for discharge of dredged
and fill materials from normal farming, silviculture and
ranching activities which we make great use of in Colorado.
But my point is that if the definition is expanded
sufficiently to cover what currently are not considered to be
waters of the United States, such as wet meadows that are also
irrigated, there is no current exemption under the Act for
discharges under Section 402. There is an exemption for
discharges under Section 404.
So the application of a chemical to a wet meadow, which is
also an irrigated field, would be regulated and would require a
permit. We know that from the Talent litigation we had in
California a number of years ago.
Now, if the intention of the Committee is to really exempt
all agricultural or silvicultural operations, what you would
have to do is you would have to, in effect, add a Section 402
exemption to what is now the 404 exemption. If you did, the
concerns that I have expressed really would go away because
then, I think, farming operations would have a complete
exemption. Other people may have a problem with that.
You mentioned prior converted cropland. As we know, the
definition of prior converted cropland, at least in the USDA,
the Department of Agriculture regulations, starts at the point
that these are lands that were wetlands before. A lot of these
lands I am talking about in Colorado were never wetlands before
they were irrigated. Because they are irrigated, they may now
be wetlands or at least a wet meadow.
So having an exemption for simply prior converted croplands
does not exempt all of the lands that I am talking about. It
probably would exempt some. It might exempt your lands if they
are right down on the river, but it wouldn't exempt people's
lands who are up from the river and were not historically part
of the flood plain but are still now a hay meadow.
Did that answer your question? I am sorry I took so long.
Mr. Salazar. Mr. Chairman, are you amenable to those types
of amendments?
Mr. Oberstar. The gentleman has described accurately to a
point, but he does not reflect in his comment that there are
situations in current law, in pre-Rapanos/SWANCC law, where
there is not an exemption for pesticide application.
My purpose is not to expand it to cover that nor to cover
anything or exempt anything that is not already exempted.
Mr. Trout. If I may respond, Mr. Chairman, you are
absolutely correct which is a problem that we, my clients who
run irrigation ditches have a real issue with in the sense that
complying with that is difficult to control things.
But my point is that if you expand the definition of what
is a water of the United States to cover what are traditionally
considered to be irrigated croplands, then you are triggering a
discharge permit.
Mr. Oberstar. But the law cannot be internally
contradictory. If we exempt something and you think there is
broader language that provides broader application, the broader
application cannot override the very clear, specific exemption.
Mr. Trout. Well, that is correct.
I guess what I am suggesting is if you want to address the
problems that other witnesses have described but still provide
an exemption for agricultural activities and address these
other issues by expanding the general definition of waters of
the United States but still not put undue burdens on
agriculture, you may have to extend the 402.
Mr. Oberstar. You provide some language for us, at my
invitation, that does this without curtailing the current Clean
Water Act nor expanding its application.
Mr. Trout. I certainly will try to do that. I will work
with Congressman Salazar to do so. Thank you very much.
Mr. Oberstar. Okay.
Mr. Salazar. Thank you, Mr. Chairman. Could I just take a
minute?
Mr. Pifher, I know that we have talked a lot about the NEPA
compliance concerns of new water projects. Can you expand on
that a little bit?
Also, I would like you to address the issue of interstate
water compacts. Is there going to be any effect from this
legislation as it currently stands on interstate water
compacts?
Mr. Pifher. Relative to NEPA compliance, Representative
Salazar, a concern would be that if you have a project. As an
example, Aurora is currently constructing a recycling-reuse
project that has been widely praised including by the
environmental community at a cost to its ratepayers of $750
million, but it includes a 34-mile delivery pipeline to pipe
back to the city, return flows that have gone through
reclamation and treatment.
In the permitting of that project, we redesigned the
project time and time again to try to avoid crossing waters of
the United States and wetlands, and we microtunneled to avoid
waters of the United States and wetlands. But when all was said
and done, there were four or five instances where we just
couldn't avoid that without great expense and difficulty
including crossing ditches, irrigation ditches. Therefore, we
went to the Corps of Engineers and said, we would like a
nationwide permit, but we do not want to trigger NEPA review.
They said, well, in light of the fact it is a 34-mile
pipeline, it is a long corridor, and you only have four or five
small crossings, that will not trigger NEPA review. It won't
federalize the project.
But if you had to have a jurisdictional determination and
there was a jurisdictional determination on numerous such
crossings, the NEPA process would be triggered. You would wind
up undoubtedly spending millions of additional dollars and two
or three additional years going through that process in order
to bring on that water delivery system which, in our case, was
critical to get online because our storage after the 2002
drought had dropped to 25 percent. It was a critical need.
So that is an example under NEPA.
As far as interstate compacts, that is a very difficult
question. I guess one concern would be when you talk about the
full reach of Congress under the Constitution and all
activities that may affect waters. You could have situations
where you have water bodies covered by interstate compacts like
the Colorado or the Arkansas, for example, where the downstream
State would look at activities in the upstream State that could
cause some water quality degradation in the downstream State
and therefore object to that activity.
That could include water diversion activities in the
upstream State that simply remove flow from the river and
therefore deplete flows that the downstream State believes are
necessary to support some of its designated beneficial uses
like aquatic life. That would lead to interstate friction.
So I don't think it is unresolvable, but it is something we
need to think through.
Mr. Salazar. Thank you, Mr. Chairman. I yield back.
Mr. Oberstar. I appreciate the gentleman's comments and the
responses.
Mrs. Napolitano.
Mrs. Napolitano. Mr. Chair, I think the questions that I
have deal more with recycled water and drugs in water,
pharmaceuticals in potable water, those kinds of areas.
But I am very much interested in how some of those laws
affect the State of California and the western States simply
because there is going to be an increase in need of additional
water, whether it is recycled, reused, farm water putting back
to use, drainage ditch water. I think we are going to have to
look for every puddle to be able to ensure that we do have
water for the future, for economic reasons as well as for
reasons of health.
I am very much in tune with some of the issues you bring
up, but in the end I think maybe we sometimes make a mountain
out of a molehill in trying to add to an already existing
issue. Sometimes I am finding out that the attorneys are the
ones who benefit more out of the litigation--sorry, sir--than
the benefit to the users and to the end result which would be
the delivery of potable water to the people that need it, for
agricultural uses also.
So I would consider being able to understand what impacts
or what loopholes or what language there would be that would
tie some of this up that does not allow for the abuse in the
future if this bill goes through with amendments that might
necessary. So, if anybody has a comment to that, I would like
to hear it, especially by the attorneys.
Mr. Trout. As you can tell, my comments are aimed primarily
at agricultural issues. Certainly, the people that I work with
share your concern about pharmaceuticals in water. The big
irrigation district that I work with is now discussing whether
we would start testing for such things.
I guess on a personal attorney's note, I would disagree
with you about sort of characterization of the statute. The
common joke among the people I work with, attorneys and
scientists who work on this, is that if this bill passes it
will put our kids through college because we think it will
actually cause more controversy and more litigation as the
Federal Government pushes the limits of the Congress'
constitutional authority. That, I think we have seen from the
Supreme Court's opinions.
The Supreme Court didn't view it that way when it
interpreted the statute. It viewed that it was interpreting the
statute as written and didn't have to get to the constitutional
issues. So, if we have to litigate on constitutional issues, it
probably won't be me, but that is the view of it kind of in the
trenches of the people who look at this.
Mrs. Napolitano. How do we avoid that?
Mr. Trout. I am not a Republican by the way. I would call
myself a conservative Democrat, but I will give you my
conservative response which is maybe wait a year or two and see
how the current regulations work out. I mean we all agree, I
think, that the Supreme Court did nobody favors in the Rapanos
case. They really created the muddle, but that is not the first
time the Supreme Court has done that.
Give the Administration, the current one and perhaps the
next one, some opportunities to try to work through that rather
than create new legislation which really adds a full layer,
again, of complexity on it. That is the view of a conservative
lawyer.
Mrs. Napolitano. But wouldn't it be also true that if this
bill were to be enacted, that that might conceivably be then
reinterpreted by the Supreme Court?
Mr. Trout. Oh, I guess I have no doubt that if this bill
was enacted the Supreme Court would read and then decide what
is Congress' constitutional limit and assertable authority.
Mrs. Napolitano. Wouldn't that then preclude some of the
filings to be able to challenge it?
Mr. Trout. Litigation is not that general. I guess I would
put it that way.
Mrs. Napolitano. That is being simplistic, I know.
Mr. Trout. You are right. In 30, 40 years, probably you are
correct.
But, as you know, in our world, things get decided on a
case by case basis. You get one decision like the SWANCC
decision which was limited specifically to the Migratory Bird
Rule. There are many other sources of Federal jurisdiction over
waters. So you would have to have a series of decisions over
time to build up a body of law.
Mrs. Napolitano. Which brings me then to my statement
originally which is how do we close those loopholes? How do we
address the issues? I don't mean for every single one but to be
able to have the intent of the law be actually carried as a
protector of human beings and essential to agriculture and the
economy.
Mr. Trout. I will be honest. At this point, I don't have an
answer for you. Sorry.
Mrs. Napolitano. Thank you, Mr. Chair. I yield back.
Mr. Oberstar. Ms. Hirono.
Ms. Hirono. I just have a short comment.
Mr. Trout, great name, by the way. You said that maybe what
we should be doing is letting the guidance take place, and
there have been some thousands of cases that have already gone
through the process, I suppose, using that guidance.
But my concern is that those provisions really flow from
very confusing Supreme Court decisions. That is why I asked the
first panel.
I think it is up to Congress to try and lay out the law as
clearly as possible, avoiding unintended consequences, because
it is the privy of the courts to then interpret our statutes,
not the other way around. And so, Congress often comes in,
disagreeing with what the Court has done and provides the kind
of clarity.
So I am not so sure that what we should be doing is waiting
a couple of years for guidance that really put in play court
decisions that did not provide the kind of clarity that we
want. I don't know that that is what we ought to be doing
either.
It is more a comment than a question.
Mr. Trout. Okay. That is certainly your prerogative.
Ms. Hirono. Thank you, Mr. Chairman.
Mr. Oberstar. Mr. Carney.
Mr. Carney. No questions at this time. Thank you, Mr.
Chairman.
Mr. Oberstar. I have a question for Ms. Card and
appreciation for your testimony and for the strong position of
your governor in a very lucid statement in support of the
introduced bill.
We have information from EPA that certain publicly-owned
treatment works, POTWs, Section 402 agencies in Arizona are
petitioning that they are no longer covered by the Clean Water
Act, submitting statements to EPA saying they are no longer
covered as a result of the Court cases.
You said that Arizona is prohibited by State law from
filling the gap left behind by pulling back on the law as a
result of the Rapanos decision. How will Arizona then be able
to address those facilities if the Clean Water Act doesn't
cover, if the State Government can't do any better than current
law and current law now has been downrated by the Court case?
Ms. Card. Yes, Mr. Chairman, I am familiar with what you
are referencing. As I said in my testimony, my agency would no
longer be able to protect the stream for aquatic life uses, for
agricultural irrigation, for livestock watering. With respect
to some pollutants, livestock watering has more stringent
health-based standards than drinking water does. So it would
create a tremendous gap potentially for huge discharges of
wastewater.
Mr. Oberstar. And the State won't be able to protect its
citizens as it has been doing up until now?
Ms. Card. No under current State law, that is correct.
Mr. Oberstar. That is a very serious gap.
You have heard the discussion. You have sat here intently,
listening all day about retaining the language in the Clean
Water Act where it appears referencing navigable waters of the
United States, retaining it but accompanying that, tying to
it--I have said, riveting to it--the regulatory practices so
that we spell out what has been in place prior to the two Court
decisions to assure that there is clarity and continuity and no
expansion nor retraction of the Clean Water Act.
What would be your reaction to that?
Ms. Card. Well, Mr. Chairman, I agree that some useful
points have been made at this hearing which, of course, is the
point of the hearing and the legislative process itself.
With respect to the navigability test and the concerns I
have raised in my statement about ephemeral and intermittent
streams and headwaters streams protection, the navigability
test is not helpful in Arizona. As I mentioned, 96 percent of
our waters are nonperennial. According to the Corps, our only
navigable water is the Colorado River, and our headwaters
streams are in some cases 200 miles from the Colorado River.
In the Rapanos case, Justice Kennedy wrestled with a 10-
mile difference between waters, and so the navigability test
has not served us well or potentially will not serve us well
under the Rapanos decision.
The Clean Water Act, prior to the Rapanos decision, served
us very well. We have a 1975 Arizona Federal District Court
opinion in which the judge said, dry arroyos are tributaries of
navigable waters, period, and discharges of toxic mine waste
require permits under the Clean Water Act even if it is to a
dry arroyo which, of course, is non-navigable.
So, with respect to toxic discharges to dry streams in
Arizona, that has been long settled and undisputed and
noncontroversial. The problem with the Rapanos decision and
guidance is it potentially turns that on its head.
Mr. Oberstar. Can you craft language to establish or retain
that pre-Rapanos authority for Arizona and similar States?
Ms. Card. Well, again, if it is clear in the Act that
intermittent and ephemeral and headwaters streams are
protected, I think there is probably more than one way to do
that in this legislation.
Mr. Oberstar. Would you provide some language for the
Committee?
Ms. Card. I would be happy to wrestle with that.
Mr. Oberstar. Thank you.
Mr. Boozman.
Mr. Boozman. Mr. Chairman, just for a second, if you don't
mind.
I was just curious, Ms. Card. Is that by State constitution
that the law is such that it can't supersede the Clean Water
Act?
Ms. Card. Mr. Chairman and Congressman, no, that is State
statute.
Mr. Boozman. I guess the obvious question is why? Why don't
you change the law?
Ms. Card. Because I am not the Arizona Legislature, and I
can't speak for them.
Mr. Boozman. What is your opinion as to why they can't
change the law?
Ms. Card. Well, I don't think it has been presented to them
yet, and I can certainly imagine the potential for me to be
making this same plea at the Arizona Legislature.
We think the problem is immediate. It needs to be addressed
now, and that it is properly addressed by the Federal
Government. Just because Arizona is an arid State doesn't mean
we are deserving or in need of less protection from pollution
than wet States.
Mr. Boozman. Do you think your legislators would be upset
if they had the possibility of all interstate and all
intrastate and possibly groundwater being controlled?
Ms. Card. Mr. Chairman and Congressman, again, I can't
speak for them. I know that the bill has been controversial,
and I am sure there are members of the Arizona Legislature who
would be concerned.
Mr. Boozman. Good. Thank you. Thank you for testimony. I
thank all of you very much.
Ms. Card. You are welcome.
Mr. Oberstar. I want to thank this panel for their
contributions, and I look forward to submissions as the Chair
has requested. Thank you for being here with us for this very
long day.
Our next panel: Mr. Tim Recker, the Iowa Corn Growers; Mr.
Carl Shaffer for the Pennsylvania Farm Bureau; Mr. Harold Quinn
for the National Mining Association; Mr. Darrell Gerber, the
Clean Water Action Alliance of Minnesota; and Ms. Linda Runbeck
for the American Property Coalition in Minnesota.
To this panel, again, my apologies that the interventions
of the votes this afternoon have stretched out the hearing
time. But, as you can tell and you have sat here very
patiently, listening, you are the best informed panelists. You
have heard everything, and you have seen this is a very
intensely debated subject with very strong feelings.
It has been a productive day, and you are adding to it. We
look forward to hearing from you.
Mr. Recker.
TESTIMONY OF TIM RECKER, IOWA CORN GROWERS; CARL SHAFFER,
PRESIDENT PENNSYLVANIA FARM BUREAU; HAROLD P. QUINN, JR.,
SENIOR VICE PRESIDENT, LEGAL AND REGULATORY AFFAIRS, NATIONAL
MINING ASSOCIATION; DARRELL GERBER, CLEAN WATER ACTION ALLIANCE
OF MINNESOTA; AND LINDA RUNBECK, AMERICAN PROPERTY COALITION.
Mr. Recker. Thank you, Mr. Chairman, and it has been a
productive day for an Iowa farm boy to come and listen to this
kind of good discussion on water quality. It has been
informative.
Mr. Chairman and Members of the Committee, thank you for
the opportunity to testify today on the legislative hearing of
the H.R. 2421, the Clean Water Restoration Act. I ask that my
statement be recorded for the hearing.
Mr. Oberstar. All statements will be included in full in
the record.
Mr. Recker. Thank you.
My name is Tim Recker. I am President of the Iowa Corn
Growers. I am from Arlington, Iowa, where I grow corn and
soybeans. I operate a wean to finish livestock operation.
In addition to farming with my brother, I actually own an
excavating business and do farm drainage, and it is quite the
contrary of all the talk we have had here today about
irrigating. We actually, in Iowa, have to drain the excess
water out. So I would love to build that pipeline to the people
who need that water and put a meter on it.
Before addressing the issue at hand, though, I would like
to first sincerely thank the Committee for the hard work and
devotion to the completion of the Water Resources Development
Act, WRDA. WRDA 2007 authorizes critical projects and inland
waterways including the modernization of seven locks along the
upper Mississippi River, which I am very close to, and the
Illinois River, a project that will dramatically the ability to
deliver crops to the global marketplace.
Last year marked the largest corn crop in history. However,
it is not just about growing more corn. It is about how we grow
it. On our farm, we are always looking at problems and trying
to find out new ways to address soil quality, cleaner water,
improvement in production and profitability. We are farming
sustainability.
All across the Country, corn farmers are involved in
numerous State, local and national programs, programs that
complement the goals of the Clean Water Act by protecting
environmentally sensitive land from crop production and
encouraging other on-farm conservation methods.
For example, the Farm Bill conservation program has
recognized unique abilities and the limitations of farmers. As
a result, we are making important environmental gains using
voluntary and, I will stress, locally led incentive-based
programs to reduce soil erosion, improve water quality and
increase wildlife habitat.
Corn growers believe that H.R. 2421 would fundamentally
alter the longstanding appropriate and beneficial use of the
term, navigable. This proposed legislation expands the
regulatory authority of the U.S. Environmental Protection
Agency, the U.S. Corps of Engineers in all interstate waters,
essentially all wet areas within the State including
impoundments, groundwater, ditches, pipes, streets, gutters and
so on.
Additionally, it grants EPA and the Corps authority to
regulate virtually all activities, private and public, that may
affect the waters of the United States, regardless of whether
that activity is occurring in or what it may impact the water
at all.
Likewise, 2421 would create significant new administrative
responsibilities without fully analyzing the implementation of
funding of such requirements.
The backlog permits has been estimated between fifteen and
twenty thousand with a time lapse of several years. So I ask
the Committee, how would they address the needs of a regulated
community when the already significant delays of today turn
into massive delays of tomorrow?
We are concerned that H.R. 2421 would eliminate the
existing regulatory limitations authorized by both Democrat and
Republican administrations, allowing common sense uses such as
prior converted cropland and waste treatment systems.
Furthermore, the savings clause does not exempt anything from
the broad definition of waters of the United States nor does it
capture exemptions found in statutory definitions such as
agriculture stormwater exemption.
Not all agricultural activities enjoy the benefit of an
explicit statutory exemption. For example, pesticide use is not
covered by the explicit statutory exemption. This extremely
important agriculture production activity can involve the
deposit or unintended drift of pesticides into areas deemed to
be waters of the United States.
Similarly, the application of fertilizer and other vital
farming activities may incidentally add material to the waters
of the United States and are not exempted by statute or
addressed in the savings clause.
Despite our opposition to 2421, we do agree that regulatory
clarity must be achieved. The Supreme Court recommended that
regulatory action consistent with its decision in Rapanos be
conducted. While Congress can always change laws, we note that
the Supreme Court did not cite in Rapanos a need for new
legislative meaning being given to the Clean Water Act
jurisdictional waters in order for such regulatory action to be
successful.
In our view, the job of Congress should now be to force the
Corps and EPA to follow through on the Supreme Court
recommendations to conduct a formal rulemaking, allowing all
affected parties to contribute to the process which would have
a goal of establishing clear Federal jurisdiction under the
Clean Water Act.
In conclusion, corn growers urge you to recognize the
significant problems that H.R. 2421 would create if enacted and
thoroughly analyze and discuss the consequences of this
legislation before moving forward. As it is currently written,
we have no choice but to oppose H.R. 2421.
Mr. Chairman, Members, thank you for the opportunity to
testify at this late time.
Mr. Oberstar. Thank you, Mr. Recker.
This is not really late for this Committee. We go much
later.
Mr. Shaffer.
Mr. Shaffer. Thank you, Mr. Chairman.
Mr. Chairman and Members of the Committee, my name is Carl
Shaffer. I own a farm in Columbia County, Pennsylvania, where I
raise green beans, corn and wheat.
As President of the Pennsylvania Farm Bureau and a member
of the American Farm Bureau Federation Board of Directors, I am
pleased to offer this testimony on behalf of over 42,000 rural
and farm family members of the Pennsylvania Farm Bureau. The
policy positions I will discuss and those included in my
written testimony are shared by more than six million members
of the American Farm Bureau Federation.
Mr. Chairman, farmers are no nonsense folks who understand
that words matter. It is clear to us that Congress intended to
use the term, navigable waters, when it passed the Clean Water
Act in 1972.
The bill we are discussing today deletes the term,
navigable waters, and deleting this term expands--it does not
restore--the scope of Federal regulation. This bill would sweep
many agricultural activities into the scope of Federal
regulation simply because these activities would occur near
some isolated ditch that would be deemed at water of the United
States. Furthermore, prior converted croplands would be
classified as Federally-regulated wetlands.
If that is the case, I would be required to get a Federal
permit to grow crops on land that I have been farming for three
decades. Surely, there are more productive ways to spend
America's tax dollars.
Pennsylvania has more than 83,000 miles of rivers and
streams, most of which are State waters. This legislation would
require a substantial increase in funding for the Corps of
Engineers. This bill is a call for bigger government.
How, under the current budget deficit, does Congress intend
to pay for additional regulatory enforcement or will more
unfunded mandates be passed on to local municipalities to
monitor and regulate Federal waters?
In Pennsylvania, stream health and aquatic rebirth are
improving each year. One of our largest dairy farms in the
State is a favorite trout fishing location of former President
Jimmy Carter. Spruce Creek, with its high quality cold water
fishery designation is an example of the environmental
stewardship and success already in place through agricultural
practices.
Next week, 16 Pennsylvania streams in 11 different counties
will be adopted as wilderness trout streams. Wild trout are an
excellent indicator of water quality and stream health.
In the 1980s, Pennsylvania gained more than 4,600 acres of
wetlands within the Chesapeake Bay Watershed. The State's
Department of Environmental Protection showed an increase of
2,500 acres of wetlands from 2000 to 2006. Today, more than
400,000 acres of wetlands are found through the Commonwealth.
Each year, the Keystone State has seen an increase in
voluntary nutrient management planning from fewer than 2,000
acres in the early 1990s to 1.3 million acres today. Farmers
are already good stewards of the land and the water without a
Federal mandate.
Moreover Pennsylvania's State Conservation Commission
implemented the dirt and gravel road program to reduce erosion
and sediment pollution. The program is based on the principle
that an informed and empowered local effort is the most
effective way to curb pollution. This effort stabilized more
than 1 quarter of a million square feet of streams at more than
1,500 sites across the Commonwealth since 1997.
Federal jurisdiction over these small streams would only
complicate an already successful program. Pennsylvania
successfully monitors and regulates water quality through more
than a dozen laws, regulations and initiatives, some of which
are outlined in my written testimony.
In December of 2007, I co-wrote an editorial with Secretary
Kathleen McGinty of the Pennsylvania Department of
Environmental Protection, discussing State regulatory
requirements that are effective for our unique geographic
location. Imposing a one size fits all regulation over 50
States will nullify or complicate productive State efforts like
the in Pennsylvania.
In January, DEP Deputy Secretary Cathleen Myers noted,
``Pennsylvania's Chesapeake Bay Compliance Plan requires 25
million pounds of nutrient reduction from our farmlands, nearly
5 times the reduction required of our sewage treatment plants.
Pennsylvania farmers are rising to the challenge, laying claim
to more than half of all the nitrogen reductions made by
farmers in the multistate watershed.''
Farmers and ranchers across the Country are already working
with State officials to meet water quality requirements. Adding
the Corp of Engineers or the EPA to the existing regulatory
equation is simply not an option. For these reasons, we oppose
H.R. 2421 and urge that it not be approved by the Committee.
We very much appreciate your interest on this issue and the
opportunity to submit this testimony. Thank you very much.
Mr. Oberstar. Thank you very much for your presentation.
Did you say that Pennsylvania farmers are accounting for
half of the 25 million pound reduction in nutrients?
Mr. Shaffer. In the Chesapeake Bay Watershed.
Mr. Oberstar. Pennsylvania farmers alone are accounting for
that?
Mr. Shaffer. Yes, yes, of the multistate watershed.
Mr. Oberstar. That is an enormous contribution.
Mr. Shaffer. And it has been done, I am proud to say,
through a lot of voluntary programs that we have actually
implemented and started on our own in Pennsylvania as farmers
of the State, the Keystone State.
Mr. Oberstar. Much of the problem, more than 70 percent of
the problem in the Chesapeake Bay is upland runoff in Maryland,
Delaware, West Virginia and Pennsylvania. If you have made that
contribution, that is very, very significant. Compliments.
I also thank you for the testimony from the Farm Bureau.
Last year, I invited the Farm Bureau to testify at our
hearings, and the president chose not to. I invited your
national legislative director; he chose not to testify.
Happily, Kevin Papp, President of our Minnesota Farm Bureau did
testify.
I will have some follow-up questions for you later.
Mr. Shaffer. Thank you.
Mr. Oberstar. Thank you.
Mr. Quinn.
Mr. Quinn. Thank you, Mr. Chairman, Members of the
Committee. We appreciate the invitation to be here and share
our views on the legislation.
My name is Hal Quinn, and I am appearing on behalf of the
National Mining Association.
I know it has been a long day for all of you, and you have
already heard ample testimony on the question of whether this
legislation.
Mr. Oberstar. We haven't heard everything, though.
Mr. Quinn. On the question of whether it changes or
restores the original intent or changes the intent, I don't
believe I am going to add to that well today. We will stand on
our written submission on that question, which we would agree
with the viewpoints of those who expressed earlier that we
believe it would change the intent that we see from at least
the text and the structure of the statute.
But I think what we heard earlier today is that clearly the
legislation, if enacted, would change the status quo as we know
it at this moment. In that regard, I just wanted to address two
concerns.
First, if it does change the status quo as we know it
today, what will the effect be on existing businesses and
landowners who have made investments, planned activities and
taken action on those activities under a different
understanding of the law than might appear in this legislation
if enacted?
Will those investments be protected? Will they be
grandfathered? How will those situations be accommodated and
can they be accommodated under the law?
Second and probably more important to us today is if it
does change the status quo, we will certainly see greater
pressures placed on the existing permitting infrastructure
under the Clean Water Act program. In that regard, we have
already seen an overburdened system that, because of delays in
terms of obtaining reasonable decisions in reasonable
timeframes, erodes confidence in the process and is simply
unresponsive to the demands placed on the program.
The permitting system is expensive and is protracted. In
terms of expense, the expense is not that simply in terms of
gathering the data and submitting an application. Also the more
significant cost, particularly to capital-intensive industries
like the ones I represent, comes from the delays in obtaining
permissions and authorizations to proceed.
For every delay in receiving those authorizations or
permits, we lose net present value in our investment because
our return on that capital is deferred, our employees are idled
and, at that point in time, we have to reconsider. Both
investors and others have to reconsider where they deploy their
risk capital in terms of not only this Country but in other
countries as well if they present a lower regulatory risk.
Now assuring a responsive permitting system requires
substantial investment of public resources just to meet the
current demands on that process, let alone ones that might be
increased or engendered by changes in the law. In addition to
providing more resources, we think that system, the permitting
system can be improved and become more efficient by identifying
and seizing upon opportunities for permitting efficiencies.
One of the goals of the Clean Water Act that is often
overlooked is to prevent needless duplication and unnecessary
delays. We believe there are opportunities that exist where
there are other overarching environmental laws and regulatory
programs that already require certain industries or businesses
to examine and address the effect of their activities on water
resources.
We have provided as part of our testimony at least two
examples of where we think this duplication exists, and as a
consequence there are opportunities to coordinate those
particular programs better so that we can avoid needless delay
and duplication of trying to protect the same resource by
collecting data, the same data different ways but really for
the same purpose.
I bring with me today, and I apologize for the size of the
exhibit, Mr. Chairman, but this is a photograph of a permit
application put together three years ago for a coal mine in
Congressman Rahall's district. This is a combination of what we
call our SMCRA, surface mining and reclamation, permit that has
extensive data and analysis on the impact of our operations on
both surface and groundwater in the surrounding watershed as
well as the Clean Water Act 402 permit and the Section 404
permit and the State 401 water quality certification.
I can assure you there are a number of items within these
binders and data that are duplicative. Perhaps if these
programs are coordinated, we could be relying on certain data
and certain decisions made by certain regulators for the
purposes of making decisions under other programs.
As you can see from the size of this, just moving these
permits around is an occupation hazard in itself, but this is
just to point out that we think there are opportunities to make
the process more responsive to the regulated, not maybe in all
cases but in certain cases.
Let me just conclude with the observation, we know that
this legislation is motivated by the desire to restore and
maintain the integrity of the waters of our Nation, and we
share that goal. We just question whether before we proceed to
expand the law's reach, whether greater attention ought to be
brought first, and the greatest threat to that goal might be a
nonresponsive and inflexible permitting system that is
incapable of bringing reasonable decisions in reasonable
timeframes to the people who are subjected to the law.
I thank you again for your attention to this matter at this
late hour.
Mr. Oberstar. Thank you very much, Mr. Quinn. I appreciate
that graphic you presented. I will come back to that in a
moment after the other testimony.
Mr. Gerber.
Mr. Gerber. Thank you, Chairman Oberstar and Members of the
Committee for inviting me to testify before you today and also
for sticking around so long and bearing with us all.
My name is Darrel Gerber. I am the Program Coordinator for
Clean Water Action Alliance out of the Minneapolis, Minnesota
office. We are the largest membership-based environmental
organization in the State. We are also a part of Clean Water
Action, a national organization with over a million members.
Our primary mission is to ensure that we have clean and
safe water now and into generations to come. We do this by
organizing. Whether it is people at the grassroots level,
coalitions or broader campaigns, we organize to protect
people's environment, health, economic well-being and community
quality of life.
The Clean Water Restoration Act has been a priority issue
for Clean Water Action's grassroots policy and mobilization
campaign since it was first introduced. Since then, our members
have sent hundreds of thousands of communications to Congress,
asking or actually urging for passage of the Clean Water
Restoration Act. In our work with over a million members in
more than 20 States, people tell us that passing the Clean
Water Restoration Act is the right thing to do.
Today's hearing is a critical junction for the Clean Water
Act. The important question before you today is do we want to
throw out 35 years worth of progress in cleaning up our waters
or do we want to continue working to make our waters fishable,
swimmable and drinkable?
The people we talk to across the County and even those in
independent polls resoundingly state the cleanup must move
forward.
Unfortunately, through the actions of the Supreme Court,
the EPA and the Corps, we are moving backwards. Fifty-nine
percent of the waters nationally are at risk of losing
protection under the Clean Water Act. EPA's own estimates show
that drinking water sources for over 110 million people are at
risk to pollution due to the reduction in waters covered by the
Clean Water Act.
Protections for our waters are being eroded by Federal
policies put in place since 2003 in response to several Supreme
Court decisions. The Supreme Court in SWANCC and Rapanos
misread the law and congressional intent as to what waters
should be protected. This, coupled with the lack of clear
consensus offered by the split Rapanos decision, a decision in
which there was no majority opinion on waters covered and, even
worse, where the opinion of a single justice with no other
concurring justices has often been interpreted to carry the
day.
Besides that, the test that Justice Kennedy created, the
significant nexus test, offers no clarity as to what waters the
Clean Water Act covers.
Recent EPA and Corps policies and guidance have created an
even further fog of confusion and have gone beyond what the
Supreme Court ruled in order to restrict even further the Clean
Water Act coverage. An example of this fog of confusion is a
lake in western Minnesota. There, the confusion over what the
Clean Water Act protects led to an obviously incorrect
determination by field Corps staff.
If you go about 35 miles east of Fargo, North Dakota, which
is on the western border of Minnesota, along Highway 10 you get
to Boyer Lake. This is a 310-acre lake, has a public boat ramp
on the north side and is a popular fishing lake where you can
get bass, bluegill, northern pike and walleye. The Minnesota
DNR periodically stocks the lake with hundreds of thousands of
walleye, yet this lake was found to not fall under the scope of
the Clean Water Act.
Quick actions fortunately led to a reversal of this
decision, but the fact that it occurred at all indicates that
there are clearly problems on the ground trying to determine
what the new EPA and Corps policies mean. The reversal is good
news for Boyer Lake, but at the same time the Corps is still
trying to determine if the Clean Water Act programs apply to
Bah Lakes, a similar lake only 85 miles away.
We have already heard about the impacts of flooding around
other parts of the Country, and Minnesota of course is no
stranger. Whether tragic like those in the southeastern part of
the State last fall or not, they generally prove to be
devastating to those who live, work or own property nearby.
There were also other severe droughts across the Country
last year. Lake Lanier in Georgia dropped to astonishingly low
levels. Lake Superior, up by us, was lower than it has been
seen forever. Parts of the West have also experienced extended
multiyear droughts.
What we are learning about the impacts of global warming is
that we can expect this to occur even more. Global warming
changes our water cycles which will contribute to more intense
and heavy rainfalls and deeper droughts. We also know that many
of the hydrological features now excluded or threatened to be
excluded from protection are the very same natural features
most necessary to lessen the impacts from this flooding and
drought.
Clean Water Action members know that restoring protection
for all of our waters is important and look to Congress to take
action by passing the Clean Water Restoration Act. Now, more
than ever, we need Federal water protections that meet the
original goals of the Clean Water Act to ensure that our water
is fishable, swimmable and drinkable.
Thirty years from now, we want to be able to look back on
this day and this time and be able to say Congress stopped the
erosion of clean water protections and got back to the
important business of restoring and maintaining clean water for
all.
Mr. Oberstar. Thank you, Mr. Gerber. We greatly appreciate
your testimony.
Ms. Runbeck, thank you for your patience throughout this
long day.
Ms. Runbeck. Well, thank you, Mr. Chairman, for the
invitation and the opportunity to present on the Clean Water
Restoration Act. I certainly admire your stamina. You have
undertaken many, many complex issues in this current session
and are doing a wonderful job.
But, yes, my name is Linda Runbeck, and I am with the
American Property Coalition. I am also a former State Senator
from Minnesota.
For the benefit of those who don't know some of our
activities, we have been out doing workshops and town hall
meetings about the Clean Water Restoration Act and informing
people about what it proposes to do, and so I am here to
express really the concerns of sort of average middle Americans
about this bill.
These are the people that have most of their net worth tied
up in lakes and lots and land and homes and acres, and so they
do fear that this bill is a direct threat to them. I have to
agree. I believe that it is.
Certainly, they will pay and pay dearly. They are going to
pay in lost values. They are going to pay in lost production
capacity. They are going to pay in excessive legal fees to
protect their right to use their land as they see fit.
Keep in mind, these are not people that have staffs of
lawyers, for the most part. They don't comb through the specs
and the regs. So these are people like most of us.
I encourage you, as you put this legislation together, to
please consider average Americans and to take a look at how
this will affect them. Perhaps it is time to put a few words
pertaining to education, pertaining to training and technical
assistance. I think certainly after all these years of the
Clean Water Act, it is time to take a little friendlier
attitude towards the people that it regulates, especially now
if it is going to be far more expanded and the regulators as
well.
But I do believe the bill has morphed into a national land
use control act, and that is certainly a result of the words,
activities affecting these waters. Everything and every body
exists in a watershed, and therefore there isn't much that
escapes this law. It certainly does expand government's reach
far beyond the physical boundaries of water bodies and buffers.
I think it is important to realize that an activity does
not have to take place in water in order for it to be
regulated. I think it is also important to think about the fact
that waters can be affected directly or indirectly. I don't
know that those words have been talked about too much, but
certainly then an activity that takes place on a hilltop or a
mountaintop 25 miles from a water could very much be under
regulation, and the Federal Government would and could stop
those activities. So I think there are very real concerns.
We did provide a map, and I guess those are on the
overheads, just to show sort of illustratively the difference
between the existing law and H.R. 2421. As you can see, H.R.
2421 becomes virtual, total control by the Federal Government,
and that has been pretty well covered today, I would say.
We have heard a lot about the confusion in the law, and I
would just add that certainly what it means for those, again,
who are regulated is that the line, the certainty that they are
hoping for in the statute is absent. I think what a vague law
means, and hopefully Congress will not pass such a law, is that
the litigators representing various special interests are going
to use their citizen lawsuit opportunity and forcibly expand
and broaden the scope of the Act.
So there is too much that can happen after it leaves your
hands, and we would urge you not to allow that to be.
Just a real quick point on how I think the bill destroys
incentives for those people who love habitat and have wanted to
create wetlands. We have a lot of those folks in Minnesota. I
think what we will find and we are finding, in fact, is that
activity is fraught now with catch-22s and enormous costs that
pretty much then discourage anybody from thinking about
creating a wetland habitat.
We have seen polls over the last few months that show that
there is very little public support for expanding the Federal
Government's control over land and waters, and I will just cite
the National Center for Public Policy Research, a very nice
piece of polling. They gave very explicit descriptions of the
pros and the cons, and yet 54 percent of Americans, we could
say if we extrapolate, said that they would oppose this bill.
You look regionally and find out that in New England, 58
percent oppose it; in the Farm Belt, 59 percent oppose it; in
the mountain States, 62 percent would oppose it.
I think the poll is one thing, but I think most people do
not realize that the Federal Government is actually considering
regulating nearly dry land, and this is an example. This is
from Kanabec County in Minnesota, and this is a wetland. This
gentleman is spending $160,000 to date to do some. He wants to
put an RV site on his wetland, and so far he has no decisions
made. So there is an endless bureaucratic morass that exists
even now.
The American public probably does not understand that this
is what is to be regulated, virtually, except for a couple
days, a couple weeks of the year, dry land.
One more point that I will quickly make is that we are
getting assurance that there are clauses that are going to
protect the exemptions in ag as well as silviculture. In
Minnesota, I just want you to know that now an NRCS permit must
be also accompanied by a WCA permit. That is Minnesota's
Wetlands Conservation Act.
You have situations where the NRCS permit is approved, but
the WCA permit is denied. So the State law is overriding some
of those exemptions.
Finally, Mr. Chairman, I would urge you to develop a
bipartisan solution. I know in Minnesota when parties,
differing parties, reach log jams, good folks like Senator Doug
Johnson would say: Get together. Don't come to us until you
have a bill you all agree on because we are not going to waste
our time on these kinds of very partisan differences. Work them
out yourselves.
So I would urge you to get the parties together, come up
with some resolutions similar to what we have talked about
today, and please don't forget that I think now, 35 years after
the Clean Water Act, people have become such advocates and fans
of wetlands, of clean water, of local initiatives, of putting
in vegetation on their shorelines to prevent fertilizers and so
on from entering land. These are community projects now. The
voluntary efforts talked about here are everywhere.
I don't think we really need the command and control system
that this bill continues to use and probably should not, given
the much smaller areas now that would come under this scope,
smaller areas of impact and land and water bodies.
Thank you very much, Mr. Chairman.
Mr. Oberstar. Thank you for your contribution, for your
comments. I can just about picture where that photo was taken.
Ms. Runbeck. I am certain you can.
Mr. Oberstar. Mr. Boozman had a pressing commitment to
make, and he has been very patient. I want to recognize the
gentleman.
Mr. Boozman. Well, thank you very much, Mr. Chairman. I
have about 25 people that journeyed from Arkansas to see the
pope.
Mr. Oberstar. There are going to get you instead.
Mr. Boozman. Yes. I told them that I would meet them at
6:30, and they are about worn out. So, anyway, I have another
event I have to run too, but I want to thank all of you for
your testimony.
I also want to thank you, Mr. Chairman and Mr. Mica. The
hearing today has been very, very good. We have had a broad,
very diverse group of people testifying from all walks that
represent this and truly from just all kinds of viewpoints
which is very, very valuable. So I really do appreciate it. It
has been very, very helpful to me.
I really appreciate you, especially. I am leaving now. I
appreciate your hanging in and being so patient, but it really
is important that you are up here. So, thank you very much for
making the trip.
Mr. Oberstar. Thank you, Mr. Boozman, for your
participation throughout the day and for your diligent
attention to the specifics and the testimony of all the
witnesses.
Mr. Salazar.
Mr. Salazar. Mr. Chairman, I have to reiterate what Mr.
Boozman said. I am amazed at your stability and strength. I
think you are the only Member of Congress that can run 12 or
14-hour Committee hearings, but we applaud you for that, sir.
It must be your biking.
Let me just tell you, Ms. Runbeck, I just notice a comment
that you made about making this a bipartisan bill. I can assure
that water is not a partisan issue.
Mr. Recker, Mr. Shaffer, Mr. Quinn, I sympathize with
exactly where you are coming from. I am a farmer, and I also
have the same concerns, but I also have to applaud the Chairman
who has actually given us this opportunity to be able to
discuss something.
I would urge all of us, instead of just saying no, to just
say how can we work together to make this better for all
Americans?
This issue is an issue of jurisdiction, I believe. It is an
issue of the expansion of the current law. Some believe it is
not; some believe it is. And so, what I would urge you to do is
to submit your comments as to how we can make this an issue
that we can all digest.
I share, Mr. Shaffer, the same issue as you do. I farm
3,000 acres back in Colorado. I have never had to request a 404
permit or anything like that to irrigate my meadows.
But, please, this is what I ask. Let's work in a
cooperative manner. This isn't a partisan issue. Everyone
drinks water, Democrats and Republicans alike, and we all want
clean water.
I think I agree with you, farmers are the best stewards of
the land in my opinion, but let's try to figure out how we can
work in a bipartisan way.
So, thank you, Mr. Chairman, and I applaud you once again.
Thank you so much for allowing us to have this hearing. I know
that in December you had some concerns about it, and you were
gracious enough to open this up to not only the proponents but
the opponents of the current legislation.
Thank you so much.
Mr. Oberstar. I appreciate that very, very much. I would
say we would have had the hearing sooner, earlier in the year,
had I not had to have a hip replacement.
I think the program has the same kind of congestion in it
that my hip, my former hip had, a lot of old growth of
arthritis. It has been removed and a new part, a 40-year part
installed. I have done 92 miles on my bicycle since then, and I
am going to keep on going.
I am refreshed and renewed and ready for the rest of this
and the coming session.
Mr. Salazar. A 24-hour hearing?
Mr. Oberstar. No, no, no, not 24-hour hearings. No. The
latest on record was the hearing I held several years ago on
smoking aboard aircraft. We started at 11:30 and went until
midnight. The longest total hours was our Deepwater hearing
last year where we found the misdeeds of the Coast Guard and
corrected those.
Mrs. Napolitano.
Mrs. Napolitano. Thank you, Mr. Chair.
I have a couple of questions, and I am not sure whether I
should defer them because I agree with my colleague, Mr.
Salazar. I wasn't here for the early part of your session, but
I have been at your sessions where they go for a few hours, and
I can tell you that it brings out a lot of information that I
need to be able to continue working with my colleagues and, of
course, with my district.
I know that he has held numerous workshops with us, asking
us to go back to our districts and get input and bring it back
so that it can be a better bill. So I applaud him because very
few Chairs that I know actually continue to seek information
and to get that input so that becomes a bill that is palatable,
that is workable and that is beneficial to all.
Mr. Chair, I thank you for that.
Now for the question: Mr. Recker, in your testimony, you
refer to Congress' clear intent in its use of the term,
navigable, in statute. In your opinion, what is your
interpretation of what Congress' intent is in using the phrase,
waters of the United States?
I had a problem with that too in the beginning? In the
statute, Section 502.7 is specifically there defining the
phrase, navigable waters to be waters of the United States.
Mr. Recker. I look at it as making a determination between
navigable and all waters of the United States. That is how I
interpret it.
Waters of the United States is waters of the United States.
Navigable waters are specific, and I interpret the other as all
waters.
Mrs. Napolitano. Okay, because in going back with some of
my water people--as I call my sanitation districts, the water
basins--especially sanitation had an issue with and some of the
cities with the possible interpretation and possible litigation
necessary to be able to defend some of what might be construed
as a violation of those waters in terms of pollution, if you
will.
Mr. Shaffer, while Pennsylvania may have the ability to
protect its own waters, does it have the ability to promote
water quality protections in the other States such as Ohio, New
York, Delaware, New Jersey, West Virginia or Maryland?
In addition, Ohio and West Virginia are no more stringent
States. If they have lower water quality standards than
Pennsylvania and some of the waters come into your State, what
implications for Pennsylvania water quality would you face and
what could Pennsylvania do about it?
Mr. Shaffer. Well, we have a pretty good working
relationship. For instance, we have what is known as the
Susquehanna River Basin Commission which includes New York and
goes right on down to the Chesapeake Bay. So that is a
commission that constantly works with all the partners, all the
States, in trying to work together and to develop water quality
issues. That would be one example I would give you.
Then in the western part of our State, the Allegheny River
Basin, there is also a commission down there where it has to do
because in Pittsburgh, the three rivers all come together. So
it is----
Mrs. Napolitano. A working relationship?
Mr. Shaffer. A working relationship, yes.
Mrs. Napolitano. So there is no issue there for being able
to have some kind of implication?
Mr. Shaffer. We, I say farmers and agriculture, have a
voice on the Susquehanna River Basin Commission. They reach out
to us, so we can discuss our issues simply like I came here
tonight to explain from my point of view as a farmer how this
would affect different things.
Therefore, in the Susquehanna River Basin Commission, for
example, we are able to have our input, so we can work out for
the best quality solution for everybody.
Mrs. Napolitano. Thank you, sir, and thank you all for your
patience.
Thank you, Mr. Chair.
Mr. Oberstar. Thank you, Mrs. Napolitano.
Mr. Carney.
Mr. Carney. Thank you, Mr. Chairman. Once again, I stand in
awe of your ability to last through these things. I remember
the FAA hearing we had a couple weeks ago, pretty remarkable. I
truly believe you will probably have to get your 40-year hip
replaced again.
My questions are for Mr. Recker and Mr. Shaffer primarily.
First of all, Mr. Recker, how far are you from Backbone
State Park?
Mr. Recker. I went to Starmont School. I graduated from
Starmont. So it is part of the school district, and I know it
well.
Mr. Carney. I graduated from North Lynn. I played football
at Starmont a lot.
Mr. Recker. Great, and I played against you.
Mr. Carney. Yes, I know. So, here it goes, buddy.
[Laughter.]
Mr. Carney. This is for both Mr. Shaffer and Mr. Recker.
What kind of relationships do you have with your State's
environmental regulatory agencies? Are they good ones, bad
ones?
Mr. Recker, first.
Mr. Recker. Yes. I work with four watersheds that have kind
of a new concept, and it is taking ownership of that watershed
and empowering the farmer because we think that the landowner
or stakeholder knows exactly what should be done with the help
of county commissioners, with DNR and with Federal help with
technical assistance. So we bring them, all the stakeholders,
together.
The amazing thing is when we draw the line around the map
and we tell that farmer, you are part of that watershed, the
Maquoketa Watershed, farmers that have been farming for 50
years didn't realize what the name of their watershed is. Once
they know they are part of a group and they actually can do
something collectively, it is amazing what takes place.
The first question they want to ask is, what is the
impairment and how do we fix it? That is their attitude.
So, yes, in Iowa, we work very closely, and we encourage
working together with every agency.
Mr. Carney. Mr. Shaffer?
Mr. Shaffer. In my testimony, I indicated some of the
things that we do, but here are some other things.
We started a program with our Department of Environmental
Protection. It is a coordinator program where if someone is
reported to the department, a farmer is reported to the
Department of Environmental Protection by someone, rather than
the DEP person being the first line out to the farmer to tell
them they have to straighten out, we have a farmer within that
area that will go to his neighbor and say, hey, listen, you
know you have a problem here. You really ought to correct this
and get it straightened out.
Now, if they refuse to do it, then it is out of our hands.
But a lot of times we find that approach, hearing from another
farmer, is less intrusive than if you hear somebody from
enforcement, and it has really been a success. I mean we got a
lot more accomplished and cleaned up the environment a lot
better than if we have to go through the regulatory agency
every time.
Also, we developed an ag advisory board to our Department
of Environmental Protection that meets once a month, and it is
a group of farmers. By statute, they have to have the
opportunity to comment on any one of the department's
regulations that has to do with agriculture.
Now the department doesn't have to listen to them,
naturally, by comment, but at least it provides the Department
of Environmental Protection all the information possible
because I truly believe the more information you have, the
better the decisionmaking process will be.
So I think and as I said with Kathleen McGinty, our
Secretary of DEP, we co-authored an editorial letter together,
stating how much progress agriculture has made in the cleaning
up and our contribution towards cleaning up of the Chesapeake
Bay.
Mr. Carney. That is good.
As you know, the Susquehanna River runs through almost all
of the counties in my district in Pennsylvania. So I consider
it kind of our river actually, and your efforts are very much
appreciated. I am very proud of what Pennsylvania has been able
to do for its part for cleaning up the waterways.
Can you talk about the farmers' willingness to manage the
nutrient management program in Pennsylvania and what farmers
are specifically doing to implement the plan voluntarily? Can
you talk about that a little bit?
Mr. Shaffer. We started that. I am proud to say we are
ahead of the curve. We started that several years ago,
introducing a nutrient management plan.
As a matter of fact, after 10 years, we went over it again
because technology and science had showed that phosphorus could
be a problem as well. So we included phosphorus.
What the nutrient management plan has done is provided for
the amount of animals you have, there is a number given to
that. You need X amount of acreage, for instance, to apply the
nutrients from those animals. Therefore, you have to show that
you are only applying the amount of nutrients that a crop can
be taking up. So that has been a very successful plan.
We have implemented that years ago because, listen,
understand one thing. What people miss is the land, the water
are our tools. We need the land and the water. We need good
land, good water to keep farming and stay in business. Our
farmers realize that.
Therefore this being proactive and voluntary with these
nutrient management plans, it has really been a success story,
I am proud to say.
Another thing in agriculture, one thing about farmers, they
are very proud of accomplishments. They feel they have to
accomplish something. What I have a concern of something like
this is if you keep moving the target on them, they get very
frustrated.
In other words, they have a plan. They see what they are
trying to attain. If you keep having a moving target, it really
frustrates them and their willingness to accomplish what they
need to do.
Mr. Carney. I thank you for your testimony.
Mr. Chairman, I will have another round of questions.
Mr. Oberstar. Thank you.
Ms. Runbeck, you mentioned a poll or several polls you
discussed. I don't want to have dueling polls, but the
Associated Press, this recent March, mid-March, conducted a
poll on citizens' concerns on environmental issues. Pollution
of drinking water was named the number one issue by well over
53 percent and others go down the list.
I don't want to legislate by poll, but I do want to say
that citizen concerns about clean water are very high on the
list of the anxieties that people feel about the world in which
we live.
You also suggested that if my bill were enacted, there
would be a bureaucratic morass. We have one right now in the
aftermath of Rapanos and SWANCC. There are 30,000 permit
applications pending with the Corps of Engineers. There is an
average three-month waiting period for each permit, which is
substantially up compared to what it was prior to Rapanos and
SWANCC.
We need to reduce the backlog that exists, and I propose
that the current state of uncertainty about the law is creating
this bureaucratic backlog and complexity for the Corps of
Engineers. We don't have enough people to process the existing
permit applications which they were able to process rather
readily prior to SWANCC and Rapanos and approved 99 percent of
permit applications submitted.
But let me come to, I think, your concern--although you
weren't this specific about it--that deleting the term,
navigable, from the places where it appears in the current
Clean Water Act would expand its definition.
Suppose I just leave in place, navigable water, where it
appears but attach to it the specific application by regulatory
proceedings of the Corps and of EPA, as I have expressed
earlier in the day. Does that allay your concerns?
Push the button on your microphone, please. I want to hear
every word.
Ms. Runbeck. Actually, I think the big fear is not so much
necessarily the definitions of water because I think States
have inched toward those definitions. It really is the
activities affecting those waters.
Mr. Oberstar. You mean the word, activities, as it appears
in the introduced bill?
Ms. Runbeck. Right, right.
Mr. Oberstar. Is that the specific term?
Ms. Runbeck. That is an entirely new, never before
regulated area of concern.
There is an infinite number of questions about who is going
to decide and what is the nature of this activity and how it
affects the water. Does it happen over time? Does it happen
under what conditions and who is going to do the regulation?
There are just many, many questions, and I would suspect it
would.
When I spoke to one Corps of Engineers official because I
said, well, how much more time and how much bigger workload
will that require of you agency?
He said, I don't know. Ask the EPA. It won't require any
new work from us, but ask the EPA.
So it is a matter that is quite undefined.
Mr. Oberstar. I asked that very question earlier in the day
of EPA and of the Corps of Engineers and asked them
specifically to address the current regulations, and I
specified which ones, that would be covered by the term,
activities. They allowed as how they could be very clear about
what is meant by activities because they have been regulating
them for the past 30 years.
So we will get the Corps and the EPA definition and be glad
to share that with you and get your comment on it.
Ms. Runbeck. That would be fine.
I think just to sort of fill in a gap here, I am watching
the wetlands rulemaking in Minnesota, and they are looking at
the same issue. You know there is much discussion about this
term, direct and indirect impact. So it just a little different
way of phrasing it, but it is a wide open door, it does appear,
to litigation, to uncertainty.
I mean how is anyone to know, short of having these
specifically defined? I wouldn't imagine you would really want
to because that is too limiting too. It is a difficult area.
Mr. Oberstar. I think the thrust of testimony throughout
the day has been: Give us more clarity in the application of
the law. Give us more specificity.
I am moving in that direction through the hearing process.
We are getting much more specific issues raised.
Mr. Recker, let me ask you, in what ways have your farming
activities been affected post-SWANCC and Rapanos compared to
regulation, pre-SWANCC and Rapanos?
Mr. Recker. I can probably safely say that there haven't
been changes to it that I can speak of right now.
Actually, I can tell you, though, for the last 20 years
since I have been farming, 22 years, that we have continually
increased the amount of conservation that we use on our farm.
That has been voluntarily led, with government programs but
voluntary on my part, to say we want to do the right thing
because we want to have clean waters.
In northeast Iowa, we have some of the best trout ponds,
well, trout streams anywhere. So we are very conscious about
what happens to our waters.
I can say I have seen no regulation, and I would not want
to see.
Mr. Oberstar. Do you have any pending permits that you have
had to submit for the Corps of Engineer?
Mr. Recker. No.
Mr. Oberstar. Or the EPA?
Mr. Recker. No.
Mr. Oberstar. Mr. Shaffer, have you had any?
Mr. Shaffer. No. No, sir. I don't have any.
Mr. Oberstar. So the application of the Clean Water Act has
been true to its stated language to exempt normal agricultural
activities.
Mr. Shaffer. Up to this point.
Mr. Oberstar. You have not been subject to any permitting.
Mr. Shaffer. Right, right.
One concern I would have, just to elaborate on what Mr.
Recker said, is the EQIP program has been a very successful
program where cost shares have gone to farmers for conservation
practices. Our farmers in Pennsylvania utilize that program
wherever possible to help improve the environment.
Now, if we have to go to the Army Corps or EPA to get a
permit to put some of these practices out there, I think it is
going to have more of a deterrent for farmers.
Mr. Oberstar. But that is my point, if you haven't been
subjected to a permit up to now.
Mr. Shaffer. No, not up to now. No.
Mr. Oberstar. Then the language that continues this
exemption remains in place and continues your exemption. Yes?
Mr. Shaffer. From what I have read and I am told, now
understand, I am just a farmer. I am not a legislator or a
lawyer, but it is my understanding that wherever there is a
gray area--and I think I have heard enough today that there is
a gray area--usually it turns around to bite me.
With all due respect, that is what I am concerned about,
that is not very, really explicit enough, that it will be left
up to somebody else's interpretation, and that is my greatest
fear of that.
Mr. Oberstar. All right, you tell me whether this is gray.
Nothing in this Act, including any amendment made by this Act,
shall be construed as affecting the authority of the Secretary
of the Army Corps or the Administrator of the Environmental
Protection Agency under the following provisions of the Federal
Water Pollution Control Act, the Clean Water Act of 1972.
Nothing in this Act shall be construed as affecting the
authority--that is not gray. That is very clear, isn't it?
Shall be construed, not shall be attributed. You can't
imagine something. Nothing shall be construed. That is very,
very clear, specific, binding legislative language. I have been
writing legislation for 34 years, and I know that it is.
Relating to the discharges of stormwater from oil, gas and
mining, Mr. Quinn, operations and related to discharges of
dredged or fill materials from normal farming, silviculture--
that is timber harvesting--and ranching activities. Pretty
clear and specific, isn't it?
Nothing shall be construed as affecting the authority under
the provisions of the Act.
That has been in place since 1972, and you have not had to
file for a permit. Mr. Recker hasn't had to file for a permit.
We say in this language, you won't have to do it in the future
either.
So it can't be a gray area. It can't be misconstrued. It is
very specific.
What is gray is now there is a Kennedy test. There is a
Scalia test. There is a question mark test. And, there is a
great deal of uncertainty, although they, the judges, have
stayed away from farming and ranching activities. They didn't
mess with that in the basic law.
But I want to ask you about the prior converted farmland.
Although the Clean Water Act does not refer to prior converted
farmland, the practice has been to treat land that is farmed
under those provisions that I cited, that are in the 1972 Act
as exempt from permitting, from regulation.
Once farming stops, once the farmer ceases to farm the
land, sells it for a subdivision, for housing, for a shopping
center, it then becomes subject to the permitting provisions of
the Clean Water Act. Do you have a problem with that?
Mr. Shaffer. Yes, sir, I do.
Mr. Oberstar. It is not going to be used for farming now.
Mr. Shaffer. I understand. But understand, in the first
place, I think in 1993, President Clinton promulgated an
exemption for prior converted cropland regardless of the use.
Now, understand that a lot of farmers are land rich and
cash poor. Their whole assets are tied up in their land. If
they are not able to pass that along to their children or
whatever, that is their retirement. To devalue the land that
way would have a great hardship on a lot of our farmers that
might depend on that for their retirement.
Mr. Oberstar. I have discussed with Soil Conservation
Service representatives in the State of Minnesota in my
district and elsewhere around the State. That is the way the
law has been interpreted in Minnesota, and the SCS people tell
me that sales of farmland have not been diminished because that
land no longer has the protection of farmland. The value of
land does not diminished because of that.
Mr. Shaffer. Well, I can assure you in Pennsylvania, if the
land returns and gets a wetland designation, it reduces its
value considerably.
Mr. Oberstar. Do you think then a shopping center should be
exempted from the provisions of the Clean Water Act as farming
activities are?
Mr. Shaffer. No. What I said was_
Mr. Oberstar. If that farmland is sold for a shopping
center, do you think the exemptions should continue? Is that
what you are advocating?
Mr. Shaffer. No.
I think a point should be made. The State, as I said in my
testimony, we have, every year, increased net gains in
wetlands. Our biggest destroyer of wetlands in the State of
Pennsylvania is the Department of Transportation. They are the
biggest ones.
We have implemented different activities where we can buy
into a pool. So, if you are destroying a small acre of a
wetland, maybe you can buy into a pool that would create five
acres of wetland to offset it, for example.
Mr. Oberstar. That is separate from the question that I am
asking.
Mr. Recker, do you have a comment on that?
Mr. Recker. You were talking about a shopping mall. Should
you build on a wetland?
Mr. Shaffer. That is where I am confused.
Mr. Oberstar. No. I am saying if farmland, prior converted
farmland, it has been operated as a farm and no longer is going
to be operated as a farm. It is going to be sold to a developer
who is going to put a shopping center in there or a housing
development in it.
That is happening all through the south part of my
congressional district. Farmland is being sold. Soybean fields
are no longer pushing beans. They are pushing up houses.
Should that exemption continue?
Mr. Recker. Just an example that I would give is I actually
had a project that was a wetland, that was farm ground. They
decided to make it into a baseball diamond. Permitting went
very quickly, and we were able to utilize it for a baseball
diamond.
Mr. Oberstar. So then you find no problem?
Mr. Recker. Well, I am not sure if I find any problem. If I
had that ground as farm ground, I would not be able to use that
for land use of that. I couldn't. I couldn't put farming
practices on that wetland and actually be able to farm that,
but we were able to put a baseball diamond actually in that
particular property.
Mr. Oberstar. Whether you converted to a farm is a
different issue from the one I am posing of whether farmland,
which is exempted from the provisions of the Clean Water Act,
converted to other activity should lose its exemption.
Mr. Recker. No.
Mr. Oberstar. You don't have?
Mr. Recker. Well, I don't, but prior converted in my mind
was ground that was once deemed as wet or hydric in soils.
Mr. Oberstar. And converted to agricultural purpose.
Mr. Recker. Actually because of drainage.
Mr. Oberstar. Yes.
Mr. Recker. Under subsurface drainage, we were able to
improve it.
Mr. Oberstar. Right.
Mr. Recker. So, once that has been improved and it should
not have to revert back to a wetland, no matter what the use
is. It has been improved. It is no longer a wetland.
Mr. Oberstar. But the exemption is for farming activity.
The exemption in the law is for farming activity. That is the
current law. That has been since and, in fact, before 1972.
If it loses the character of farmland, should it also lose
the exemption? You might want to think about that.
Mr. Shaffer. Would I be allowed to give testimony regarding
that?
Mr. Oberstar. Pardon me?
Mr. Shaffer. Would you mind if I submitted further written
testimony regarding that?
Mr. Oberstar. I said, think about it. Think about it and
get back to us.
Mr. Shaffer. I would appreciate that.
Ms. Runbeck. Mr. Chairman?
Mr. Oberstar. Yes, Ms. Runbeck.
Ms. Runbeck. If I could, just a comment on prior converted
wetland and the experiences where I am noting in Minnesota,
those exemptions seem to be sliding away. The new AD-1026 form
which the farmer signs to get their ag subsidies has been
changed, and now you sign. When you do sign it, you are
authorizing a wetlands redetermination.
Some of these redeterminations now are returning land. They
are now acres and acres of wetlands. So it does seem to be.
Mr. Oberstar. Aren't those, as I understand it, lands that
are under State law, not covered by the Federal law?
Ms. Runbeck. No. These are farmed wetlands. I mean farmed
croplands that have been farmed for decades.
Mr. Oberstar. You mean EPA departments are changing the
permitting?
Ms. Runbeck. Yes.
Mr. Oberstar. I would like you to submit some specific
evidence of that. That would be very useful for our purpose.
Ms. Runbeck. Okay, I will do that.
Mr. Oberstar. Now, turn a corner and say if we retain the
language in current law, rather than delete it as my introduced
bill would propose, to go back to the pre-Rapanos and SWANCC.
If we retain the term navigable waters, but attach to it, to be
very clear about what is to be covered and protected, the
regulatory activities of the Corps and of EPA specified in the
law, specifically referenced in the law, to make it clear that
the term, navigable waters, applies in the way, pre-Rapanos and
SWANCC, that the Corps and EPA applied them, would that be
acceptable to you?
Mr. Shaffer. To be perfectly honest with you, as I said, I
am not a legislator or a lawyer and, if you allow me to, I
would like to respond to that in writing after seeking some
counsel on it.
Mr. Oberstar. That would be welcome.
Mr. Shaffer. I am the first to admit it.
Mr. Oberstar. I invited the Farm Bureau to do that way back
last year and still haven't received an answer from them. So,
if you can get one, that would be good.
Mr. Shaffer. I would.
Mr. Oberstar. Or give me your own. Give me your own as a
farmer.
Mr. Shaffer. I would be glad to.
Mr. Recker. I would just like to be able to see how they
cleared up the word navigable, what language they used to clear
that up.
Mr. Oberstar. All the practice that was in place prior to
SWANCC and Rapanos, people were complaining about that. It is
just that the Court decision has changed the landscape with
respect to the application of the Act. I am trying to get it
back to where it was prior to this confusion of who is
following Scalia, who is following Kennedy, who is following
the justices in between.
Mr. Gerber, thank you very much for your testimony, your
comments. Give me your thoughts about retaining the term,
navigable, but bringing with it the burden of previous
practice.
Mr. Gerber. Thank you. With your deference, I would like to
also ask for some time to really look at that, particularly
after seeing the specific language because I think it does
really matter.
Mr. Oberstar. Sure.
Mr. Gerber. One of the things that we would have to look at
is how that change in language meets the original intent of the
Clean Water Act as well as meeting the intent of this bill to
actually return us to that time and also taking into account
the focus of the Supreme Court on those particular words and
really look at just what do we run a risk of still going
backwards.
Mr. Oberstar. Thank you.
I thank all the witnesses at this table and those previous
in the day.
We are getting now down to specifics, away from hyperbole,
away from alarmism, away from even from hysteria that has been
stirred from time to time and place to place. This is a
complicated issue.
I think every panel today has said, we want to sustain
clean water. The question is how?
I come back to a point I made time and again. All the water
there ever was or ever will be on planet Earth is with us
today. We are sending expeditions to Jupiter, to Venus, to Mars
to look for water. We have it right here. We have to protect
it.
Every day, 40 trillion gallons of moisture passes over the
continental United States. About half of that falls from the
atmosphere and is absorbed before it reaches the ground.
The amount that reaches the ground or 625 billion gallons
are available. Half of that is absorbed or runs off. The rest
is what we can use, about 320 billion gallons a day.
It is enough to sustain life if we protect it, and we are
the only ones who can. Nature can't do it without our help. So
our charge, your charge is to help us protect this precious
resource and pass it on to the next generation in better shape
than we found it.
Mr. Carney, did you have another question you wanted to
ask?
Mr. Carney. Unfortunately, I wanted to get involved in the
language issues, but you guys already did that. I appreciate
that.
But I do want to make a quick observation, Mr. Chairman,
that having this kind of dialogue is absolutely essential to
getting a clean water bill that has the common sense practices
in it that enable us, one, to sustain the water resources of
this planet and this Country but also to enable those at the
witness table to do what they do. I agree with Mr. Shaffer and
Mr. Recker that the land and the water are the tools and to
enable those craftsmen to use those tools properly is the right
thing to do.
I come to the conclusion tonight actually that we are sort
of in violent agreement about a lot of this stuff and that
common sense is being injected by both sides and that a
solution is very near at end.
I thank you for the opportunity and for holding this
testimony, sir, and everybody at the table. I think it is good
news from here. Thank you very much.
Mr. Oberstar. Thank you, Mr. Carney.
I would be remiss, Mr. Recker, if I didn't thank you for
your acknowledgment of our work on the Water Resources
Development Act. That was six years worth of worth that we got
through in the first session of this Congress, and then we had
to override a presidential veto to get it passed.
In the history of the Congress, there have been 1,493
vetoes of acts of Congress by all the Presidents in history.
Only 106 were overridden until last fall. That was the 107th.
Mr. Recker. Well, we thank you for your hard work on the
Committee.
Mr. Oberstar. An earlier override was on the Clean Water
Act by a vote of 10 to 1.
It is important. I am just going to say this one thing.
Round trip barge traffic from Clinton, Iowa, to the world's
most important agricultural export facility, New Orleans, is
820 hours because the barge tows are 1,200 feet in length and
except for Alton, Illinois, the locks are 600 feet.
So each barge tow has to be broken in half. Send 600 feet
through. The next 600 feet through. Latch them together. Take
all that time and go down the next one and do it all over
again.
Grain, as you know, moves in international markets on as
little as an eighth of a cent a bushel. If you are adding that
transportation cost to the hard work you have put into your
beans and corn and other agriculture commodities that you are
exporting, think of Brazil.
Just look at a map of Brazil. That point that sticks out in
the south Atlantic Ocean, that is Recife. That is the port of
Recife Just below, there is the port of Santos. The port of
Santos is the point of export for soybeans which Brazil is
developing in fast amounts to the same markets that we are
selling, in West and East Africa and the Pacific Rim, and they
have a 2,500-mile advantage over us. That is a six-day sailing
advantage.
It is a huge transportation cost advantage over us, and we
have not modernized the locks on the Mississippi, Ohio and
Illinois Rivers since the 1930s except for Alton, Illinois.
That is shameful.
I said when I took the Chairmanship of the Committee, we
are going to do the unfinished business of the Congress, and we
got it done. I appreciate the participation of my colleague,
Mr. Mica, and all the Members on the Republican side. There was
an overwhelming support for that legislation because we know it
means productivity, mobility, competitiveness for America.
Thank you for listening to the sermon and thank you for
your participation today.
The Committee is adjourned.
[Whereupon, at 9:59 p.m., the Committee was adjourned.]
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