[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
STATUS OF THE NATION'S WATERS, INCLUDING WETLANDS, UNDER THE JURISDICTION 
               OF THE FEDERAL WATER POLLUTION CONTROL ACT

=======================================================================

                                (110-61)

                                HEARINGS

                               BEFORE THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                       JULY 17 AND JULY 19, 2007

                               ----------                              

                       Printed for the use of the
             Committee on Transportation and Infrastructure

     STATUS OF THE NATION'S WATERS, INCLUDING WETLANDS, UNDER THE 
        JURISDICTION OF THE FEDERAL WATER POLLUTION CONTROL ACT

     STATUS OF THE NATION'S WATERS, INCLUDING WETLANDS, UNDER THE 
        JURISDICTION OF THE FEDERAL WATER POLLUTION CONTROL ACT

     STATUS OF THE NATION'S WATERS, INCLUDING WETLANDS, UNDER THE 
        JURISDICTION OF THE FEDERAL WATER POLLUTION CONTROL ACT

     STATUS OF THE NATION'S WATERS, INCLUDING WETLANDS, UNDER THE 
        JURISDICTION OF THE FEDERAL WATER POLLUTION CONTROL ACT

     STATUS OF THE NATION'S WATERS, INCLUDING WETLANDS, UNDER THE 
        JURISDICTION OF THE FEDERAL WATER POLLUTION CONTROL ACT

     STATUS OF THE NATION'S WATERS, INCLUDING WETLANDS, UNDER THE 
        JURISDICTION OF THE FEDERAL WATER POLLUTION CONTROL ACT


      STATUS OF THE NATION'S WATERS, INCLUDING WETLANDS, UNDER THE 
        JURISDICTION OF THE FEDERAL WATER POLLUTION CONTROL ACT

=======================================================================

                                (110-61)

                                HEARINGS

                               BEFORE THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                          JULY 17 AND 19, 2007

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure

                    U.S. GOVERNMENT PRINTING OFFICE
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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia    JOHN L. MICA, Florida
PETER A. DeFAZIO, Oregon             DON YOUNG, Alaska
JERRY F. COSTELLO, Illinois          THOMAS E. PETRI, Wisconsin
ELEANOR HOLMES NORTON, District of   HOWARD COBLE, North Carolina
Columbia                             JOHN J. DUNCAN, Jr., Tennessee
JERROLD NADLER, New York             WAYNE T. GILCHREST, Maryland
CORRINE BROWN, Florida               VERNON J. EHLERS, Michigan
BOB FILNER, California               STEVEN C. LaTOURETTE, Ohio
EDDIE BERNICE JOHNSON, Texas         RICHARD H. BAKER, Louisiana
GENE TAYLOR, Mississippi             FRANK A. LoBIONDO, New Jersey
ELIJAH E. CUMMINGS, Maryland         JERRY MORAN, Kansas
ELLEN O. TAUSCHER, California        GARY G. MILLER, California
LEONARD L. BOSWELL, Iowa             ROBIN HAYES, North Carolina
TIM HOLDEN, Pennsylvania             HENRY E. BROWN, Jr., South 
BRIAN BAIRD, Washington              Carolina
RICK LARSEN, Washington              TIMOTHY V. JOHNSON, Illinois
MICHAEL E. CAPUANO, Massachusetts    TODD RUSSELL PLATTS, Pennsylvania
JULIA CARSON, Indiana                SAM GRAVES, Missouri
TIMOTHY H. BISHOP, New York          BILL SHUSTER, Pennsylvania
MICHAEL H. MICHAUD, Maine            JOHN BOOZMAN, Arkansas
BRIAN HIGGINS, New York              SHELLEY MOORE CAPITO, West 
RUSS CARNAHAN, Missouri              Virginia
JOHN T. SALAZAR, Colorado            JIM GERLACH, Pennsylvania
GRACE F. NAPOLITANO, California      MARIO DIAZ-BALART, Florida
DANIEL LIPINSKI, Illinois            CHARLES W. DENT, Pennsylvania
DORIS O. MATSUI, California          TED POE, Texas
NICK LAMPSON, Texas                  DAVID G. REICHERT, Washington
ZACHARY T. SPACE, Ohio               CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii              JOHN R. `RANDY' KUHL, Jr., New 
BRUCE L. BRALEY, Iowa                York
JASON ALTMIRE, Pennsylvania          LYNN A WESTMORELAND, Georgia
TIMOTHY J. WALZ, Minnesota           CHARLES W. BOUSTANY, Jr., 
HEATH SHULER, North Carolina         Louisiana
MICHAEL A. ACURI, New York           JEAN SCHMIDT, Ohio
HARRY E. MITCHELL, Arizona           CANDICE S. MILLER, Michigan
CHRISTOPHER P. CARNEY, Pennsylvania  THELMA D. DRAKE, Virginia
JOHN J. HALL, New York               MARY FALLIN, Oklahoma
STEVE KAGEN, Wisconsin               VERN BUCHANAN, Florida
STEVE COHEN, Tennessee
JERRY McNERNEY, California
VACANCY

                                  (ii)

  
?

            Subcommittee on Water Resources and Environment

                EDDIE BERNICE JOHNSON, Texas, Chairwoman

GENE TAYLOR, Mississippi             RICHARD H. BAKER, Louisiana
BRIAN BAIRD, Washington              JOHN J. DUNCAN, Jr., Tennessee
DORIS O. MATSUI, California          WAYNE T. GILCHREST, Maryland
JERRY F. COSTELLO, Illinois          VERNON J. EHLERS, Michigan
TIMOTHY H. BISHOP, New York          FRANK A. LoBIONDO, New Jersey
BRIAN HIGGINS, New York              GARY G. MILLER, California
RUSS CARNAHAN, Missouri              ROBIN HAYES, North Carolina
JOHN T. SALAZAR, Colorado            HENRY E. BROWN, Jr., South 
MAZIE K. HIRONO, Hawaii              Carolina
HEATH SHULER, North Carolina         TODD RUSSELL PLATTS, Pennsylvania
HARRY E. MITCHELL, Arizaon           BILL SHUSTER, Pennsylvania
JOHN J. HALL, New York               JOHN BOOZMAN, Arkansas
STEVE KAGEN, Wisconsin               CONNIE MACK, Florida
JERRY MCNERNEY, California           JOHN R. `RANDY' KUHL, Jr., New 
ELEANOR HOLMES NORTON, District of   York
Columbia                             CHARLES W. BOUSTANY, Jr., 
BOB FILNER, California               Louisiana
ELLEN O. TAUSCHER, California        JEAN SCHMIDT, Ohio
MICHAEL E. CAPUANO, Massachusetts    CANDICE S. MILLER, Michigan
GRACE F. NAPOLITANO, California      THELMA D. DRAKE, Virginia
MICHAEL A ARCURI, New York           JOHN L. MICA, Florida
JAMES L. OBERSTAR, Minnesota           (Ex Officio)
  (Ex Officio)

                                 (iii)

                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................  viii

Proceedings of:

  July 17, 2007..................................................     1
  July 19, 2007..................................................   572

                             July 17, 2007
                               TESTIMONY

Connolly, Kim Diana, Associate Professor of Law, Department of 
  Clinical Legal Studies, University of South Carolina School of 
  Law............................................................    28
Curry, Hon. Ron, Secretary, New Mexico Environment Department, 
  Santa Fe, New Mexico...........................................    20
Hopper, M. Reed, Principal Attorney, Pacific Legal Foundation....    28
Percival, Robert, Robert F. Stanton Professor of Law and 
  Director, Environmental Law Program, University of Maryland....    28
Schweitzer, Hon. Brian, Governor, State of Montana, Helena, 
  Montana........................................................     5

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Altmire, Hon. Jason, of Pennsylvania.............................    53
Baker, Hon. Richard H., of Louisiana.............................    54
Costello, Hon. Jerry F., of Illinois.............................    59
Ehlers, Hon. Vernon J., of Michigan..............................    62
Mica, Hon. John L., of Florida...................................    65
Mitchell, Hon. Harry E., of Arizona..............................    70

             PREPARED STATEMENT SUBMITTED BY THE WITNESSES

Connolly, Kim Diana..............................................    73
Curry, Ron.......................................................   212
Hopper, M. Reed..................................................   217
Percival, Robert V...............................................   237
Schweitzer, Hon. Brian...........................................   266

                       SUBMISSIONS FOR THE RECORD

Baker, Hon. Richard H., a Representative in Congress from the 
  State of Louisiana, supplemental photographs...................    56
Connolly, Kim Diana, Associate Professor of Law, Department of 
  Clinical Legal Studies, University of South Carolina School of 
  Law:

  Brief of the Honorable John D. Dingell, the Honorable John 
    Conyers, Jr., the Honorable Robert F. Drinan, the Honorable 
    Gary W. Hart, the Honorable Kenneth W. Hechler, the Honorable 
    Charles McCurdy Mathias, Jr., the Honorable Paul N. 
    McCloskey, Jr., the Honorable Charles B. Rangel, and the 
    Honorable Senator Richard Schultz Schweiker, as Amici Curiae 
    in Support of the Respondent, Rapanos v. United States, 
    Carabell v. United States Army Corps of Engineers, Nos. 04-
    1034, 04-1348, Supreme Court of the United States, Jan. 13, 
    2006.........................................................    88
  ``Any Hope for Happily Ever After? Reflections on Rapanos and 
    the Future of the Clean Water Act Section 404 Program,'' 
    Vermont Law School publication...............................   129
  ``Survey Says: Army Corps No Scalian Despot,'' 37 Env'l Law 
    Reporter 10317 (May 2007)....................................   150
  ``Anchoring the Clean Water Act: Congress's Constitutional 
    Sources of Power to Protect the Nation's Waters''............   195

                        ADDITIONS TO THE RECORD

Submitted by the Committee: Lance D. Wood, ``Don't Be Misled: CWA 
  Jurisdiction Extends to All Non-Navigable Tributaries of the 
  Traditional Navigable Waters and to Their Adjacent Wetlands,'' 
  Environmental Law Reporter's News & Analysis, 34 (2004)........   269
American Association of State Highway and Transportation 
  Officials, John Horsley, Executive Director, written statement.   300
The American Institute of Architects, Paul Mendelsohn, Vice 
  President, written statement...................................   304
American Rivers, Katherine Baer, Director, Healthy Waters 
  Campaign, bibliography of documents relevant to both hearings..   305
Association of State Floodplain Managers, Inc., Larry Larson, 
  Executive Director, written statement..........................   312
The Association of State Wetland Managers, Inc., Peg Bostwick, 
  Chairman, written statement....................................   313
California Association of Sanitation Agencies, Catherine Smith 
  and Tim Quinn, Executive Directors, written statement..........   315
Chamber of Commerce of the United States of America, R. Bruce 
  Josten, Executive Vice President, written statement............   317
Chesapeake Bay Foundation:

  Roy A. Hoagland, written statement.............................   319
  Additional written statement...................................   321
Citizens Campaign for the Environment, Adrienne Esposito, 
  Executive Director, written statement..........................   330
Coachella Valley Water District, Steve Robbins, General Manager-
  Chief Engineer, written statement..............................   333
Friends of Wetlands, John Katko, written statement...............   341
Great Lakes Aquatic Habitat Network and Fund, Jill Ryan, 
  Executive Director.............................................   343
Lake Erie Region Conservancy, Tom Fuhrman, President, written 
  statement......................................................   344
State of Montana, Office of the Governor, written statement......   346
National Association of Home Builders, written statement.........   348
National Mining Association, written statement...................   361
The Nature Conservancy

  Steven H. McCormick, President and Chief Executive Officer, 
    written statement............................................   365
  Nat Williams, Director of U.S. Government Relations, written 
    statement....................................................   366
Natural Resources Defense Council, Sierra Club, Earthjustice, 
  American Rivers, National Audubon Society, U.S. PIRG, Southern 
  Environmental Law Center, Environmental Integrity Project, 
  Clean Water Action, joint written statement....................   370
State of New Mexico, Office of the Governor, written statement...   391
Northeast Ohio Watershed Council for Grand River Partners, Inc., 
  David A. Lipstreu, AICP, Member, written statement.............   393
Tip of the Mitt Watershed Council, Jennifer McKay, Policy 
  Specialist, written statement..................................   395
Comments for the EPA Water Docket, Advance Notice of Proposed 
  Rulemaking on the Clean Water Act Regulatory Definition of 
  ``Waters of the United States''................................   400
Western Coalition of Arid States, Charlie Nylander, President, 
  written statement..............................................   566

                             July 19, 2007
                               TESTIMONY

Browner, Carol M., Principal, The Albright Group, LLC, and former 
  Administrator of the Environmental Protection Agency...........   584
Forester, Hon. Larry, City Councilman, Signal Hill, California...   608
Hall, Marcus J., P.E, Public Works Director/County Engineer, 
  Duluth, Minnesota..............................................   608
Logan, Joe, President, Ohio Farmers Union........................   608
Meyer, Dr. Judith L., Distinguished Research Professor of Ecology 
  Emeritus, University of Georgia, Athens, Georgia...............   616
Moyer, Steve, Vice President, Government Affairs and Volunteer 
  Operations, Trout Unlimited....................................   608
Semanko, Norman M., Executive Director and General Counsel, Idaho 
  Water Users Association, Inc...................................   608
Yaich, Dr. Scott C., Director of Conservation Operations, Ducks 
  Unlimited, Inc., Memphis, Tennessee............................   616

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Altmire, Hon. Jason, of Pennsylvania.............................   622
Baker, Hon. Richard H., of Louisiana.............................   623
Costello, Hon. Jerry F., of Illinois.............................   626
Hirono, Hon. Mazie K., of Hawaii.................................   628
Matsui, Hon. Doris O., of California.............................   630
Mitchell, Hon. Harry E., of Arizona..............................   632
Oberstar, Hon. James L., of Minnesota............................   635

             PREPARED STATEMENT SUBMITTED BY THE WITNESSES

Browner, Carol M.................................................   639
Forester, Hon. Larry.............................................   641
Hall, Marcus J...................................................   651
Logan, Joe.......................................................   655
Meyer, Judith L..................................................   661
Moyer, Steve.....................................................   713
Semanko, Norman M................................................   720
Yaich, Scott C...................................................   730

                       SUBMISSIONS FOR THE RECORD

Meyer, Dr. Judith L., Distinguished Research Professor of Ecology 
  Emeritus, University of Georgia, Athens, Georgia:

  ``The Role of Headwater Streams in Downstream Water Quality,'' 
    Richard B. Alexander et al., Journal of the American Water 
    Resources Association, American Water Resources Association..   668
  ``Where Rivers are Born: The Scientific Imperative for 
    Defending Small Streams and Wetlands,'' Sierra Club, American 
    Rivers.......................................................   687
Westmoreland, Hon. Lynn, a Representative in Congress from the 
  State of Georgia, response to request for information from Rep. 
  Bishop.........................................................   576
Yaich, Dr. Scott C., Director of Conservation Operations, Ducks 
  Unlimited, Inc., Memphis, Tennessee, letter to Rep. Gilchrest..   738

                        ADDITIONS TO THE RECORD

Submitted by the Committee: Rapanos v. United States, 547 U.S. 
  715; 126 S. Ct. 2208; 165 L. Ed. 2d 159 (2006) (Nos. 04-1034 
  and 04-1384)...................................................   740
American Farm Bureau Federation, written statement...............   806
American Road and Transportation Builders Association, written 
  statement......................................................   812
American Society of Civil Engineers, written statement...........   819
The Associated General Contractors of America, Stephen E. 
  Sandherr, CEO, written statement...............................   840
The Edison Electric Institute on Clean Water Act Jurisdictional 
  Issues, written statement......................................   849
The National Stone, Sand and Gravel Association, written 
  statement......................................................   856
National Wildlife Federation, Ducks Unlimited, Trout Unlimited, 
  Izaak Walton League of America, joint written statement........   864
The Nationwide Public Projects Coalition, written statement......   871
North American Benthological Society, R. Han Stevenson, Ph.D., 
  President, written statement...................................   873
Letters to the Committee from former Administrators of the U.S. 
  Environmental Protection Agency................................   875
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HEARING ON STATUS OF THE NATION'S WATERS, INCLUDING WETLANDS, UNDER THE 
        JURISDICTION OF THE FEDERAL WATER POLLUTION CONTROL ACT

                              ----------                              


                         Tuesday, July 17, 2007

                  House of Representatives,
    Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 2:00 p.m., in Room 
2167, Rayburn House Office Building, the Honorable James L. 
Oberstar [Chairman of the Committee] presiding.
    Mr. Oberstar. The Committee on Transportation and 
Infrastructure will come to order.
    We meet to discuss one of the most important environmental 
issues of our time, the jurisdictional scope of the Federal 
Water Pollution Control Act Amendments of 1972. This is the 
first of two hearings and perhaps others that will follow on 
the history of the Clean Water Act and the intent of Congress 
over three decades ago in enacting this landmark legislation 
and on the effect of two decisions by the U.S. Supreme Court 
which in my judgment and that of many, many others has 
undermined the most successful environmental statute ever 
enacted.
    This October marks the 35th anniversary of the Clean Water 
Act and, more importantly, the 51st anniversary of the Federal 
Water Pollution Control Act of 1956, authored by that gentleman 
portrayed in the portrait in the corner, John Blatnik, my 
predecessor in Congress, former Chairman of this Committee who 
first hired me in January of 1963 as Clerk of the Subcommittee 
on Rivers and Harbors.
    I spent 44 years, much of that time in this Committee room 
and a good deal of it in another Committee room where the 
Public Works Committee started in the Cannon Office Building.
    He had the vision as he assumed the Chairmanship in 1955 of 
the Subcommittee on Rivers and Harbors, traveled the 
Mississippi River to understand what was needed in the way of 
works by the Corps of Engineers to support the navigability of 
the Mississippi and its tributaries: the Missouri, the Ohio, 
the Illinois and many others.
    But as he moved down the Mississippi River, a biochemist by 
training himself and a teacher of biochemistry, he said, what 
struck me was the increasing pollution of this mighty father of 
waters. By the time, he said, we got to New Orleans, there were 
raw phenols boiling in the water, dumped by countless cities 
along that 2,000 mile journey of the mighty Mississippi to the 
Gulf.
    He came back to Washington, resolved to deal with the 
navigation needs and the dredging needs of traffic on the 
Mississippi but, more importantly, to deal with cleaning up 
discharges into the Nation's waterways that were polluting, 
poisoning our waters. Shortly after that, he went down to the 
Tidal Basin in full cherry blossom dress and called it the best 
dressed cesspool in America. Out of that came the Federal Water 
Pollution Control Act of 1956 signed by President Eisenhower.
    A subsequent amendment to that act to expand the funding 
under the program from $30 million, 30 percent Federal grants 
to $50 million was vetoed by President Eisenhower. His veto 
message was written by Bryce Harlow, later a lobbyist for 
Procter and Gamble, with the salient two sentiments: Pollution 
is a uniquely local blight. Federal involvement will only 
impede local efforts at cleanup.
    That year, John F. Kennedy was elected President Kennedy 
was elected President, and one of his critical elements of his 
platform was cleaning up the Nation's waters. That resulted in 
amendments of 1961 that expanded the program, subsequent 
amendments that improved it and then the far-reaching classic 
act of 1972 vetoed by President Nixon, a veto overridden by a 
vote of 10 to 1 by the Congress in October of 1972.
    An historic commitment to cleaning up the Nation's precious 
resource, irreplaceable, all the water, all the water we have 
that ever existed that ever will be is here now. We are not 
going to create more water.
    This Committee bears responsibility for determining the 
future success of this Clean Water Act or its failure, and our 
work has been made difficult by the interpretation of the 
Supreme Court. In crafting that legislation and much of the 
House-Senate conference took place right in this room, I was 
part of that over many months. It was an 11 month conference. 
We clearly intended the broadest possible constitutional 
interpretation of the Act.
    I have read the SWANCC case. I have read the Rapanos case. 
I strongly disagree with the Court's invention of a fiction, a 
fictional juncture between authority to protect and so-called 
traditional navigable waters. All those who participated in 
that House-Senate conference understood the traditions of 
Congressional authority for traditionally navigable waters, but 
they purposely moved away from those notions in order to 
establish a new national commitment for clean water.
    We understood after extensive hearings on the subject, 
extensive practice under the 1956, 1961, 1967 Act amendments 
that we needed broader authority to deal with the quality of 
receiving waters than just dealing with the lakes and streams 
themselves.
    John Blatnik, in Floor consideration of the bill, said: In 
this measure, we are totally restructuring the Federal Water 
Pollution Control program and making a far-reaching national 
commitment to clean water. As much as our space program was 
restructured a decade ago when the late President Kennedy 
committed America to land on the moon, the legislation we are 
considering is of immeasurable significance to the Nation.
    In many ways and very predictive, he said, it is a far more 
difficult undertaking than the 42,500 mile interstate highway 
program which the Public Works Committee initiated in 1956. 
That has been hailed as the greatest public works undertaking 
in all history. The Water Pollution Control program we are 
initiating in this body will, in my judgment, be an even more 
monumental task.
    That was a visionary statement.
    The late Justice Rehnquist and current Justice Scalia 
pointed to the use of the term, navigable waters, which appears 
86 times in the Clean Water Act, but the legislative history is 
very clear. The very opening paragraph of the Act says the 
purpose of this Act is to maintain the chemical, physical and 
biological integrity of the Nation's waters. The very opening 
statement makes the definition of terms, makes it very clear 
what the purpose of the Act was.
    We have learned over many years that dealing with isolated 
waters, only receiving waters or only intermittent streams was 
not sufficient to protect waters. The language specifically 
referred to waters of the United States and the territorial 
seas. Our Committee report clearly said: ``The Committee was 
reluctant to define the term, navigable waters, on the fear 
that any interpretation would be read narrowly which is not the 
Committee's intent.''
    Then when we got into conference, ``The conferees fully 
intend that the term, navigable waters, be given the greatest 
possible constitutional interpretation.''
    In the decades after enactment of the Clean Water Act, the 
Corps and EPA broadly interpreted that authority consistent 
with the intent of the committee of conference, consistent with 
the term of the legislation itself. So over 30 years, we have a 
body of practice, a body of application of this Act to address 
potential impairments of the water at their source, not just 
further downstream. Federal Government agencies have been able 
to administer this program very, very effectively and within 
keeping of the original purpose of the Act.
    The objective of the legislation that I have introduced 
with a large number of co-sponsors is to restore, post-Supreme 
Court decision, the original purpose of that Act and to 
reinstate the way the Act has been administered for over 30 
years. We come back to this Committee room to do what 
visionaries before us undertook to do in the name of their 
generation and of future generations.
    Thank you. I yield to the Ranking Member, Mr. Mica.
    Mr. Mica. I thank the Chairman and appreciate his convening 
this hearing today, the first of several hearings that will 
deal with the status of our nation's waters, including 
wetlands, under the jurisdiction of the Federal Water Pollution 
Control Act.
    I might say that I think we are all here for the same 
purpose and the same interest. I think everyone with any 
modicum of common sense would want to preserve and protect our 
natural areas in this Country, our wetlands and our 
environmentally sensitive bodies of water.
    I think we are here partially too, as we all know, because 
the U.S. Supreme Court kept a narrow definition of what we have 
come to know as a definition of wetlands, and that has resulted 
in a re-examining of that definition and also the status of our 
Clean Water Act performance.
    Any definition, redefinition or expansion of the definition 
of wetlands, if not carefully crafted, can result and I think 
we have to be careful that it would result in initiating costly 
litigation, more red tape and even more uncertainty for future 
efforts to clean up the environment and our natural bodies of 
water.
    Not only do we have that problem that we could impair 
future infrastructure development; we could halt projects 
around the Country that are necessary for development. We could 
depress employment opportunities. We could do all this, and we 
might in fact fail to achieve our original goal, and the 
original goal is cleaner water and natural bodies of water.
    Today, we are going to hear about some of the problems and 
successes of the Clean Water Act and probably hear some 
recommendations on how to improve the law.
    Some in Congress, including Mr. Oberstar and Mr. Dingell, 
have already introduced proposals to revise the Clean Water 
Act's wetlands program. It is doubtful, however, that these 
proposals will really clarify, as they are currently drafted, 
Clean Water Act jurisdiction or create any certainty for the 
regulated public.
    Rather, I am concerned that these provisions could vastly 
expand Federal powers over private property, upset longstanding 
cooperative relationships that the Federal Government and the 
States have had with regard to water management and water 
quality, and create even more confusion and uncertainty over 
application and interpretation of the Act which will start all 
over again.
    The legislation that has been introduced proposes a much 
broader definition of ``waters of the United States.'' It will 
eliminate the traditional basis for Federal jurisdiction under 
the Clean Water Act by deleting the term, navigable, from the 
statute and expand the scope of Federal jurisdiction to its 
maximum limits under the Constitution. So all this opens a 
whole new can of worms.
    These changes would effectively erase many of the decades 
of jurisprudence and invite the Federal courts to decide the 
constitutional limits of Federal authority under the Clean 
Water Act. This, in turn, will spur even more litigation as the 
Government and stakeholders struggle to clarify the uncertain 
scope of jurisdiction under these new proposals and this new 
language and these new definitions.
    Congress has the responsibility to state clearly the 
jurisdictional limits of Federal regulatory programs, and I 
support that, but it shouldn't create more confusion and more 
controversy and more litigation, more uncertainty, as I am 
afraid might happen with the proposal that has been introduced 
in Congress.
    I am pleased that our witnesses today and on Thursday will 
address their experiences with the Clean Water Act regulation. 
I anticipate we will hear about some of their problems and 
concerns with the way the program is currently working or not 
working.
    I do reserve the right, however, to work with both the 
former Chairman of the Subcommittee, Mr. Duncan, and also with 
our current Ranking Member, Mr. Baker, to look at the 
possibility of crafting a legislative alternative and something 
that could provide a better definition, less controversy and 
less uncertainty in reaching our mutual goal. So I hold that in 
abeyance.
    I hope the Members will listen to the testimony this week 
so that we can all work together to create legislation that is 
clear, legislation that is predictable, legislation that is 
reasonable and legislation that is truly protective of our 
water resources.
    I yield back.
    Mr. Oberstar. I thank the gentleman.
    We will have ample time to debate the issues the Ranking 
Member has raised, and I appreciate him being frank and 
straightforward about his thoughts.
    Governor, thank you very much for being with us today.
    I say to my Committee colleagues that others who have 
statements can summarize them during their five minute 
questioning period of time, but we don't want to keep the 
Governor waiting. He has come a long way from Montana. I assume 
by Northwest Airlines since that is the best way out, but I 
know it is a trepidatious trip from out there.
    You are awfully good to spend time with us. Governor, I 
just have one question, and that is: How were the poll ratings 
of your dog?

TESTIMONY OF THE HONORABLE BRIAN SCHWEITZER, GOVERNOR, STATE OF 
                    MONTANA, HELENA, MONTANA

    Governor Schweitzer. Higher than mine.
    [Laughter.]
    Mr. Oberstar. They were higher than most of us from what I 
heard not some time ago. Generous of you to be with us today. 
Thank you very much.
    I refer to a humorous comment the Governor made, speaking 
to a meeting of the Democratic Issues Conference a year or so 
ago. I wish I had the dog's poll ratings. Thank you.
    Governor Schweitzer. Well, I have to be honest with you, 
Mr. Chairman and Ranking Member and the Members of this 
Committee. I try not to go places that I can't bring my dog 
along with me. So if I made an exception here today, it is an 
important issue that we are here today. I come before you not 
just as the Governor of Montana but as a soil scientist, as a 
rancher, as a third generation farmer in Montana.
    Montana is known as the Treasure State, and it affects each 
and every one of you because for thousands of years in the high 
country of Montana we get large quantities of snow and through 
the summer this snow is melting and it renews America's water 
supply every single year. In Montana, we provide the snow that 
is 70 percent of the Missouri River system. We provide 50 
percent of the water that is stored in the Columbia River basin 
system.
    In Montana, at our Continental Divide, it is the only place 
in the United States that water flows to the Pacific, to the 
Atlantic and yes, indeed, also to the Arctic. We are the 
Headwater State and we are the Treasure State.
    A hundred years ago, we were the Treasure State because of 
all the wonderful minerals in the mountain. Of course, we were 
blessed. God spent six days making the rest of the world and 
the rest of the States, and on the seventh day after all of 
that practice, he created the Big Sky Country where in our 
mountains we have gold and we have silver. We have copper. We 
have 30 percent of the Nation's coal supply. We have oil, we 
have gas, and we have the only platinum and palladium deposits 
in the Western Hemisphere.
    So, indeed, we are the Treasure State. But as we have come 
to find out and find out during the recent years, probably the 
greatest treasure that we have is not necessarily the minerals 
in the mountain but the mountains themselves and this cleansing 
snow that we send to the rest of the States every year.
    Now I seldom come before Congress and ask you to help us 
with anything because our history in Montana is that your help 
is very expensive. In fact, you help us manage the Missouri 
River draining system.
    We already described for you how we provide 70 percent of 
the water in the Missouri River system. We have the first big 
reservoir on the Missouri River system, and we think that we 
ought to have the opportunity to keep that first reservoir full 
for recreation, for irrigation, but we only have one Member of 
Congress and North Dakota only has one Member of Congress and 
South Dakota, the same.
    In fact, as it turns out, all of the States upstream from 
Missouri have fewer collectively than the State of Missouri. So 
the Missouri River ends up getting managed for the benefit of 
the State of Missouri and floating their boats as opposed to 
all of the concerns that we have upstream.
    If we, as leaders, could learn a single thing from the 
people who have occupied Montana and the Great Plains, the 
Indian people that have occupied it for as much as 5,000 years. 
Their leadership understood that you need to protect the 
future.
    We, as politicians, I bet you have all done this once or 
twice. You say we need to do something for our children, and 
some of you are visionaries and you say for our grandchildren, 
and some will even say the future generations.
    But the people who have occupied Montana and the Treasure 
State sustainably for more than 5,000 years, when they made 
their decisions, they always considered the seventh generation. 
If we were to consider the seventh generation, I think we would 
make different decisions than we have been making relative to 
our Nation's water.
    Let us talk about this bill. To use as the barometer as to 
whether we are going to manage this water for clean water as to 
whether it is navigable or not is ludicrous. The natural 
filtration system at the headwaters of our water systems, that 
natural purifier, by definition, are these streams and streams 
that only flow when the snow is melting. Some of these 
headwater streams only flow for a few months per year, and yet 
that is your supply of clean water.
    We ask you to support this legislation, but we also ask you 
for some common sense because if you were to put the map of 
Montana on the northeast, it would run from New York City to 
Indianapolis, and yet we only have 930,000 people.
    We have a natural filtration system, and we make a living 
in Montana running cows on the range, and sometimes those cows 
drink water out of a pond or out of a river. We don't want the 
long arm of the Federal Government telling us we can't do that.
    We don't want the long arm of the Federal Government 
stopping us from sustainable logging in Montana, and we don't 
want the long arm of the Federal Government telling us what we 
ought to do with our fisheries at the high reaches of the Rocky 
Mountains. We want you to be our partner and collaborator.
    We don't want to put the Federal Government in the position 
of managing our waterways all the way to the Rocky Mountains. 
We want you to be our partner, our collaborator. We want you to 
help us protect the water supply for the rest of the Country, 
but we don't want to put our farmers out of business, our 
loggers out of business, our cattlemen out of business.
    I think that is the intent of what we are attempting to do 
here is to help protect the water and to maintain those natural 
resource businesses that we have in places like Montana. So, 
again, I thank you for considering this legislation.
    It is important because I understand the way lawyers look 
at things. They went off to law school, and there is a lot of 
words and a lot a books, and they try and draw a line between 
navigable, non-navigable, but that is not the way you manage 
resources on the ground. Clean water isn't necessarily a place 
that you can float your boat. Clean water actually has more to 
do with the places that you don't float your boat because those 
are our natural filtration systems.
    So, again, I thank you. I encourage you to support this 
legislation, but I want to make sure that you protect those of 
us who are upstream, providing your water and don't put our 
livestock people out of business, our loggers out of business 
and those who use water for irrigation.
    Let us protect the waterways, let us protect the fisheries, 
and let us protect the seventh generation. Thank you very much.
    Mr. Oberstar. Governor, I think that reference to the 
Native American people, the seventh generation, is something of 
great significance for all of us to ponder and to weigh 
carefully. I have read several of the treaties of 1837 and 1854 
in which the promises were made by the great white father in 
Washington to the Native Americans as long as rivers flow. Let 
us make sure we keep the rivers flowing.
    Mr. Duncan.
    Mr. Duncan. Well, thank you very much, Mr. Chairman, and 
let me say that, first of all, I don't suppose there is anybody 
in the Congress that admires and respects your knowledge of 
this Committee and its work more than I do.
    I think what we are all attempting to achieve here is 
balance.
    Last year in this Subcommittee, we passed a resolution 
commemorating the 30th anniversary of the Clean Water Act. We 
are all proud of the great progress we have made in making our 
waters cleaner over the last 30 years, and much of that 
progress was made because of the work of this Committee and 
because of the work of our Chairman over the last 44 years both 
on this Committee staff and on this Committee.
    Governor, certainly, it is an honor to have you with us. I 
have a first cousin who is a radiologist in Libby, Montana, and 
has been there for many, many years and loves it.
    I think the philosophy that you have expressed in your 
opening statement is one that is shared by almost everybody on 
our side when you say that you don't want the long arm of the 
Federal Government managing your waters or preventing 
sustainable logging or hurting your farmers and ranchers. As I 
said, I think that is what we need to try to achieve.
    There are some groups who don't want to admit that we have 
made progress over the last 30 years because they have got to 
keep telling us how bad everything is so they can keep their 
contributions coming in.
    Also, at the same time while we are proud of the progress 
we have made, we want to try to do better, but we have also 
noticed that in almost every industry or area that if we 
regulate too much, the little guys are the ones that are driven 
out of business.
    And so, I hope you will help us since you have come here 
today and testified and you are assuming a leadership role in 
regard to this legislation. I hope that you will meet with the 
smallest of your ranchers and farmers in Montana and maybe even 
other States and make sure that we are not going to do anything 
that hurts them or drives them out of business because they 
already have it tough enough as it is.
    Are you willing to do that?
    Governor Schweitzer. I do that pretty near every day of the 
week.
    Mr. Duncan. You have got in your statement that you are 
afraid that if we go with the Supreme Court decision that you 
would lose some Federal funding under the Clean Water Act. How 
much Federal funding does Montana get from the Clean Water Act 
right now?
    Governor Schweitzer. I can't answer that question. I don't 
have that number in front of me. You might have that.
    Mr. Duncan. Possibly what we could do would be to make sure 
in this legislation that you don't lose any Federal funding.
    What I am thinking about is this. Governor McWherter, who 
was our Democratic Governor in Tennessee for many years, he 
would come to us every year and he would say, please, no more 
unfunded mandates. We have heard that from governors all over 
the Country, and it is a problem.
    I think, again, you expressed the philosophy of the people 
on our side when you said you want us to be a partner rather 
than some type of dictator. With that, I don't think there is 
anything in your statement that I disagreed with, so I will 
just thank you for being here and let the Chairman move on.
    Governor Schweitzer. May I respond?
    Mr. Duncan. Yes, sir.
    Governor Schweitzer. Then you know with having a relative 
in Libby, in Montana, we have had a history, being the Treasure 
State, of a lot of companies coming in and mining the minerals, 
and so we have a hundred years of mining activity, and that 
mining activity that we conducted a hundred years ago doesn't 
look anything like the way we do today.
    We have a lot of those glory holes that have been dug into 
the side of those mountains, and now we have pH 2.5, 2.8 water 
flowing out of the highest reaches of the Rocky Mountains, 
flowing into your water supply. So we need to continue to 
rectify those concerns that we have to protect your water 
supply.
    Of course, in Libby, probably one of the largest 
environmental catastrophes in the history of this Country where 
W.R. Grace was mining vermiculite mixed with asbestos and 
poisoned an entire town in one of the most remarkable places in 
America. The consequences of the actions that we have taken in 
the past are some of the things that we need to rectify in the 
future, not the kind of management that is conducted on the 
ground today but what has happened in the past. We still have 
hundreds of millions of dollars worth of cleanup to do in 
places like Montana.
    Thank you.
    Mr. Duncan. Well, I will say this. The people in Tennessee 
sometimes drink the water in California and Montana and places 
like that and vice versa. So I have always thought there was an 
important Federal role in regard to all of this that we are 
talking about here today. On the other hand, we can't do it 
all. There has to be an important State role and a local role.
    But, as I said, I just think we have got to be careful and 
not over-regulate so that we drive the smallest of our 
businesses out of existence. In that case, you end up 
destroying jobs and driving up prices. The wealthy always come 
out all right, but who you hurt in that process are the poor 
and the lower income and the working people, and I think that 
is what we have got to be concerned about.
    We have got to do everything we can for the environment, 
but we have got to make sure we don't harm humanity in the 
process.
    Thank you, Mr. Chairman.
    Mr. Oberstar. Thank you. I appreciate the gentleman's 
thoughtful remarks on my service on the Committee as well.
    Ms. Johnson, our Chair of the Water Resources Subcommittee.
    Ms. Johnson. Thank you, Mr. Chairman.
    Governor, what are the water resources in Montana most at 
risk of being polluted or filled and destroyed in the scope of 
the Clean Water Act if it is reduced and the law is read to 
exclude certain tributaries, streams and wetlands?
    Governor Schweitzer. The highest reaches of the Rocky 
Mountains often times contain the most minerals, and so near 
the Continental Divide is where we have been mining gold and 
silver and copper for well over a hundred years.
    In many cases, with the Mining Law of 1872, people came 
from all over the world to Montana for a very short period of 
time, and their aim was to dig a hole in the side of that 
mountain big enough so that they could collect enough gold that 
they could go back and buy their home town out. A lot of them 
did that, and what they left behind was these big old holes in 
the side of a mountain.
    That mountain is a living place. There is water that flows 
through that mountain. It is part of the filtration system. 
When you excavate the side of that mountain and you expose 
pyrite To air and to water, pyrite is a mineral that will 
change the pH of the water from its native 7, 7.2, even 7.5 
down to 2, 2.5 and that water flows out from the Continental 
Divide in streams that don't even flow all year into the next 
creek to the next creek to the next creek and to the river and 
finally to the Missouri River where it flows all the way to the 
Gulf of Mexico.
    The greatest challenge that we have collectively is to 
protect the water supply for some 20 States that starts high in 
the Rocky Mountains of Montana. A great part of the problem we 
have isn't the things that we are doing today, but it was 
activity that was conducted as much as a hundred years ago, and 
we have no permanent solution to solve the problem. So we will 
have ongoing water treatment for as long as the snow lands in 
the high countries of Montana.
    So we need your help. Thank you.
    Ms. Johnson. Thank you very much.
    Mr. Oberstar. Mr. Petri?
    Mr. Coble.
    Mr. Coble. Thank you, Mr. Chairman.
    Governor, good to have you with us.
    Governor, you mentioned your ranchers earlier. What sort of 
response have you had from your farmers and ranchers and 
localities to this proposal?
    Governor Schweitzer. Well, farmers and ranchers in Montana 
like clean water because the most likely folks to drink the 
water on their ranches are themselves and their livestock. The 
ranchers in Montana want to make sure that we maintain a high 
quality of water because that is the water for their livestock. 
The farmers in Montana want to continue with a clean water 
supply because we export our agricultural products all over the 
world, and a great part of our production is with irrigation.
    So farmers and ranchers are supportive of clean water. 
Farmers and ranchers would like the Federal government to help 
us. Remember, most of these farms and ranches are more out on 
the prairie and the water starts high in the Continental Divide 
at those old mines that we have there. The last thing a rancher 
wants is for some of that water to flow down out that mountain 
with low pH or heavy metals that would destroy his land or his 
livestock.
    Again, the farmers and ranchers would like your help, but 
they wouldn't like to be in a position where the Federal 
Government says, oh, boy, you know that stock pond that you 
have got there on your ranch where you built it or your 
granddaddy built that thing 75 years ago? Well, you no longer 
can have your cattle take water out of that because now we in 
Washington, D.C. think we own that water.
    That is something that we don't want to see happen.
    We also don't want the Federal Government to come in and 
say, the way you are irrigating, sir, has got to change today 
without the resources to change.
    So if you want us to change in Montana, you bring us the 
dollars and we will do some of those changes.
    Mr. Coble. Water, the essential commodity for generations 
has generated much controversy in a way. So I think we all want 
clean water.
    Governor, I am told that western Montana is currently 
experiencing a boom in natural gas production, presumably 
greatly benefitting your State's economy. How will H.R. 2421 
affect, if it will affect, Montana's economy and the ability of 
what is probably a regulated energy sector to develop natural 
gas with every small and presumably intermittent body of water 
may well be under Federal regulation? Will that have any 
adverse or negative effect?
    Governor Schweitzer. Our natural gas is actually for the 
most part in eastern Montana. Our dry natural gas which is 
drilled much deeper to as much as 8,000 and 12,000 feet, 
probably not affected at all.
    But coal bed methane which are shallow wells that are 
drilled to coal seams, 500 to 1,000 feet, that have been 
aquifers, it would affect us a great deal. The way you develop 
coal bed methane is you drill a well to the coal seam 500 or 
1,000 feet deep and you start pumping the water out and you 
release the pressure and then the gas starts to flow.
    We already have some great concerns with coal bed methane 
because the water that is associated with that coal is often 
very high in sodium. The sodium absorption ratio is very high. 
If you just dump that water in one of our rivers and the 
irrigator downstream brings that water back out and irrigates 
his farm, after about eight or ten years, he is going to have 
big reductions in yield because his soil will start turning to 
cement.
    So probably not going to affect us that much because we are 
already regulating that coal bed methane industry. We are 
saying to them, if you have got high sodium water, you are 
going to have treat it before you put it in the river or you 
are going to have to reinject it back into a deeper geological 
structure.
    Montana already has some regulations that are dealing with 
coal bed methane and, frankly, our regulations are different 
than Wyoming's. Wyoming now has about a hundred times as many 
of these coal bed methane wells as us, and they are dumping 
their water into the Tongue and the Powder Rivers that flow up 
into Montana. Then we become the recipient of that sodium. So 
there is kind of a rub between us right now in Wyoming and 
Montana.
    Mr. Coble. I thank you, Governor. Good to have you with us, 
Governor.
    I yield back, Mr. Chairman.
    Mr. Oberstar. I appreciate the gentleman's question. I just 
want to remind the gentleman that in the Energy Act of 2005 
Congress exempted oil and gas exploration from the provisions 
of the Clean Water Act, and that covers the question you asked, 
not that I agree with that. I opposed it vigorously, but I lost 
that argument on the Floor.
    Mr. Coble. Mr. Chairman, you don't lose many arguments.
    Mr. Oberstar. The gentleman from Washington, Mr. Baird.
    Mr. Baird. Governor, I very much appreciate it. It is good 
to see you again and good to have a fellow westerner out here.
    I think you have hit the nail on the head in terms of the 
challenge. This is it. As we say, we are a pretty wet State, 
but we have also got a dry east side as you know.
    The challenge we face is let us suppose you are a farmer 
and it rains a fair bit. Water collects on part of your farm, 
and that gets your farm classified as a wetland. Then you have 
to get the permitting to do anything you want around there.
    One thing I would like to ask you about for the edification 
of the whole Committee is if we were to pass legislation 
preserving the status of the Clean Water Act protects for 
wetlands but not do anything on the permitting side, 
particularly vis-a-vis salmon and other things like that, could 
you enlighten us a little bit about the challenges your State, 
my State and other northwestern States face with environmental 
permitting that doesn't affect States impacted by an ESA 
listing of a species that swims right by your major properties?
    Governor Schweitzer. Well, as you know, in Washington and 
Oregon, they are primarily concerned about a species of salmon 
that likes to swim upriver, and then we built those dams. In 
Montana, we have a white sturgeon.
    It is the doggonedest thing. The time that we need to 
release water from the reservoirs in Montana so that we can 
improve the habitat for the white sturgeon is exactly the wrong 
time for the salmon and vice versa. So since there are more 
Congressmen from Washington and Oregon than we have in Montana, 
we often times end up releasing the waters for the benefit of 
the salmon.
    Here is the way it works on the ground in a place like 
Montana. You want to do some work around your stream or wetland 
or something like that. You go right on into your local 
conservation district, and you first get a 310 permit.
    You have local on the ground farmers and ranchers elected 
from that community that come out and take a look at it and see 
if it makes sense and whether there is going to be any 
deleterious effect to folks around because of that activity. 
They think it is going to be okay. You get your 310 permit.
    If it is on a little bit bigger river, then you need the 
Army Corps of Engineers to come in and do a little work for 
you, to decide whether it is going to be okay. In some unusual 
cases, you are going to have to have the EPA do something. But 
for most of this work, small streams, wetlands, it is probably 
just a 310 permit and it will be issued by your conservation 
district that has been locally elected.
    Mr. Baird. See, we have it different, and I think that 
illustrates one of the challenges that led to the Court 
decision and that is before us today. Even if you have a 
relatively small holding, you may well need to get a Corps of 
Engineers permit, and that is a much more difficult process 
than that which you have just described.
    I think that would be one of the questions, Mr. Chairman, 
the people would have about this is how the permitting 
interface with this legislation will be affected in terms of if 
you don't.
    It is particularly consequential for us in that because of 
the listing of salmon and steelhead and bull trout, we have got 
so many listed species proximal to major metropolitan areas and 
because of lack of staff of Corps of Engineers permitting 
officials.
    The more water areas that fall under jurisdiction, the more 
the permitting demand is. Without a commensurate increase in 
permitting personnel, you have these enormous backlogs. Two, 
three, four, five years is not uncommon. That money that is 
spent both in opportunity costs, direct expenditures, 
permitting, et cetera, could be used in other ways, and it 
could be deeply frustrating to our private landowners. So we 
face this paradox.
    Your point is well taken, Governor, that we want to protect 
the water supply. That includes the aquifers. We get aquifer 
supply from Montana as you know well. Some of our aquifers in 
Washington State are sourced out of Montana.
    Governor Schweitzer. We will send you the bill.
    Mr. Baird. Well, the reason I say that is there is some 
legitimate commerce issues here. Some people say, well, there 
is no commerce clause here. I think there is a commerce clause 
applicable because it does cross State lines, but at the same 
point we have got to deal with this regulatory situation 
because it has a profound impact.
    The Corps, by the way, parenthetically, not only have they 
traditionally been underfunded in terms of permitting staff, 
but the Iraq conflict has pulled some of their best staff. This 
is an anti-Iraq statement. It is just a statement of fact. It 
has pulled some of their best staff off mid-processing time, 
thereby further extending the backlog.
    As we deliberate the Chairman's well intentioned 
legislation, I think we need to look realistically at 
permitting consequences, particularly in States where this has 
an impact.
    I am glad to see you here, Governor, and I yield back the 
balance of my time. Thank you.
    Governor Schweitzer. Thank you.
    Mr. Oberstar. We dealt successfully with permit 
streamlining in the SAFETEA-LU legislation for highways, and I 
hope we can work out a streamlining proposition for the Clean 
Water Act.
    Mr. Gilchrest.
    Mr. Gilchrest. I thank the Chairman.
    I came in a little bit late, but I appreciate your 
recognizing me. I won't be too long because I know Mr. Ehlers 
has been sitting here longer than I have.
    Mr. Oberstar. If you wish to yield to Mr. Ehlers, I will be 
happy to recognize him at this time.
    Mr. Gilchrest. I will just ask two quick questions to the 
gentleman from Montana, and I will yield two minutes to Mr. 
Ehlers who will later get five minutes, so he will get seven 
minutes.
    Mr. Oberstar. In my State, we call that Minnesota nice. Now 
that is Maryland nice.
    Mr. Gilchrest. Maryland nice. We are trying to mix it up 
with Minnesota, Maryland, Michigan, Montana, all the M States.
    Governor, I appreciate you being here and your knowledge on 
this issue.
    I just want to make some quick comments for the Members 
that are here, that the present Clean Water Act, Section 402 
but specifically 404, exempts the following activity from 
needing a permit: normal farming practices, silviculture, 
ranching activities such as plowing, seeding, cultivating, 
minor drainage, harvesting for production of food, fiber, 
forest products, upland soil and water conservation practices.
    All those practices right now do not need a permit. They 
are exempted from a permit in 404.
    Maintenance including dykes, dams, levies, groins, riprap, 
breakwaters, causeways, bridge abutments, et cetera., they 
don't need a permit, not even a nationwide permit; prior 
converted cropland.
    So there are numerous provisions in the Clean Water Act 
right now that recognize the need for that type of commerce, 
especially in the agricultural community.
    The question is and I think Mr. Oberstar has included this 
in the provision of taking the word, navigable, which it seems 
to me in the history of the bill, the word, navigable, up until 
recent years, recent Supreme Court decisions, has basically 
been broadly interpreted as meaning waters of the United 
States.
    But since we are now faced with a couple of Supreme Court 
decisions that make that a little bit difficult to interpret 
that way, my question to you, Governor, is Mr. Oberstar wants 
to take the word, navigable, out and replace waters of the 
United States in the same way that it has been interpreted 
since 1972 up until recent years. Now putting in a provision to 
ensure the agricultural community, that the exemptions that now 
exist for permits under the Clean Water Act, will continue to 
persist after this change has taken place.
    Do you see any problem down the road with past judicial 
precedence or reinterpretation by outside groups that could 
bring lawsuits as being a problem with the proposed changes by 
Mr. Oberstar?
    Governor Schweitzer. Well, it has been my experience that 
as long as we hatch lawyers from our law schools, there is 
going to be reinterpretations of laws that we have written. 
That is how they make a living. And so, whether you pass any 
new legislation or you maintain the legislation that you have 
got right now, you are likely to have some challenges as we go 
forward.
    My caution is simply this: Make sure that the unintended 
consequences do not occur which are to shut down legitimate 
businesses in the natural resource industry that already have 
good filtration systems, that are maintaining a filtration 
system that already exists, that are just simply trying to 
continue an irrigation business in a place that has already 
been irrigating for the last hundred years, and there has been 
no significant damages to the land or any endangered species.
    I think that in the implementation of the rules, we can get 
there. But I would just caution that in writing this 
legislation, make sure that you give adequate authority to 
local folks on the ground to interpret these rules. For 
example, the conservation districts that I mentioned earlier 
that are locally elected, that have the charge of protecting 
the water in each of these conservation districts in nearly 
every agricultural county in America.
    Mr. Gilchrest. Governor, you would not oppose taking the 
word, navigable, out?
    Governor Schweitzer. Actually, I think that the term, 
navigable, has no place in deciding a bill about clean water 
because it doesn't really define those places that are actually 
filtration systems.
    As I have described before, Montana's greatest problems are 
the mines that were left behind at the Continental Divide, and 
you can't float a boat over the top of the mountains because if 
you did, Lewis and Clark would have arrived at the ocean about 
two months earlier.
    Mr. Gilchrest. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Oberstar. I thank the gentleman.
    We will now go to Mrs. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chairman.
    Governor, it is good to see you again, and you talk my 
language, sir.
    Water is a big issue in most of the western States. One of 
the questions I would have for you is have you seen marked 
change in the water yield, the amount of water? Is the climate 
change affecting the amount of water that you are seeing 
whether it is in your streams, in your aquifers, in your flows?
    Governor Schweitzer. I got to tell you. Montana being the 
Headwater State, and I already described to you that our water 
flows to the East Coast and the West Coast and up to the Arctic 
and 70 percent of the water in the Missouri River system and 50 
percent makes it on to Washington and Oregon, the Columbia 
River system from Montana.
    The driest 10 years in history have been during the last 11 
years. We are getting less snow in the high country. It is 
melting sooner in the spring. And so, this recharge system that 
we have created in Montana for the rest of the Country, we are 
finding that that snow that used to last all the way into 
August until we would get some replenishing snow, it is 
disappearing, and some of those high mountain streams are 
drying up.
    We have springs that are disappearing all across Montana. 
Artesian wells are drying up. We are getting less precipitation 
in the high country in Montana, and that affects each and every 
one of you in this Country.
    As we get less snow there, we have less water for the 
rivers that recharge other rivers all across both the Pacific 
Basin, Atlantic Basin, all the way to the Arctic. It is 
affecting our irrigation supply. It is affecting our drinking 
water. It is affecting wildlife habitat.
    Some of our fisheries in the high country, for example, we 
have had to suspend fishing in the afternoon at some of the 
best blue ribbon trout streams in America because we have less 
of that cold water flowing down out of those glaciers, and the 
water has become so warm that it can't contain as much oxygen 
as those fish need, and we are losing them.
    That is something I can't control. The Governor of Montana 
is a pretty powerful guy, but I can't place more snow in the 
mountains in Montana.
    I think you can argue about what is creating the climate 
change, but I don't think there are many people in Montana who 
would be willing to argue that there isn't something going on 
here. There is a climate change occurring.
    Mrs. Napolitano. What are you proposing to do to be able to 
reduce? A lot of conservation, possibly recycling storage? One 
of my biggest issues is recycling.
    How do we educate our people to change with the climate, if 
you will?
    Governor Schweitzer. It is a tough one.
    Mrs. Napolitano. Yes.
    Governor Schweitzer. We don't respond well to things that 
aren't a crisis in this Country. Some of the things that we 
could do are to allow Montana to fill our reservoirs to full 
pool and not send it all down the Missouri so they could float 
a few boats. That would help us in Montana.
    But, ultimately, there is only one way that I can deliver 
more water to the Missouri River drainage system because I 
can't guarantee you any more snow, and I can't make it rain 
just because I pray.
    What I can do is I can tell you about a treaty that we had 
with Canada, Alberta, a hundred years ago. Coming out of 
Glacier National Park, right up at the highest reaches of the 
Continental Divide, there are a couple of rivers. There is the 
Milk River and there is the St. Mary's. We made an agreement 
with Alberta a hundred years ago that we would share the water 
equally in those two drainages.
    Now this is where it gets interesting. The Milk River and 
the St. Mary start in Montana. Then they both flow up into 
Alberta. The Milk River comes back into Montana and ultimately 
flows into the Missouri River. Okay, now you know how you have 
got a dog in this hunt.
    The St. Mary River just heads on up and goes to the Arctic. 
Well, we made a deal. We built an aqueduct that would bring 
half the water over from the St. Mary to the Milk, and then 
they would irrigate with a little bit in Alberta, and it would 
flow down into Montana and it would ultimately go into the 
Missouri.
    Well, that old aqueduct has worn out, and we are not 
getting our full dose of water into the Milk River, so you are 
getting less water in the Missouri River. If you would help us 
out with a few shekels in Montana so we could maintain that 
system, I will promise you we will deliver more water to the 
Missouri River system.
    Mrs. Napolitano. And you would do that by?
    Governor Schweitzer. Well, this aqueduct system that we 
have already built that is leaking and it is worn out, it is 
not able to haul as much water as we used to. If we can get the 
dollars in a cost-share with the State of Montana and with 
Alberta who will put some money in, we can move more water from 
the St. Mary into the Milk River drainage system that 
ultimately goes into the Missouri River instead of just going 
on up to the Arctic.
    Help us out; we will bring you some water.
    Mrs. Napolitano. We will talk later. That is one of my 
issues.
    Thank you, Mr. Chair. I yield back.
    Mr. Oberstar. Mr. Ehlers?
    Mr. Ehlers. Thank you, Mr. Chairman.
    First of all, Governor, thank you for being here. You are a 
very refreshing witness, and I appreciate not only your 
comments but the wisdom behind those comments.
    Mr. Chairman, first of all, I would like to ask unanimous 
consent that my opening statement be entered into the record.
    Mr. Oberstar. Without objection, so ordered.
    Mr. Ehlers. Thank you.
    I think what came through your comments is simply that all 
water is connected, and that is in a sense why I support Mr. 
Oberstar's bill because we can't assume that isolated ponds are 
not connected with other aquifers under ground and above 
ground. They are all connected and we have to take that into 
account.
    That means if you are going to worry about applying the 
law, someone has to go out and look at a particular situation 
and make a judgment as to how that is to be regulated.
    On another issue which is related to water but not related 
to your testimony, Mr. Chairman, I just want to enter into the 
record here my concern over the sad news that British Petroleum 
plans to dump thousands of tons of ammonia and refinery sludge 
into Lake Michigan just north of Gary and under current law is 
allowed to do that. I found that astounding.
    That must be a remnant of the old rule of thumb that 
dilution is a solution to pollution because dumping thousands 
of gallons of ammonia into Lake Michigan and thousands of cubic 
feet of sludge containing heavy metals does not seem to be a 
good solution, but apparently it is legal at this point. So I 
hope we will take that situation under consideration too.
    With that, I will yield back.
    Mr. Oberstar. That is appalling, absolutely appalling. We 
will have to join forces to prevent that from happening.
    Mr. Ehlers. Thank you.
    Mr. Oberstar. We have about an hour of voting ahead of us, 
and I would propose that we recess and not hold the Governor. 
Before we do so, I would like to just go around the room and 
invite Members who have not yet spoken to ask at least one 
question of the Governor without making a speech on it.
    Ms. Hirono?
    Mr. Miller.
    Mr. Miller. Yes, I really have some concerns with the bill. 
California is a different situation than you might face in your 
State. You talked about water carrying pollutants coming down 
from the mountains on the farmers.
    The Clean Water Act in California has been applied so 
broadly through the courts that instead of source of pollution 
going to an industrial source, as it should since they are 
polluting the waters, it goes to a subdivision building homes. 
They say that might be a source of pollution, so you need 
retain all on your water onsite in the subdivision.
    Mr. Chairman, I know who you are and you are a good man.
    My concern that I have in this bill is that it appears to 
me that it is rather vague what waters could be construed to be 
of the U.S. If it is challenged in court by a special interest 
group, it could mean ditches, pipes, streets, gutters, 
drainage, farmland, groundwater, even a wastewater treatment 
plant. It could go to that degree. In many cases, it is being 
expanded beyond the intent today.
    My concern is that that could be the result of this bill 
because I am not sure that the definition is clear enough in 
this bill, what the definition of waters and virtually anything 
that carries waters could be determined to be. I would strongly 
encourage you to review that section of the bill because I 
think if we pass this bill as drafted, the intent in my State 
is going to be horrendous as it applies to try and provide 
affordable housing for the growth that we expect in our State.
    But we all agree on wanting clean water. We all agree that 
we need to do something about that.
    My concern in your State is if this bill is not defined 
more properly, it could mean any waters running off of one of 
your dairies or your farms or whatever, and you could be 
required to keep all that onsite, which in California we really 
do. Our dairy guys have to retain all the water on their 
property that comes from their property. It has been litigated 
to that degree.
    I think that should be a huge concern for your State, and I 
would please ask the Chairman to look into that and make sure 
we are more definitive.
    Mr. Oberstar. I would invite the gentleman's attention to 
Section 6 of the Act, the savings clause which restates the key 
provisions of the Clean Water Act of 1972 and addresses those 
issues, limiting the Act to the purposes of the original law 
and not expanding it beyond that.
    Mr. Miller. I think the original law needs to be more 
defined.
    Mr. Oberstar. Well, if you want to have a debate about the 
Clean Water Act of 1972, that is a different matter but about 
my bill that reinstates, I don't think there is a debate.
    Mr. Arcuri? Mr. Carney? Mrs. Capito.
    Mrs. Capito. Yes. Governor, I represent the State of West 
Virginia, and like my colleague from Washington, Mr. Baird, I 
share some concerns. Our permitting processes with the Corps 
for our coal mining are all held up in litigation. It is very 
lengthy, very costly and very discouraging to those who want to 
get coal out which I do to power America.
    Do you have these same kinds of problems in Montana in 
terms of your permitting for your coal mines and how do you 
think this act will influence that?
    Governor Schweitzer. Well, in all due respect to you and my 
good friend, Joe Manchin, our coal is real close to the 
surface, and so we just peel back 30, 40 feet of soil and go in 
with a front loader and dig it out like gravel. Then when the 
coal is gone, we push all that back in and replant it to native 
vegetation.
    Mrs. Capito. You never have to worry about the intermittent 
stream and all that ephemeral stream?
    Governor Schweitzer. The country where we have most of our 
coal is 10, 11 inch rainfall. There are no creeks running 
through there. We are well above where the aquifers are for the 
most part. Once again, God blessed us on the seventh day when 
he created the Treasure State and we didn't have to be in the 
situation of having to dig inside a mountain in order to get 
our coal. We get it pretty close to the surface with a tractor.
    Mrs. Capito. Thank you.
    I have concerns over the navigable water clause or removing 
that. I certainly am like everybody, wanting the clean water. I 
think it is something we need to work with. I look forward to 
working with the Chairman on this.
    Thank you.
    Mr. Oberstar. I look forward to it. Thank you.
    Mr. Westmoreland.
    Mr. Westmoreland. Thank you, Mr. Chairman.
    Governor, have you read the bill?
    Governor Schweitzer. Yes, I have.
    Mr. Westmoreland. Okay. Did you read the section where it 
talks about waters of the United States and what all that 
includes?
    Governor Schweitzer. I haven't got the bill in front of me. 
You can remind me.
    Mr. Westmoreland. Okay, I will remind you: lakes, rivers, 
streams, intermittent streams, mudflats, sandflats, wetlands, 
sloughs, prairie potholes, wet meadows, playa lakes, natural 
ponds and all impoundments of the foregoing or activities 
affecting these waters.
    Your 310 permit will be a thing of the past because what 
this bill does, it expands the EPA's and the Corps of 
Engineers' authority to these things where now it is navigable 
water. That long arm of Government is going to come into 
Montana, and I hate that because I think you are a very sincere 
person. I know the Chairman is very sincere on clean water. We 
all want clean water.
    This is giving the Corps and the EPA authority over the 
State that you already regulate those things in a way that is 
beneficial for all of us, but that power will now be 
transferred to the Federal Government.
    So that is all the comment I have, Mr. Chairman. Thank you.
    Mr. Oberstar. I want to observe for the gentleman from 
Georgia who has cited this provision and invite his attention 
to the Corps of Engineers Code of Federal Regulations, Part 
328, Definition of Waters of the United States.
    Section 328.3, Definitions: All waters such as intrastate 
lakes, rivers, streams including intermittent streams, 
mudflats, sandflats, wetlands, sloughs, prairie potholes, wet 
meadows, playa lakes and all the other words that we have used 
in this bill are drawn exactly from 30 years of Corps of 
Engineers regulation in accordance with the term, waters of the 
United States.
    This is not a new creation. This is not new regulatory 
authority. It is existing authority, I say to the gentleman and 
I yield to him.
    Mr. Westmoreland. I thank the Chairman for that. I think 
the only thing that has kept the Corps and the EPA out of that 
is the navigable water portion of this bill which we are taking 
out.
    But I respect the Chairman. I know that he has been here a 
lot longer than I have.
    It is just that I have dealt with this in my business. I 
know the Corps. I am going to enter things into the record on 
the Corps that has held up reservoirs for drinking water for my 
county since the early 1970s, and we have not received a permit 
yet. I am very familiar with it, and I understand it.
    I agree with Mr. Miller that we need some redefinition in 
the Clean Water Act, and I know that is a subject for another 
day.
    Mr. Oberstar. Mr. Diaz-Balart?
    All right, thank you.
    The call of the House is more powerful than the call of 
questioning the Governor of Montana. We all have to go and 
vote.
    I just want to reference some very thoughtful comments made 
in your testimony: We believe that all upstream tributaries, 
the waters that discharge into the Missouri, Yellowstone, 
Kootenai and Clark Fork, along with wetlands, are an integral 
part of our Nation's watersheds and affect the health of all 
waters of the United States--a very prescient, very thoughtful 
statement.
    You reference the wetlands that are less than a percent of 
the State, and you say the ecologic and economic importance of 
the waters far outweighs their relative size. You picture for 
us a 50 gallon drum of PCBs leaking into one of the 
depressional wetlands, and the connection between these 
isolated waters and waters of the United States--a very 
powerful image to us.
    It brings us back to the days of the forties and fifties 
when power companies were changing out their transformers, and 
they gave the spent liquid, that inert liquid to county highway 
departments. They spread that on the dirt roads to keep the 
dust down, not realizing, not knowing that it was PCB and that 
it would be washed off the road, into the ditch and from the 
ditch into the creek and from the creek into the tributary and 
the tributary into the river and then into the lake and then 
into the Mississippi, and generations have been poisoned 
because of it.
    That is what you were talking about. That is what you have 
the prescience to understand. We will take to heart your 
counsel and that of Native American people to protect these 
waters into the seventh generation.
    Thank you for your testimony.
    Governor Schweitzer. Thank you very much.
    Mr. Oberstar. The Committee will stand in recess until the 
conclusion of these votes, and we will resume.
    [Recess.]
    Mr. Oberstar. The Committee will resume its sitting.
    We escaped with fewer votes than anticipated, and we will 
continue with testimony of Secretary Curry of the New Mexico 
Department of Environment.
    We thank you very much for journeying a long distance to be 
with us today.
    Please give Governor Richardson my great appreciation for 
making you available.
    He and I served in the House together and traveled to El 
Salvador in pursuit of human rights issues in the early 
eighties, 1982, 1983, where Governor, then-Congressman 
Richardson visited hospitals where there were both wounded 
citizens who had been attacked by the ruling class and soldiers 
who had been attacked by the people resisting oppression. In 
his wonderful way, his warm and his native speaker Spanish 
fluency was able to comfort people on both sides of the 
conflict.
    I think that is where he got his appetite for involvement 
internationally in human affairs issues and later went on to 
the United Nations and to being an intermediary in 
international conflicts. It started with our common excursion 
into El Salvador in pursuit of human rights in Central America. 
I have only the fondest memories of Bill Richardson.
    Mr. Curry. Mr. Chairman, I will certainly pass that on to 
him.
    Mr. Oberstar. We welcome you today on a subject of similar 
magnitude, the Clean Water Act.

  TESTIMONY OF THE HONORABLE RON CURRY, SECRETARY, NEW MEXICO 
          ENVIRONMENT DEPARTMENT, SANTA FE, NEW MEXICO

    Mr. Curry. Thank you, Mr. Chairman. My name is Ron Curry 
and I am the Cabinet Secretary of the New Mexico Environment 
Department in the Administration of Governor Bill Richardson.
    The Clean Water Act has been our Nation's main tool, as you 
know, in ensuring the continued protection of the water we 
drink, enjoy for recreation and that wildlife communities rely 
upon. Unfortunately, the effectiveness of this tool has been 
blunted by two recent Supreme Court decisions. This is 
especially troubling in New Mexico, a very arid State that has 
relied on the Clean Water Act to help us protect our limited 
but very, very precious water resources there.
    It is important for us to remember that the passing of the 
Clean Water Act is one of our Nation's successes. Waters that 
30 years ago were thick with waste discharges now support 
thriving recreation and economic activities. Our quality of 
life has improved and so too has the sustainability of aquatic 
species and wildlife, but now those protections are mired in 
widespread confusion amidst judicial and bureaucratic gridlock 
because it is no longer clear what waters will continue to be 
protected.
    In effect, the Supreme Court has ruled that there are two 
classes of water, one that is tied directly to navigability and 
deserves Federal protection from pollution and the second class 
that is completely abandoned.
    As the man put in charge by Governor Richardson with 
protecting New Mexico's limited water supply from pollution, I 
can tell you and I would hope that those of you have been to 
New Mexico can see this. I will tell you that basing the 
decision on what water deserves to be clean or whether you can 
float a boat on it is an extremely limited view. Quite simply, 
it is lunacy.
    There are times during the summer months when you can't 
float a boat down the mighty Rio Grande. I can tell you since 
the mighty Rio Grande is New Mexico's main water source, there 
have been times when I have been able to walk across the Rio 
Grande without touching any water. So it is indeed lunacy.
    To put it another way, many of you today have glasses or 
bottles of water in front of you. As an analogy, imagine that 
those glasses collectively made up the waters of the United 
States as you look around this room. Before 2001 and the SWANCC 
decision, the water in those glasses was protected by the Clean 
Water Act. However, today because of the SWANCC and Rapanos 
decisions, as much as half of those bottles of water or glasses 
that you have in front of you may no longer be protected.
    I want you to have good clean water in those glasses or 
bottles that you are drinking out of, but if the Supreme Court 
decisions stand, no one can say for sure if that will be the 
case if those were the waters of the United States.
    Nowhere have the limitations created by these two recent 
Supreme Court decisions been felt more acutely than in the 
desert Southwest. We simply have no water to waste in New 
Mexico and in Arizona and the rest of the Southwest. The water 
we do have and its quality is of utmost importance to our 
continued health, citizens and the future economic development 
of our region.
    Additionally, waters within the closed basins that cover up 
to one-fifth of New Mexico would also be left vulnerable to 
pollution. That includes 84 miles of perennial streams, 3,900 
miles of intermittent waters, 4,000 playa wetlands in New 
Mexico and numerous headwaters, springs, cienegas and isolated 
wetlands. Threatened basins include the Tularosa, Mimbres, San 
Augustine, Estancia and Salt in central, south and southwestern 
New Mexico.
    The misguided Court rulings that we have been speaking 
about today also threaten New Mexico's precious limited 
groundwater resources, the source of 90 percent of our clean 
drinking water in the State of New Mexico. Surface water bodies 
are often directly linked to ground water resources. 
Unregulated damaging surface dumping will therefore ultimately 
lead to pollution of the aquifers. We cannot and I ask your 
help in not allowing this to happen.
    The water beneath just one of those basins, the Salt Basin, 
has been estimated by the United States Geological Survey to 
contain as much as 57 million acre feet of water including 15 
million acre feet that is potable. That could prove to be a 
vital and needed future water supply for the rapidly growing 
City of Las Cruces. Therefore, New Mexico also supports efforts 
to ensure that this bill preserves our traditional authority 
over ground water resources.
    Governor Richardson has fought to restore protections to 
New Mexico's waters. In March, 2003, he filed comments with the 
EPA, petitioning that New Mexico's closed basins and other 
imperiled waters remain protected under the Federal Clean Water 
Act. He also has strongly supported the Clean Water Authority 
Restoration Act of 2003, a precursor of the legislation before 
you today.
    The citizens of New Mexico depend on the protection of a 
clean environment and sustainable water supply. El agua es la 
vida. In New Mexico, we say, water is life, and water is life 
in New Mexico and the United States.
    Thank you, Mr. Chairman. I look forward to your questions.
    Mr. Oberstar. I thank you for your very thoughtful 
testimony and your well expressed understanding of the Clean 
Water Act as written and as administered over the years.
    You say whether you can float a boat on the water is an 
extremely limited view and go on to say there are summer months 
when you can't float a boat down the mighty Rio Grande, and 
that is true of much of the arid West, that rivers simply dry 
up. But if you say, well, they have to be running all year long 
in order to be protected, then we won't be able to protect 
waters.
    You correctly observe that the legislation simply restores 
protections, as you put it very well, in place for three 
decades. That is what we are trying to do, just restore the 
purpose of the Act to what it was before the Supreme Court 
legislated on this major water protection legislation.
    I love that you say we in the Southwest have no water to 
waste. That is so true. We have no water to waste anywhere 
frankly.
    I yield to the gentleman from Louisiana, Mr. Baker.
    Mr. Baker. Thank you, Mr. Chairman.
    I want to make an observation that in all things, there is 
balance. I understand certainly your interest in preserving the 
quality of environmental assets for those who follow, and I 
strongly support that. Perhaps there is a difference in the 
manner in which we may choose to follow that.
    I think in the discussion of navigable waterway, adjacent 
wetlands thereto or isolated wetlands, we really in the 
discussion should just move past all that and say we want the 
Corps to have jurisdiction along with the EPA nationwide. Just 
make it simple. In fact, have all those legal hocus pocus from 
SWANCC on. I don't go there, but I think in fairness of the 
philosophic discussion, we ought to at least say that is what 
we want to do.
    In the example previously cited by the Chairman before the 
recess, talking about the distribution of polychlorinated 
biphenyls on a roadway, the fact that occurred is illegal in 
itself because PCBs are prohibited chemicals or very 
constrained utilization. If you distribute that in any unsafe 
or unsound manner, the EPA has statutory authority to pursue, 
fine and, as necessary, take criminal actions against those who 
intentionally violate the environment.
    So I see there are two tracks. On one side, we can have a 
very well defined role for the EPA on all fronts to go after 
anything. If it is someone polluting your ground water in your 
home State, we ought to go after those folks. I don't defend 
that at all, obviously.
    But, at the same time, there is a consequence to actions 
which would define South Mountain in Maricopa, Arizona, which I 
am going to enter the photograph in the record because I think 
it is such a great one. From 1993 to 2000, this, what is called 
a drainage area, carried water 5 times with 182 reported 
rainfall events for a total flow in over seven years of seven 
hours. Now this becomes a waterway, navigable waterway subject 
to the jurisdiction of the Corps. That is where I think the 
equities are not balanced.
    The consequence of that to a landowner is that whatever 
your intended utilization for that property can and most likely 
will be impaired by the findings of a 404 permitting process. 
Now if we were to reach the conclusion that that is in the 
social best interest of all parties affected, then we at least 
ought to have a provision that would enable the Federal 
Government to compensate that landowner whose right of use has 
been taken by the finding by the Corps that the rocks of 
Maricopa were a wetland. That is the balance we are trying to 
find here.
    Do those issues resonate with you or do you think that the 
adoption of the bill as currently proposed overwhelms any of 
those counterbalancing concerns?
    Mr. Curry. Member and Mr. Chairman, I think the bill as it 
is proposed will provide necessary protections not only for the 
environment and the waters that we are concerned about, but I 
think it will provide necessary protections for the property 
owners that you speak of.
    I think in New Mexico, we are concerned many times about 
closed basins, and those closed basins often times have the 
potential to be used for illegal dumping of some sort or 
another.
    Mr. Baker. On that point, let me ask as to your authority 
with the Department of Environment in your home State. What are 
you empowered to do when you see an action being taken that is 
against the public interest or any of the things you are 
concerned about?
    Somebody is playing with the drinking water. What are your 
authorities under State law to prohibit that action from taking 
place?
    Mr. Curry. Mr. Chairman and Member, we are empowered by the 
State legislature to take necessary action to protect the 
health and the environment of New Mexico.
    But what we don't want to run into and why we support this 
bill and why Governor Richardson supports this bill is to find 
clarity in what is being enforced upon, to find clarity in our 
State, like I said earlier, where we don't have the ability to 
navigate down the Rio Grande, where we don't have the ability 
to navigate down the arroyos of northern New Mexico and 
southern New Mexico but where we have situations where there is 
a point source discharge along those arroyos that may only flow 
for only 30 days out of the year. We have to have the ability 
to go in there and enforce in those areas even though certainly 
no boat can ever float down those arroyos.
    Mr. Baker. Defining that property as a navigable waterway 
for the purposes of enforcement under the Clean Water Act is a 
separate and distinct issue from your regulatory authority to 
proceed in the public's interest. When you couple State's 
rights together with Federal environmental rights, there are 
very few things that can occur in this Country today that are 
detrimental to the environment for which there is not a civil 
or criminal penalty. That is the only point I am making.
    I don't know that we need to adopt this particular language 
to resolve your concerns, but I thank you for your appearance, 
sir.
    Mr. Curry. Okay, thank you.
    Mr. Oberstar. I thank the gentleman.
    The gentlewoman from California, Mrs. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chairman.
    Sir, it is great to have you in this hearing. I listened to 
great interest as I was walking in, although late, to your 
remark on the Rio Grande. I was born and raised in Brownsville, 
Texas, and there were pictures in the Brownsville Herald of 
where a shoe would not fit into the river. So I understand from 
that vantage point.
    I am also very concerned some of the issues that most of 
the West is facing in regard to the drought, climate change and 
all of the issues that you are talking about. In the more arid 
parts of the Country, especially in New Mexico, there are many 
entire watersheds, the closed basins, if you will. They are 
very important resources for all of us, but they never connect 
to traditional navigable waters.
    Now, will this make it difficult if not impossible to prove 
a significant nexus to the waters based on the Kennedy test and 
the Agency's new guidance?
    Would you talk about that, the water resources in New 
Mexico, and why are they protected and what is New Mexico done 
to protect them and where does the Federal Government fit in to 
help protect them?
    Mr. Curry. Mr. Chairman and Member, in New Mexico, on the 
area of climate change, just as a note on that because I note 
that you mentioned that earlier, Governor Richardson set up a 
task force. The task force was made up of stakeholders from 
business, from oil and gas which is obviously big in our State, 
from the dairy industry, from people who are advocates for the 
environment. They came up with 69 recommendations, 67 of which 
were passed unanimously by a task force consisting of over 20 
people.
    Some of these recommendations addressed issues like the 
clean car standards, clean tailpipe standards. Some of them 
talked about what we could do to increase our snow pack in 
northern New Mexico and make sure that we were able to continue 
to have that. So the climate change issue is very much aware, 
and we think that we are taking a very forward moving progress 
on that issue as far as what we can do in New Mexico to address 
it.
    When we look at navigable waters in New Mexico, we find 
very few, and that is why it is important that we don't 
consider the waters of New Mexico which cannot be navigated to 
become second class waters. That is what we don't want.
    That is why we support this bill because if this bill does 
not pass, then New Mexico will not only not have the complete 
ability to protect its waters like it has for the last 30 
years. I believe that our waters will become second class 
waters just like a second class citizen. I don't think that is 
good for the next generation or the seventh generation as we 
look forward.
    The Rio Grande is the river that most people who have never 
been to New Mexico think of. The Rio Grande at one time in our 
history of our State was a mile wide at the City of 
Albuquerque. Today, there are times like in Brownsville where 
the river is less than a yard wide for one reason or another. 
It was very navigable back in the early history of Albuquerque. 
It is not now.
    There is an occasion raft race down the Rio Grande, but 
that doesn't mean that we shouldn't protect it. We are 
protecting the silvery minnow in New Mexico. We are protecting 
the river for agricultural purposes in New Mexico, and it must 
be continued to be protected for the historical acequia uses in 
the State of New Mexico.
    The last thing I would say, Member, is that you talk about 
the shoe in Brownsville. I have had the opportunity to be a 
commercial balloon pilot, a hot air balloon pilot for 25 plus 
years in New Mexico. Often times, we had the opportunity to fly 
our craft into the Rio Grande, and we are happy to call it a 
splash and dash. Some days when there is no water flowing in 
the Rio Grande, we refer to it as a mud and thud. It certainly 
is not navigable at that point.
    A lot of times as you move up and down the Rio Grande, what 
you see are people on air boats moving along much as you see 
airboats in the Everglades. So we look to keep New Mexico's 
waters from becoming second class citizens.
    Mrs. Napolitano. What role would the Federal Government 
have in helping you protect them?
    Mr. Curry. Passing this law would be the biggest role that 
I can tell you right now because with the Federal decisions, we 
have been left with the morass of uncertainty.
    Mrs. Napolitano. Is there anything that would enlighten us?
    I chair the Subcommittee on Water and Power. I have a great 
concern about climate change, about pollution, if you will, 
because even though we may have enough water in the rivers and 
in our streams, if they are polluted they are going downstream 
and hurting somebody or going to endanger the ecosystem or hurt 
the fish. How are you protecting your streams from that 
happening?
    Mr. Curry. Member and Mr. Chairman, I want to focus again 
back on the Rio Grande. We have 19 Native American pueblos 
along the Rio Grande in New Mexico. Some of those pueblos have 
attained the ability from the Federal Government to set their 
own water quality standards, and that has caused some economic 
concerns.
    There is a pueblo of Ysleta that sits south of Albuquerque. 
There is a pueblo of Sandia that sits north of Albuquerque. The 
pueblo if Ysleta back in the early nineties set its own 
standards for water quality, and the City of Albuquerque has to 
adhere to those standards. So in a very direct yet indirect way 
the Federal Government, by empowering the Native Americans in 
our State to set their own water quality standards has helped 
improve the water quality standards in New Mexico.
    The other thing that I would ask the Federal Government to 
continue to help us on: In the lower Rio Grande in New Mexico, 
we have a number of studies going on to remove and understand 
the salinity problems that exist in the lower Rio Grande in New 
Mexico before it passes over in to become a border river with 
the State of Texas in Chihuahua. So those two issues, the 
salinity issue in the lower Rio Grande is very important to the 
State of New Mexico.
    Mrs. Napolitano. Thank you for your indulgence, Mr. Chair.
    Thank you, Mr. Curry.
    Mr. Oberstar. The gentleman from Pennsylvania, Mr. Carney.
    Mr. Carney. Thank you, Mr. Chairman.
    Thank you, Secretary Curry, for joining us today.
    Many of the opponents of the clean water protection say 
that they think that the protection of so-called isolated 
waters, non-navigable tributaries and many types of wetlands 
should be left up to each individual State. Often times, 
however, when States try to pass their own statutes or 
regulations, many of these efforts are vigorously resisted by 
polluters.
    We understand that the State of New Mexico has recently 
undergone such a contentious debate and won its case. 
Congratulations. Can you tell us more about that?
    Mr. Curry. Yes, sir, Member and Mr. Chairman. Through what 
we have in the New Mexico, the Water Quality Control 
Commission, we went through an exercise where we essentially 
tried to decouple the State of New Mexico from the Federal 
standards. So we would have the opportunity so that we would 
have a better chance of having our own water quality standards 
that were separate from the confusion that existed at the 
Federal level.
    We were successful through the Water Quality Control 
Commission, and then those efforts were appealed to the State 
Court of Appeals. We prevailed.
    At this point, we are in the process of continuing to 
decouple in that area, and that will give us the authority to 
continue to do in New Mexico that which we lost in 2001 but 
what we had been doing for the 30 years, 3 decades, prior to 
that. It will give us the ability to continue to protect those 
rivers because of that court of appeals decision. We graciously 
accept your congratulations.
    Mr. Carney. Thank you. No further questions, Mr. Chairman.
    Mr. Oberstar. Mr. Arcuri, no further questions?
    Mr. Gilchrest.
    Mr. Gilchrest. Thank you, Mr. Chairman.
    I guess I would ask the same question I asked the Governor 
of Montana. Do you see any problems with the Chairman's 
legislation which will essentially in my judgment, and you can 
correct me if I am wrong on this, keep intact the jurisdiction 
of the Corps and EPA for the Clean Water Act over waters of the 
United States, not change essentially the legal precedents that 
have evolved over the last so many decades but make it clearer 
that waters of the United States include tidal waters, non-
tidal waters, ephemeral streams, those kinds of things for a 
myriad of purposes: flood storage, erosion control, sediment 
control, nutrient management and those kinds of things?
    Do you see or foresee any problem with taking that term, 
navigable waters, out of the Clean Water Act and leaving intact 
essentially what I think you just described as protecting 
waters of the United States?
    Mr. Curry. Member and Mr. Chairman, I would say no. We are 
concerned in New Mexico about ephemeral waters because we have 
so many areas and so many sources in New Mexico that run 
intermittently. We want to have the ability to protect those 
even though they are not navigable. Just on that basis alone, 
we feel confident in supporting this legislation.
    Mr. Gilchrest. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Oberstar. I thank the gentleman.
    Again, the gentleman from Maryland has reaffirmed what our 
witness today, Mr. Curry, has said and what I have--how should 
I say--elucidated on numerous occasions and in my opening 
remarks today, and that is the purpose of the Clean Water Act 
was stated very clearly in the opening paragraph's definition 
of terms in 1972: ``to restore and maintain the chemical, 
physical and biological integrity of the waters of the United 
States.'' The Act has been interpreted in that broad sense for 
30 years.
    The Supreme Court, in an activist decision, this group of 
justices came in saying, well, we don't want an activist court, 
but then they became one. They overturned the meaning of the 
Congress in this legislation. They said, no, there has to be a 
connection to navigability, but for 30 years the Act has been 
interpreted in this broad sense of the 1972 Act, the waters of 
the United States.
    Deleting the term, navigable, in the body of the Act simply 
reaffirms 30 years of practice by the Corps of Engineers and 
the EPA and the States and all their subdivisions in 
administering this Act. That is purely and simply what I 
attempt to do with this legislation, what all the co-sponsors 
want done and what so many others throughout the Country want 
to accomplish.
    To make it clear that we are not expanding this authority, 
we included Section 6, the savings clause that deals with, that 
restates all the limitations on the Act that were enacted in 
1972.
    Now, your statement on the second or third page of your 
testimony, I think, is so illustrative of the importance of 
this broad interpretation, and that is your reference to the 
Salt Basin estimated to contain as much as 57 million acre feet 
including 15 million acre feet potable. But if the aquifer, you 
say, is allowed to be polluted by surface dumping, its benefits 
for future New Mexicans will be severely curtailed.
    Now that dumping could come from an intermittent stream 
above that basin or in another State that only a few weeks or a 
few months of the year is an operating body of water in which 
you could float a boat, a canoe maybe or pirogue if you are in 
Louisiana. Yet, toxics dumped into that water could get into 
this aquifer and poison it. Isn't that what we are trying to 
get at?
    Isn't that what the purpose of the 1972 Act was to give the 
Federal Government, give the State Governments authority to 
prevent such pollution?
    Mr. Curry. Mr. Chairman, I concur completely. I can think 
of an example if you would bear with me.
    In Albuquerque, about three years ago, there was an oil 
spill in the south valley of Albuquerque. It was a relatively 
small spill, several thousand gallons, and it came from a used 
oil company. It ran down, and it was within a mile of the Rio 
Grande in Albuquerque. It ran down a concrete ditch. When the 
concrete ditch ended, it ran into a dry arroyo, a dry earthen 
ditch.
    We looked around, and we were concerned that we didn't have 
the authority to go in there with the proper enforcement 
activity to get after the particular polluter involved in this. 
We ended up using some other acts within our State's ability to 
get in there to ensure that we got it cleaned up. There was, if 
I remember, a small penalty, but our concern was getting it 
cleaned up so that it would not go from the arroyo into the Rio 
Grande. That is an example of what you speak, of what we are 
trying to do.
    Mr. Oberstar. I greatly appreciate your thoughtful and wise 
testimony and the experience of your State. We particularly 
appreciate the views of the governors who represent those arid 
regions of the Nation for whom water is so precious and whose 
protection is so critical. Thank you very much for your 
contribution today.
    Our next panel includes Professor Robert Percival, the 
Robert F. Stanton Professor of Law from the University of 
Maryland, Professor Kim Diana Connolly, University of South 
Carolina School of Law, and Mr. Reed Hopper of the Pacific 
Legal Foundation.
    We welcome you all and thank you for being with us today 
and for your contribution. I have read your testimony, 
respective testimonies previously, and I am very impressed with 
your thoughtful presentations.
    Professor Percival, we will begin with you.

 TESTIMONY OF ROBERT PERCIVAL, ROBERT F. STANTON PROFESSOR OF 
  LAW AND DIRECTOR, ENVIRONMENTAL LAW PROGRAM, UNIVERSITY OF 
   MARYLAND; KIM DIANA CONNOLLY, ASSOCIATE PROFESSOR OF LAW, 
   DEPARTMENT OF CLINICAL LEGAL STUDIES, UNIVERSITY OF SOUTH 
  CAROLINA SCHOOL OF LAW; M. REED HOPPER, PRINCIPAL ATTORNEY, 
                    PACIFIC LEGAL FOUNDATION

    Mr. Percival. Chairman Oberstar, Congressman Baker and 
Members of the Committee, thank you for inviting me to testify 
today.
    I am Robert Percival, the Robert Stanton Professor of Law 
and Director of the Environmental Law program at the University 
of Maryland School of Law.
    The topic of this hearing is extremely important. The U.S. 
has been a world leader in environmental law. During the 1970s 
and 1980s with overwhelming bipartisan support, Congress 
enacted landmark legislation to protect the environment. Due to 
the foresight of those Congresses, our water and air are much 
cleaner and our citizens are safer and healthier than in 
countries that only belatedly developed environmental laws.
    Yet now, 35 years after enactment of the Federal Water 
Pollution Control Act, we find some of the most fundamental 
premises of our environmental laws under assault in the courts. 
The sharply divided Supreme Court has created confusing new 
loopholes in the vital legal infrastructure that protects our 
environment, and it is essential that Congress repair our legal 
safety net.
    There are four basic points that are covered more 
extensively in my written testimony that I would like to 
emphasize in my brief oral statement today.
    First, Congress properly recognized in 1972 that a 
comprehensive approach would be necessary to protect the 
Nation's water. Thus, it intended to exercise the fullest 
extent of its constitutional powers when it adopted legislation 
requiring permits for all discharges of pollutants or dredged 
or filled material that would degrade the Nation's waters.
    Second, initially, the courts_and for 30 years nearly_
properly recognized that Congress had acted wisely when it 
entrusted the U.S. Army Corps of Engineers and the U.S. 
Environmental Protection Agency with the responsibility to 
implement this program. Thus, in its 1985 Riverside Bayview 
decision, the Supreme Court unanimously deferred to these 
agencies in upholding the broad application of the Clean Water 
Act to wetlands not contiguous to open waters.
    Third, as a result of two sharply divided Supreme Court 
decisions, one 5-4 and the other 4-1-4, SWANCC in 2001 and 
Rapanos in 2006, every one now agrees that confusion reigns 
over the scope of Federal jurisdiction to protect the Nation's 
waters. This confusion benefits no one and can only be 
dispelled by the adoption of new legislation clarifying the 
scope of the Act.
    Fourth, Congress has ample constitutional authority to 
restore the Act to its initial premises.
    As a result of the SWANCC and Rapanos decisions, the most 
fundamental question one asks about any regulatory statute_to 
what does it apply_is in a state of confusion today. This 
confusion threatens to undermine not only the particular 
program challenged in those cases, the Section 404 program to 
protect wetlands, but also other programs that rely on the same 
jurisdictional term, waters of the United States. These include 
the Section 402 permit program for point source discharges of 
water pollutants and the Act's oil spill prevention program.
    Rapanos has produced the bizarre result that the law 
currently defining the scope of Federal jurisdiction reflects 
the views of a single Justice that were rejected by each of the 
eight other Justices. Moreover, no one seems to know how to 
apply the significant nexus test created by Justice Kennedy in 
this case. This has spawned new legal challenges and enormous 
uncertainty.
    In light of the enormous confusion created by the Court's 
4-1-4 split in Rapanos, Congress should amend the Act to 
clarify the scope of Federal jurisdiction. The simplest 
approach would be for Congress to return to the scope of 
Federal jurisdiction under the Clean Water Act which prevailed 
for 30 years prior to SWANCC and Rapanos.
    This approach should command bipartisan support because it 
would endorse the very interpretation of the waters of the 
United States so ably advanced by the Bush Administration's 
Solicitor General in the Rapanos cases. This approach would 
also have the virtue of ensuring that agencies need not revise 
their regulations that predate SWANCC and Rapanos. It would 
promote legal stability by retaining long-held interpretations 
well known to agency officials and the private Bar.
    When I was a law clerk to Justice White, who was the author 
of the unanimous decision in Riverside Bayview, he once said to 
me he couldn't understand why some justices believe that what 
Noah Webster had in his mind when he came out with this first 
dictionary in the 19th Century was more important for statutory 
interpretation than what was in the minds of the Members of 
Congress who passed the actual legislation. I suggest that 
those are very wise words.
    When Justice Scalia responded to the criticism that his 
extreme view in the Rapanos case would be very damaging to the 
environment, he essentially said: So what? It is not my fault. 
Congress did not speak clearly enough.
    I urge you to take this opportunity to speak clearly by 
amending the Act to restore it to the long-held interpretation 
prior to these two decisions.
    Thank you, Mr. Chairman.
    Mr. Oberstar. Thank you for those very enlightening remarks 
and for that explicit insight into the mind of Justice Scalia. 
Thank you.
    Professor Connolly.
    Ms. Connolly. Mr. Chairman, Congressman Baker, 
distinguished Members, good afternoon. It is an honor and 
privilege to be here today.
    My ultimate message will boil down to one important truth. 
Congress must take immediate action and enact legislative 
language to straighten out the mess that regulating wetlands 
and other waters in the United States has become in recent 
years.
    You can read more about my background in my written 
submission, but it might be interesting to know that I have 
come to this conclusion after years of work including practice 
here in Washington, D.C., representing the regulated community 
as well as scholarly work.
    Your staff has prepared an excellent background paper, and 
Professor Percival has provided coverage of crucial points. So 
I am not going to go over these remarks about the current state 
of the law. I do want to make a couple of other important 
points.
    Wetlands and other waters differ depending on locations due 
to a variety of factors including soil differences, topography, 
climate, hydrology, water chemistry. Yet, regardless of their 
differing nature, scientists have demonstrated that adjacent 
wetlands, tributaries of virtually of all types and headwaters 
are inseparably bound up with other waters. Through their 
connectivity, they are essential to the maintenance of the 
quality of our Nation's waters.
    I believe that in 1972 and again in 1977, Members of 
Congress did their best to set forth a clear path for what the 
Clean Water Act should cover in terms of navigable waters. As I 
argued on behalf of a bipartisan group of current and former 
Members of Congress in a Supreme Court brief in the Rapanos 
case that I was privileged to co-author last year, it is clear 
the intent of Congress when passing the Clean Water Act was to 
embrace the broadest possible definition of navigable waters 
when it defined that term as all waters of the United States.
    You have read in your staff-prepared memo about the 
Riverside Bayview Homes case. You have read and heard today 
about the Solid Waste Agency case. The subsequent legal 
interpretations of the 2001 Solid Waste Agency decision by 
various courts did find it to be very narrow in most cases.
    But the agencies gave mixed signals as to how they were 
going to proceed in dealing with the areas of jurisdiction. GAO 
studies demonstrated there was confusion among Corps staff. 
Stakeholders on both sides continued to battle in interpreting 
the geographic jurisdiction.
    During these years, the first and second Clean Water 
Authority Restoration Acts were introduced in Congress, and 
some good progress was made, but perhaps because of the then 
leadership, those legislative efforts did not receive the 
attention that I think they deserved.
    But it has become more important. The United States Supreme 
Court got involved again, leading to the most recent set of 
opinions that we have heard about today in the consolidated 
Rapanos and Carabell cases. These are very, very academically 
interesting cases. They leave stakeholders, except for law 
professors who like to write about these kinds of things, 
without much comfort.
    Now we have got guidance. We have got this set of guidance 
that the Corps and EPA has put out almost a year later to 
interpret how the term, navigable waters, should be read in the 
field, but I use the term guidance loosely. It does not read as 
a document I would find very guiding if I were an EPA or Corps 
employee trying to make a particularized decision in the field 
with respect to a particularized permit application. It leaves 
more questions unanswered than answered.
    As the frontline regulator, the Corps processes close to 
90,000 permit applications and 100,000 jurisdictional 
determinations a year. Significantly, less than 1 percent of 
permit applications are denied. So the odds are if you apply 
for a permit that you want to undertake development in waters 
of the United States, you are likely to receive such a permit. 
Admittedly, it will require some investment of resources, take 
some time, but at the end of the day you are likely to get your 
permit and be allowed to undertake activities.
    Recent research that I did and was published in an article 
in the Environmental Law Reporter shows customer service 
surveys filled out by thousands of permit applicants after 
undertaking the process of going through this Corps process 
show that they are happy, if not delighted, with the permitting 
process. Though some applicants express concern about the time 
the permit process requires, a few others have some other 
complaints, an impressive percentage give the Corps perfect 
marks in their overall ranking of the permitting experience.
    So, contentment with the current system? Yes, but it is my 
belief that Congress must act, must amend the Clean Water Act 
now.
    I personally believe that the bill before this Committee 
could have gone farther. I think that it might have wanted to 
deal with the so-called Tulloch Rule interpretations of the 
term, discharge, maybe even mitigation, but I think it is an 
important step.
    I am aware that there are some who question 
constitutionality of the pending legislation. I will not 
belabor the point here because of time constraints but simply 
state it is my belief that this proposed legislation is 
constitutional.
    Finally, in closing, I want to reiterate something I wrote 
to conclude a recent piece published in a book of essays. My 
essay was looking into whether there could be a happy ending in 
the jurisdictional debates. I wrote there: It seems to be 
precisely some new magic words from Congress that are needed to 
rectify the situation. H.R. 2421 contains appropriate words to 
bring us closer to happily ever after when it comes to our 
Nation's waters.
    Thank you.
    Mr. Oberstar. Thank you very much for your thoughtful and 
well expressed testimony.
    Mr. Hopper, welcome and you are recognized.
    Mr. Hopper. Thank you, Mr. Chairman.
    I think that the best indicator of Congressional intent is 
to be found in the language actually adopted by Congress. After 
all, this is what the Federal officials have to work with, the 
regulated public and the courts themselves.
    As you have noted, Mr. Chairman, the broad statement of the 
objective was clear. The objective of this Act indicated, as 
you mentioned in the first line of the Clean Water Act, it was 
to restore and maintain the integrity of the Nation's waters.
    However, in the next line, Congress adopted this language: 
In order to achieve this objective, consistent with the 
provisions of the Act, the national goal is to eliminate 
discharges into the navigable waters.
    The other provisions referred to here of Section 404 and 
other provisions of the Act used these terms, navigable waters 
and waters of the United States, which had been employed in 
previous acts and for 150 years did have a settled meaning, 
meaning actual navigable channels. These same terms were 
employed in the Clean Water Act without being redefined.
    In addition, on the same first page of the Act, Congress 
indicated another objective which was to recognize as a policy 
of Congress that it is the primary responsibility and rights of 
States to prevent, reduce and eliminate pollution and plan the 
development and use of land and water resources.
    Still, for 30 years, no consistent jurisdictional standard 
was applied by the Corps. This was proven in a GAO audit in 
2004 in which the GAO reported and demonstrated that if you 
take any three officials from a Corps district office, you will 
get three different interpretations as to the jurisdiction of 
the Corps.
    In ensuing years, we had the development of the Supreme 
Court decision, Riverside Bayview, which indicated a broad 
authority under the Clean Water Act followed by SWANCC which 
implied a narrow authority under the Clean Water Act. We had 
split decisions.
    So to clarify the Federal jurisdiction under the Clean 
Water Act, we brought the case of Rapanos to the United States 
Supreme Court. We did not get the clarity we had hoped. As is 
clear now, we have a 4-1-4 split.
    We have the dissent, four justices indicating that anything 
goes. All water should be subject to Federal control. We have 
Justice Kennedy in his lone concurrence, providing for a 
jurisdictional standard under his significant nexus test. Then 
we have the four in the plurality who suggest that the 
jurisdiction should be limited to relatively permanent 
traditional standard type of streams, lakes and rivers and 
abutting wetlands that are inseparably bound up.
    There has been a three-fold response on the Federal level. 
The courts now are split again. The Seventh Circuit in the 
Gerke case and the First Circuit in the Johnson case have come 
at loggerheads as to how to understand or interpret the 4-1-4 
split in Rapanos. We have the Seventh Circuit that says that 
the Kennedy approach is controlling along with the Ninth 
Circuit. We have the First Circuit saying that Federal 
jurisdiction could be established under either the Scalia 
plurality or the Kennedy significant nexus test.
    Then we have, as was already mentioned, the reference to 
the new agency guidance, which is anything but. It means, I 
think, business as usual. What the Corps will not regulate 
categorically, it will regulate under the significant nexus 
standard. We think that this is a pro forma test because the 
Corps of Engineers is already on record as arguing that all 
wetlands and indeed all waters are significant.
    That brings us to the current state of affairs where we 
have the proposal here of the Clean Water Restoration Act. The 
language in this Act suggests that Congress would exercise 
authority over all intrastate waters and with the exception of 
the farm exemptions that are mentioned, it would intrude, I 
think, in an unprecedented way into States' rights.
    I think it far exceeds any reasonable interpretation of the 
language that was actually adopted in the Clean Water Act. I 
think it does exceed the current regulations, and I think in 
addition it raises constitutional questions. Under current 
Supreme Court commerce clause analysis, it is unlikely that 
this broad reach would be sustained.
    Thank you.
    Mr. Oberstar. Thank you very much, Mr. Hopper, for being 
with us and for a contrasting view on this subject. I know you 
argued before the Supreme Court on the SWANCC case. Am I 
correct?
    Mr. Hopper. Yes, that is correct.
    Mr. Oberstar. You do refer in your testimony and you 
repeated a moment ago to the intradistrict inconsistencies and 
the interdistrict disagreements, but most of those were post-
SWANCC case where there was a great deal of confusion sowed.
    Not to say that the Corps in all of its districts 
throughout the Country has had a consistency, a slavish sort of 
consistency to interpretation of the Clean Water Act. To be 
sure, there are differences in the way the Act was applied. 
Those differences, in my experience sitting in hearings in this 
Committee over 33 years now, are because of differing 
conditions within the various Corps districts.
    But in your view of consistent application of the Clean 
Water Act, does the body of water have to be navigable? That is 
one on which a boat can be operated even down to a canoe?
    Mr. Hopper. Are you referring to what the Supreme Court has 
now decided under the Rapanos decision?
    Mr. Oberstar. Your view of the Act. You have read the Clean 
Water Act. You argued the case. You know it. Tell me what your 
view is, not the Supreme Court's views, your view.
    Mr. Hopper. Well, we thought that the Supreme Court was 
correct in the SWANCC decision when the Court looked at the 
history of the Act, looked at the legislative structure and the 
language of the Act and concluded that Congress did not intend 
to exercise anything more than its power over navigation. We 
think that was a correct reading of the Act as written.
    However, the Supreme Court has come to a different 
conclusion under the Rapanos decision. Even the plurality has 
backed off of SWANCC and given a broader reading than appeared 
to occur with the SWANCC decision.
    Mr. Oberstar. You would not insist on navigability. That is 
actually assuring that the smallest water conveyance would have 
to operate on the water in order for authority to be regulated.
    Mr. Hopper. That is correct. I would not insist on that, 
and I don't think that the Supreme Court now does under any 
reading of the Rapanos decision.
    Mr. Oberstar. I have read so much in the aftermath of the 
Supreme Court decisions, so much commentary about the Act and 
how it has been interpreted before I crafted the legislation 
pending before us. I marvel at various commentators' view of 
what Congress intended.
    First of all, there is the very plain language of the Act. 
Secondly, there is the very plain application of that Act over 
a period of 25, 27 years until the SWANCC case. How the Court 
could have gotten so far off base is a puzzlement to me.
    I sat right here in this room. We negotiated for 11 months 
with our Senate counterparts on the provisions of the Clean 
Water Act. It was very clear to us as staff and then to our 
principals, the Members of the House and Senate, that they 
wanted a departure from the past, from the Federal Water 
Pollution Control Act of 1956, 1961 and subsequent, that 
clearly it wasn't doing the job. We weren't getting at the 
problem.
    You had to deal with watersheds. You had to go to the 
source. You had to go to protect particularly the wetlands, the 
marshes, the peat bogs which are the filtering agents, the 
coastal wetlands that are the buffering agents against storms 
to give this Act the broadest authority to clean up our waters.
    The term, navigable, stayed in the Act in various places 
because we were recycling the 1899 Rivers and Harbors Act or 
also known as the Refuse Act. Thirty years of practice ought to 
mean something, but apparently it didn't for that first court 
case.
    Mr. Hopper. You do recall, Mr. Chairman, that in SWANCC the 
Supreme Court pointed out that in 1974, two years after the 
passage of the Federal Water Pollution Control Act, that the 
Court interpreted the term, navigable waters and waters of the 
United States, to mean traditional navigable waters and said 
that the Corps got it right then, the correct understanding of 
the intent of Congress.
    I would differ with you about this so-called 30 years of 
consistent application. The fact is that the Corps has never 
defined the word, tributary. This was a bone of contention in 
the Rapanos case. This was a free-wheeling definition, ever 
changing.
    Originally, the Corps just disclaimed any jurisdiction over 
ditches and the like. Then now suddenly only in the litigation 
in the Rapanos case, for the first time, did we hear the 
Government arguing that navigable waters and waters of the 
United States meant anywhere water flows regardless of its 
impact on downstream navigable waters. That was not a 27 or 30 
year consistent application or interpretation of the law. That 
was ad hoc.
    Mr. Oberstar. You are right. Initially, the Corps didn't 
quite know what to do with this new authority. They were 
puzzled about what to do with the much broader authority the 
Congress intended for them, and they stumbled around.
    Then they published a set of regulations on Section 404 
which is two paragraphs, and they produced 34 pages of 
regulation in the Federal Register which one of my colleagues 
called the Miracle of the Loaves and Fishes, the multiplication 
of terms, but the Act was implemented.
    Now, Professor Percival, you say and rightly so that more 
than 98 percent of the Nation's waters are not navigable and, 
in fact, the quality of navigable waters is significantly 
affected by pollution entering their non-navigable tributaries. 
Can you protect waters of the United States without having a 
broad interpretation?
    Mr. Percival. No, absolutely not, and that is why Congress 
intended to be as comprehensive as possible.
    I would just commend to the Committee for historical 
purposes the excellent article written by Lance Wood who has 
been legal counsel to the Corps for all these years, that was 
published. It is cited in footnote 31 of my testimony and was 
published in the Environmental Law Reporter in 2004.
    He specifically responds to what he deems the misguided 
notion that that original 1974 interpretation by the Court 
should carry any weight at all, given that they were doing 
precisely what you just indicated that they were doing. It was 
their first cut, and they didn't really think about it very 
much.
    It is now absolutely clear that unless you have a broad 
interpretation of the jurisdictional scope of the Clean Water 
Act, it is not going to accomplish what Congress intended 
because polluters will simply be able to move further upstream, 
dump their pollutants and escape all Federal jurisdiction.
    Mr. Oberstar. Thank you.
    What this legislation is turning into is something I didn't 
intend and didn't foresee--maybe I should have--that it was 
going to unleash a great redebate over the Clean Water Act. 
That is a good thing. That is a healthy thing.
    Before I go on to Mr. Baker, let me ask. From the 
standpoint of the Constitution, is the commerce clause 
authority of the Congress limited to traditionally navigable 
waters, Mr. Hopper?
    Mr. Hopper. No, I think it is clear that it is not. Under 
the recent Supreme Court decisions of Lopez and Morrison, the 
Court has adopted a standard whereby commerce clause 
jurisdiction can be established if the activity that is 
regulated substantially affects a traditional navigable water, 
and so I think that is the standard now.
    I do not think that the bill that is proposed would pass 
muster under those standards, but you are correct to say it is 
not limited to channels.
    Mr. Oberstar. Thank you.
    Professor Connolly?
    Ms. Connolly. I believe that the bill as proposed would 
pass muster. I think that it is clear that when you look at the 
jurisprudence of the commerce clause, particularly in the 
environmental setting, there hasn't been a Court decision that 
has found that there has been overreaching.
    I think that what you have done in the bill is very clearly 
set forth that the tests that currently exist in the 
constitutionality under the commerce clause and other sections 
of the Constitution that are impacted by this are met by this 
standard and that Congress clearly has the authority to 
regulate activities in waters under the Constitution.
    Mr. Oberstar. Professor Percival?
    Mr. Percival. I would just emphasize that even Justice 
Rehnquist, who is the architect of the Court's new 
jurisprudence limiting Congressional power in the commerce 
clause as far back as 1979, conceded in the Kaiser Aetna case 
that Congressional authority over the waters of this Nation 
does not depend on a stream's navigability, that if you are 
really trying to protect the waters of the United States, 
Congress has very broad powers.
    I would just add that it is certain that this bill could 
not be unconstitutional because your objective is simply to 
extend Federal authority to the limit of Congress' powers, so 
it is almost a tautology. Congress is not saying that we are 
going to exceed our constitutional powers. It is just that you 
are going to give the Corps and EPA as broad authority as is 
possible under the Constitution, and it is undoubtedly the case 
that the Corps' longstanding regulations would satisfy those 
constitutional tests even under the Court's current 
constitutional jurisprudence.
    Mr. Oberstar. Thank you very much.
    Mr. Baker.
    Mr. Baker. Thank you, Mr. Chairman.
    For the sake of defending the Court's honor, I want to 
revisit just briefly judicial and regulatory history on the 
matter, Professor, and ask your comment as to where you think I 
might have missed it.
    In the case of the 1972 amendments, I will refer to as the 
Act, when you look to the Act and as to the definition of 
navigable waters, it simply states the waters of the United 
States including the territorial seas and there is no further 
clarification at that point.
    In looking to legislative guidance in the matter, I read 
with interest the Floor remarks of Senator Muskie, a Democrat 
from Maine, who made the following statement, and I read an 
excerpt acknowledging that.
    ``One matter of importance throughout the legislation is 
the meaning of the term, navigable waters of the United States 
The conference agreement does not define the term. The 
conferees fully intend the term, navigable waters, be given the 
broadest possible interpretation unencumbered by agency 
determinations which have been made or may be made for 
administrative purpose.''
    Everybody gets excited when they hear that, but they have 
got to read the next line. That statement is made in the 
context of the debate forum in which they were in. At that 
time, there were navigable waters not subject to jurisdictional 
claim.
    ``Based on the history of consideration of this 
legislation, it is obvious that its provisions and the extent 
of application should be construed broadly. It is intended the 
term, navigable waters, include all water bodies such as lakes, 
streams and rivers regarded as public navigable waters in law 
which are navigable in fact.''
    So the Senator made a statement which, to me, makes clear 
that in the context of the regulatory regime in 1972, there 
were in fact navigable waters not subject to the Corps' 
jurisdiction, and he was making a statement of clarity that the 
Clean Water Act was to extend that jurisdictional reach to all 
navigable waters at that time.
    We go on. Pursuant to the actions of the Congress in the 
adoption of the 1972 Act, the EPA and the Corps then proceeded 
to take two differing approaches in interpreting the 
legislative direction. The EPA navigable waters definition was 
much broader. I won't read that. I will go on for time's sake.
    The Corps, on the other hand, rejected the EPA's broader 
interpretation and viewed the Clean Water Act as requiring it 
to assert jurisdiction over all the traditional navigable 
waters including those traditional navigable waters that it had 
previously declined to regulate.
    That seems to legitimate the Senator's view that expanding 
the jurisdiction was, in essence, expanding it to navigable 
waterways, not to, at this point, isolated wetlands. We get to 
that down the road.
    The National Resources Defense Council then, in response to 
the Corps' definition in 1975, filed in district court a D.C. 
action which the Court then ordered the Corps to develop 
regulations clearly recognizing the regulatory mandate of the 
Water Act. It did not specify what that action was, but it said 
do better than where you are.
    It took the Corps a while, until 1977, before the final 
rule was issued. By that time, the EPA had taken additional 
aggressive actions through regulation expanding and continuing 
the inconsistencies between the Corps and the EPA because the 
Corps could not catch up to the EPA because of the slowness of 
their rule promulgation.
    In 1985, the Court, pursuant to Riverside Bayview Homes 
case, seemed to give a victory back to the EPA, requiring 
wetlands regulation but that directly abutted open navigable 
waters consistent with the Clean Water Act. So we still have at 
the root of the definition as of the Riverside case a basement 
using navigable waters but extending the Clean Water Act reach 
now to wetlands abutting a navigable waterway or a distributary 
to that waterway.
    SWANCC comes along. For those who have not--I think for 
purposes of record--had the delightful time sitting down, 
reading that a page at a time should know that this was a 
gravel strip mine which had trenches left by the mining that 
resulted in the formation of seasonal ponds that were from a 
tenth of an acre to several acres in size on which migratory 
birds would nest in the season.
    The Supreme Court concluded in that case that the Corps had 
extended beyond its jurisdiction in enforcing the migratory 
bird rule in this instance. After evaluating the plain meaning 
of the statute and the contemporaneous interpretations of the 
Corps as well as its own precedent, the Court found the 
migratory bird rule to exceed the Corps' jurisdiction over the 
plain language of the CWA. The CWA grants jurisdiction only 
over navigable waters, so we get that same repeat language.
    What I am trying to establish for the record is that this 
Court did not wake up after drinking bad water and come up with 
this navigable waters idea. It started from the Floor 
statements of Senators during the course of legislative 
consideration and is replete with repetitive explanation 
through the jurisprudential record.
    Then we move on to Rapanos, and even there we find that the 
regulation of wetlands with a continuous surface connection to 
a tributary to a navigable water body. We still can't get away 
from it.
    Now I am not a purist when it comes to legislative 
construction. The goal here is to provide enhanced regulatory 
authority for the Clean Water Act over all land, all waters 
anywhere. It is my reading of it that if we were to have a 
rainstorm this afternoon and a few inches of water would 
accumulate on top of that very expensive visitors center, that 
that would classify it, at least for the purposes of this 
activity, as a wetland subject to jurisdiction claim.
    Do you see in the history that I have recited to you an 
inconsistency in the defense of navigable waters as a basic 
building block through which the Court, District and Supreme, 
have always looked at the critical right for extension of the 
provision of CWA authority?
    Mr. Percival. I think you have done a very good job, but I 
don't think you have given the complete picture. You have done 
an excellent job of pointing out why navigability has caused so 
much confusion over time.
    Mr. Baker. I wish you would stop there. That would be 
better, but go ahead.
    Mr. Percival. It is important. It is important to bear in 
mind, though, that what Congress did do in 1972 is it defined 
navigable waters to mean waters of the United States, a term of 
art whose meaning was to reflect the desire of Congress to have 
it as comprehensive as possible.
    Mr. Baker. But that is all they said.
    Mr. Percival. Right.
    Mr. Baker. They said navigable waters, and that is it.
    Mr. Percival. That is all they said in the text of the Act.
    Now I think the Supreme Court got it exactly right in 
Riverside Bayview when it looked carefully at the legislative 
history, carefully at the debates that you looked at and noted 
that the purpose of Congress was to do more than just protect 
navigability. It was also to protect water quality and that 
required deference to the Corps' judgment that you also needed 
to include wetlands that had hydrologic impacts on the quality 
of traditionally navigable waters.
    Mr. Baker. That was a provision in the holding which said 
you could literally walk from waste-deep wetlands directly to 
the navigable waterway, but the holding was because of its 
association with a navigable waterway, not that it was 
principally a wetlands. It was wetlands with a navigable 
waterway that led them to their conclusion. Is that wrong?
    Mr. Percival. Well, the Court also, Justice White in his 
opinion said that Federal jurisdiction over adjacent wetlands 
was not dependent on the flow of water between wetlands and 
traditionally navigable waters but rather the fact that in the 
judgment of the Corps, they had an impact on those other 
waters.
    Mr. Baker. They shared certain hydrologic conditions.
    Mr. Percival. Here is his quote: ``The wetlands adjacent to 
lakes, rivers, streams and other bodies of water may function 
as integral parts of the aquatic environment even when the 
moisture created in the wetlands does not find its source in 
the adjacent bodies of water.''
    Now, just one final point and that would be the visitors 
center. It is not a wetland. It doesn't meet the Corps 
definition of wetlands. There is no conceivable way, no matter 
how hard it rains here, that Federal jurisdiction would be 
extended to the visitors center.
    Mr. Baker. But that definition is not statutory and it is 
really unclear if we were to go to the record and look at what 
the Corps has declared as a navigable waterway.
    Mr. Chairman, I am going to enter this one into the record. 
I will get the source for it. I just happen to have it in my 
file.
    Mr. Oberstar. Entered into the record without objection.
    Mr. Baker. I thank you, Mr. Chairman.
    The title says Regulated Navigable Waters in Elk Grove, 
California, and it is just this little trench created by the 
farmer which is fenced on either end. So it would be a very 
short haul for a commerce operation. I can't remember off the 
top, but I know it is less than five inches a year annual 
rainfall. That is already a wetlands.
    That is the operational concern that I have, sir, is not 
that we shouldn't protect aggressively all environmental 
resources, but the unintended consequence of a bureaucracy let 
loose with the authority of law to back them will take private 
property rights without compensation almost at will. I know 
that is a reach for some who are strongly advocates of this 
position, but I think it is one equally strongly held by those 
who have been the recipient of these judgmental determinations.
    I thank you for your courtesy. I have gone on too long. 
Thank you.
    Mr. Oberstar. No. The gentleman has time.
    Mr. Baker. I am fine. What I would like to do, Mr. 
Chairman, is I will put that little diatribe into a memo and 
deliver it to the Professor for further analysis.
    Mr. Oberstar. That was a very thoughtful legal analysis 
that falls somewhat short, but I would instruct the Clerk to 
print the gentleman's remarks upside down. It was too good for 
the record.
    [Laughter.]
    Mr. Baker. I thank the Chairman for his kind comments. 
Living in Louisiana means you are upside down. So I take no 
offense.
    Mr. Oberstar. Well, my wife is from Louisiana.
    Mr. Baker. I strike that from the record then.
    [Laughter.]
    Mr. Oberstar. And the Mississippi rises in my district or 
just outside my district and finishes in her town.
    Professor Connolly.
    Ms. Connolly. Just I would commend to you the brief that I 
had the opportunity to co-author that goes into the legislative 
history. In addition to some of the quotes that you have, there 
are some additional quotes that you might want to look at as 
you are considering the legislative history here.
    Mr. Oberstar. It was my intention, without objection, to 
include in the Committee record Anchoring the Clean Water Act 
of the Environmental Law Institute. I think it is a very cogent 
document.
    Mr. Hopper, did you have comments on what Mr. Baker said?
    Mr. Hopper. Yes, I did if I could just make a comment on 
Mr. Baker's comments.
    I agree with Professor Percival that water on the roof is 
not a wetland, but it doesn't need to be a wetland in order to 
be regulated, and that is the key point. We have been engaging 
in a long debate about how clear the language of the statute 
is, and what is clear about the bill is that it applies to all 
intrastate and interstate waters, all waters. It is just as 
clear as the Chairman believes that navigable waters and waters 
of the United States was in 1972.
    I would also remind Professor Percival that it is a matter 
of established judicial canon of statutory interpretation that 
a contemporaneous interpretation is given more weight than a 
subsequent interpretation, and so therefore the 1974 
interpretation of the Clean Water Act by the Corps is not to be 
set aside so easily. It was contemporaneous.
    Mr. Baker. If I may, Mr. Chairman.
    Mr. Oberstar. Certainly.
    Mr. Baker. Just as a quick follow-up, let me see if I 
understand your constrained definition of isolated wetland.
    Were it in fact, for example, where a farm tractor cuts 
across a field, where the field itself prior to the crossing 
was not deemed wetlands by the Corps, you have the residual 
tire marks that subsequently fill with water. There are cases 
where those marks or that area has been defined as wetlands. Do 
you think that jurisdictional reach is appropriate or 
inappropriate?
    Mr. Hopper. Oh, it is inappropriate. I think that you are 
right. We have seen some bizarre interpretations of what 
constitutes of what constitutes a wetland.
    Mr. Baker. Well, but there may be some middle ground here. 
I am not opposed to protection of waters, but what I am 
suggesting is there have been, as you have acknowledged, 
determinations that are not cemented in logic.
    Mr. Hopper. Oh, absolutely.
    Mr. Baker. For example, in construction of the interstate 
between Baton Rouge and Lafayette, there were isolated wetlands 
that were maintained by the contractor during the constructed 
of the elevated interstate, but when he left, those died. They 
were not wetlands of a permanent or natural nature. They were 
creations of the construction effort.
    Those are the kinds of concerns that practical people have 
about the extension of this authority in an unbridled fashion. 
If there are ways you can suggest to better clarify without 
extraordinary overreach.
    I am not suggesting that the Chairman's bill isn't going to 
pass as it is. He can pretty much do what he chooses here, but 
if there is a way to suggest a modest improvement in a 
definitional arena, I certainly would like to explore that with 
you.
    Mr. Hopper. I can think of no modest improvement. I can 
suggest an improvement.
    I think clearly if you are going to, this Clean Water 
Restoration Act, as proposed, simply says we are going to 
regulate all waters until a court says we can't. That is what 
it says, and it will cover all waters. All right, now.
    Mr. Baker. Except on the visitors center.
    Mr. Hopper. No. It will cover that. It will cover that on 
the visitors center, but it won't be called a wetland.
    Mr. Baker. Okay.
    Mr. Ehlers. Will the gentleman yield?
    Mr. Baker. I would be happy to yield, yes.
    Mr. Ehlers. I would have to agree with the professor from 
the State of Maryland. This area over here would not. The 
visitors centers is not going to meet the test of hydrology, of 
soil type or vegetation. So the visitors centers is not now or 
ever will be considered a wetland or a non-tidal wetland.
    Mr. Hopper. But if I could finish with my recommendation.
    Mr. Baker. I reclaim my time.
    Mr. Hopper. I think that this bill, as proposed, simply 
puts us in another round of intense litigation. I am 
volunteering. I do not think that this would pass 
constitutional muster.
    Now I think that if we want to adopt a standard that is 
respectful of States' rights and avoids a lot of the problems 
with intruding on the takings clause and property rights and 
still is protective of waters, I think that I would recommend 
adoption statutorily of the standard put forward by the Scalia 
plurality.
    Then I think what we need to do is continue our efforts 
with the States. The way I read the Clean Water Act of 1972, 
Congress intended to rely on the States to regulate at the 
source upstream whereas the Federal Government regulates 
downstream in the navigable waters. That is an entirely 
rational approach to address a nationwide issue. I think that 
we need to rely on greater States' rights.
    In addition to trying to protect the environment for future 
generations, we also want to protect the constitutional 
structure for future generations. The rule of law is an 
important thing as well.
    Mr. Baker. Thank you.
    Mr. Oberstar. Before I go to Mr. Carney, we have heard a 
lot of discussion about Congressional intent, and I would just 
like to enter into the record at this point the Committee 
report from this Committee when we reported the bill from 
Committee to the House Floor and before going to conference.
    ``One term the Committee was reluctant to define was the 
term, navigable waters. The reluctance, however, was based on 
the fear that any interpretation would be read narrowly. This 
is not the Committee's intent. The Committee fully intends that 
the term, navigable waters, be given the broadest possible 
constitutional interpretation unencumbered by agency 
determinations which have been made or may be made for 
administrative purposes.''
    That is Congressional intent. That is what the Supreme 
Court ignored.
    Mr. Carney.
    Mr. Carney. Thank you, Mr. Chairman.
    Mr. Hopper, I guess I need you to help me follow a couple 
things here.
    In the very first sentence of your testimony, you assert 
that, and please let me quote you: ``In over 30 years of 
enforcement of the Clean Water Act, agency officials were never 
able to provide a predictable consistent standard for Federal 
jurisdiction.''
    Mr. Hopper. That is correct.
    Mr. Carney. You then go on to support this sentence with 
reference to the 2004 GAO report. Now, while you imply that the 
report supports this 30 year record, you do not make any 
references whatsoever to the time period actually covered in 
the GAO analysis, interviews that took place over a 10 month 
period regarding the less than 3 years following the SWANCC 
decision.
    Could you please explain how the time period assessed in 
the GAO report, 2001-2004, accounts for that 30 year period?
    Are there non-anecdotal references to the Committee that 
supports the 27 and some years you refer to in the first 
sentence?
    Mr. Hopper. I don't think I can cite to you any non-
anecdotal references. I am not sure what you are asking with 
respect to this three year time frame.
    All I am suggesting is that, in both the SWANCC and in the 
Rapanos decision, the pluralities and the majority castigated 
the Corps for its ever changing regulatory framework. The 
migratory bird rule was adopted subsequent to the regulations 
that now exist. It was an underground regulation. It was never 
formally adopted, but it was followed and used.
    The Corps has specifically disclaimed in formal regulations 
that it does not have authority to regulate certain discharges 
and certain types of ditches, drainage ditches and the like. 
But, subsequently, it asserted authority over that.
    Let me just point out that with respect to SWANCC even 
though it was quite clear.
    Mr. Carney. It has done this over 30 years in other words.
    Mr. Hopper. Well, if it were consistent over 30 years, it 
wouldn't have been inconsistent in the past 3 years or 5 years 
or 10 years.
    Mr. Carney. Basically, you are saying over 30 years using a 
3 year period to mark 30 years of inconsistency, is that right?
    Mr. Hopper. I am just saying that in the 30 years 
experience that the Corps has had to enforce, it has not come 
up with a consistent jurisdictional standard.
    Mr. Carney. I see, okay.
    Professor Percival, do you care to weigh in on that.
    Mr. Percival. Yes. I have read the GAO report, and the 
whole motivation behind having the GAO do the report was to 
find out how the Corps was responding to SWANCC. So, if 
anything, it actually supports the notion that SWANCC is the 
source of any inconsistencies that are referenced in that 
report, that the Corps didn't understand what its limits were 
for the scope of Federal jurisdiction, and that is why the 
report documents cases where they are applying different 
interpretations.
    If anything, that reinforces the case for going back to a 
pre-SWANCC interpretation as the Chairman's bill would do.
    Mr. Carney. Thank you.
    Professor Connolly?
    Ms. Connolly. Yes. I think that I have to pleasure every 
summer of working with Corps employees, teaching them an 
environmental laws and regulations course. So I actually get to 
meet with people who are in the field, trying to work with 
these regulations on a regular basis, and I have the utmost of 
respect for the employees who are trying to do this.
    As the Chairman pointed out, waters are different in 
different places, and there does need to be some different 
interpretations.
    The other interesting thing when you are looking at the 
data, I think that SWANCC put things into a very different 
perspective and that there was a lot of confusion.
    I think the GAO report. I was privileged to help prepare 
the folks who were doing the GAO report, and I know exactly 
what they were focusing on. They were trying to figure out what 
was happening in the field then.
    There has been an additional data call, and there are 
additional data that the Corps has gathered. It shows that, 
yes, there is confusion, and that is precisely why this 
legislation is needed to help the folks who are in the field, 
to help the folks who are in the permitted community, to help 
the folks who are all stakeholders figure out where go to from 
here.
    Litigation about this will continue absent some sort of 
directive, and it will continue to be a mess. There needs to be 
a directive from Congress to help us get past where we have 
gotten in light of these two Supreme Court decisions.
    Mr. Carney. Mr. Hopper, would legislative clarity clear up 
this cloudiness, do you think or, no, it will create more? What 
is your impression?
    Mr. Hopper. Well, if the legislation were clear, then it 
would help, I suppose. I don't see it. I don't see that with 
this proposal. I mean it is clear that if it were adopted, it 
says we will regulate all waters. I mean that is clear.
    However, again, I think that that will only last until the 
Court has addressed it. It invites. Because the legislation 
says we are going to regulate to the fullest extent of the law, 
it invites the Court to determine what that full extent is. I 
suggest that is an abdication of the Congressional role. 
Congress has its own responsibility to determine the reasonable 
limits of its constitutional powers.
    I think that it is clear that the Supreme Court under the 
commerce clause will require some limits to the commerce 
clause. This proposal offers or recognizes no limits to Federal 
control over State waters.
    Mr. Carney. Okay. I guess I am trying to work through is 
your concern with the scope or the definition?
    Mr. Hopper. Well, I don't think you can separate them. I 
think it is too broad from a scope standpoint. The definition, 
I could talk to you for hours about the ambiguities in the 
current definition.
    Mr. Carney. I really wish you wouldn't.
    [Laughter.]
    Mr. Hopper. For example, it does not define tributaries, so 
that is still an open question. Again, as the Court has 
recognized in Rapanos, and we argued in that case, it is a 
moving target. There has never been a regulatory definition of 
tributaries. We don't have a statutory definition of 
tributaries. It is going to continue to be a bone of contention 
and subject to litigation.
    Mr. Carney. Professor Percival?
    Mr. Percival. I just would like to state that the 
consequences of adopting Justice Scalia's definition as Mr. 
Hopper has been advocating is that there would be a tremendous 
restriction of the Federal Government's ability to regulate 
under the Clean Water Act, not just to protect wetlands but 
also to stop point source dischargers and also to prevent oil 
pollution.
    In fact, it would have it exactly backwards because the 
area where you wouldn't have Federal jurisdiction would be in 
those upstream areas of the watershed where the States 
themselves would have little incentive to adopt protections 
because it would primarily benefit States downstream.
    I think that is precisely the reason that the overwhelming 
majority of States supported the Federal Government's position 
in both SWANCC and Rapanos and resisted efforts to try to 
narrow the regulatory jurisdiction of the Corps. This bill in 
no way would be an unprecedented intrusion on States' rights. 
In fact, it would restore the ability of the Federal Government 
to protect States that otherwise are relative helpless about 
the pollution that flows into their State from other States.
    Mr. Carney. Thank you.
    Ms. Connolly.
    Ms. Connolly. SWANCC actually specifically called on the 
States to respond, and I find it interesting that most did not 
respond. I think in part and as somebody who is active in the 
debates in South Carolina, the States honestly feel that the 
Federal Government has an important role here.
    In fact, there were the vast majority, 33 States, signed 
onto a bill supporting the Government's interpretation in the 
Rapanos and Carabell decisions. I think that they recognize 
that having Congress set forth workable language that will 
achieve the Congressional purpose, as the Chairman pointed out 
so well, the chemical, physical and biological integrity of the 
Nation's waters is necessary and not the responsibility of the 
States.
    Mr. Carney. All right, thank you.
    Mr. Chairman, I thank you for the indulgence of your time.
    Mr. Oberstar. I appreciate the gentleman's questions.
    Professor Gilchrest.
    Mr. Gilchrest. That is my brother, Mr. Chairman.
    I would like just a statement first to clarify the intent 
of this Congressman, make that very clear. Rivers and Harbors 
Act, Clean Water Act, legislative history going back 100 years, 
30 years, 3 years, what my intention is along with a number of 
my colleagues is to get a grasp or an understanding of the 
change in the hydrologic cycle of water in the United States 
over the last 500 years. What was the hydrologic cycle 500 
years ago, 400 years ago, 300 years ago, all the way up the 
present day? It has drastically been changed and, to a large 
extent, been degraded.
    I would also say, and I don't say this in a flippant 
manner, but I remember the definition of tributary in my 
seventh grade geography class. We could probably take Mr. 
Bussey's definition from my seventh grade and apply that 
somewhere for the tributary.
    What do we do now with our intent as Members of Congress? 
Do we apply navigable waters just to the Federal Government 
just for downstream purposes and allow the States to deal with 
upstream regulations or do we have a better sense?
    We do have to deal with the legality of this. We have to 
deal with statutes. We have to deal with regulations. We have 
to deal with judicial interpretations of those things. But 
underneath all of this is an ephemeral stream that provides a 
magnificent ecological niche in vast areas of this Country or 
there are tributaries or there are intermittent streams or 
there are non-tidal wetlands or there are coastal areas that 
depend on streams and tributaries and rivers coming from the 
interior of the U.S. which provide coastal area habitat for 
spawning fish of which 75 percent we use on our dinner plates.
    The understanding that there is nature's design, especially 
nature's design that is dependent upon the hydrologic cycle, 
upon which we are dependent. So the intent of Congress is to 
understand how human activity can and must now with a bulging 
population be compatible with nature's design.
    For all those legal wrangling, the intent of this Committee 
to have some understanding about when you drive a tractor 
across a field too many times, you are going to leave a rut, 
but that is already taken care of because normal farming 
practices are exempt from these regulations.
    I guess my question is if we take out in the present 
legislation the term, navigable waters, and we use the language 
of this legislation, what else needs, in your judgment, to be 
done with the language of the legislation to clarify the intent 
of Congress? Not to become over-bureaucratic to a mining 
operation where they leave a couple of ditches and they fill up 
with water and they are waters of the United States, so you 
can't do anything else with them, or a farmer that might want 
to change from corn to a nursery operation to growing lodgepole 
pines or something like that.
    What else do you think in the present legislation needs to 
be changed, if any, to clarify the intent of Congress to 
restore the chemical, physical and biological integrity of the 
Nation's waters and what do you think might need to be changed 
in the regulatory structure that should be made into statute?
    Mr. Percival. A couple of things that come to mind: First, 
I think the most important thing you can do is make it clear as 
this hearing is doing by contributing to the legislative 
history that your intent is not to expand in any way Federal 
authority but simply to restore it to the state it was in prior 
to the SWANCC and Rapanos decisions.
    The fact that Chairman Oberstar's bill has a savings clause 
that specifically references the existing exemptions in the Act 
certainly will make it clear that normal farming activities are 
not subject to the Section 404 program even though we keep 
hearing about these anecdotes that supposedly this would cause 
some problem there.
    I think Justice Breyer said it right in his dissent, his 
separate dissent in the Rapanos case where he said that the 
waters of the U.S. are so various and so intricately 
interconnected that the only way to achieve the Congressional 
goal of restoring their chemical, physical and biological 
integrity is to do what essentially Chairman Oberstar's bill 
would do, to extend Federal authority to the limits of 
Congress' constitutional power while entrusting to the Corps 
and EPA the responsibility of exercising that power 
intelligently, subject to Congressional oversight.
    Mr. Hopper. I don't think that protecting the Nation's 
waters requires federalizing the Nation's waters.
    Mr. Gilchrest. Can I just interrupt the gentleman just for 
one second?
    I live in the Chesapeake Bay Region of Maryland, and the 
biggest contributor of freshwater and also the biggest 
contributor of nitrogen to the Chesapeake Bay comes from the 
Susquehanna River which is Pennsylvania. Of course, that is a 
navigable water but what goes into the Susquehanna River from 
as far away as Cooperstown, New York and Harrisburg, 
Pennsylvania. There are numerous ephemeral and small 
tributaries.
    Mr. Hopper. I think that the Federal structure requires 
that any legislation accommodate States' rights and individual 
rights. The Supreme Court said, I think, best when they said 
that notwithstanding our desire to improve the human condition, 
we cannot do so by means shorter than the constitutional way.
    One of the virtues of the plurality approach in the 
Rapanos, even though I can see as Professor Percival rightly 
pointed out that it would greatly reduce the reach of Federal 
control, is that that approach at least has the virtue of being 
clearly demarking, fairly clearly demarking where Federal 
control ends and State control begins.
    One of the reasons why a lot of the States have not been 
able to step up subsequent to SWANCC was because it was not 
clear where the Federal Government was going to draw the line 
after SWANCC. After SWANCC, it should have been clear that the 
Corps had no authority to regulate isolated water bodies, but 
it is still doing so and has narrowly interpreted SWANCC.
    So, in response to your question, I think what is needed is 
a clear demarcation of Federal authority versus State 
authority. I don't think the answer is to cut the States out of 
it in the sense of federalizing it as this proposal seems to 
do, and I do think that the Supreme Court has at least 
indicated that Federal control could go as far as the plurality 
has said.
    Mr. Gilchrest. Thank you very much.
    Ms. Connolly. In answer to your question, I would change 
nothing. I think that the definition and the bill are 
sufficient, and I think that what we need to bear in mind is 
that our constitution and our Nation have designed the system 
that the Executive Branch are the experts.
    I am not a scientist, but the science shows--and I have got 
this in my submitted text--that broader regulation is 
essential. And so, I think that this is an example, that the 
language before this Committee will satisfy those requirements.
    Mr. Gilchrest. Thank you very much.
    My closing comment, Mr. Chairman, is Oliver Wendell Holmes 
said the Constitution was made for people with fundamentally 
differing views, so we are seeing that play out here. Thank 
you.
    Mr. Oberstar. Thank you very much, Mr. Gilchrest.
    Mr. Arcuri.
    Mr. Arcuri. Thank you, Mr. Chairman.
    I would just like to thank the panel. I learned a great 
deal, listening to the three of you. Thank you very much for 
sharing your thoughts.
    I just would like to point out that I certainly share the 
Ranking Member's concerns with respect to creating a bill that 
would in places like in my district where we have extensive 
farmland, where if it rains very hard you are going to get 
temporary wet spots, certainly creating a situation where then 
there can be regulation or that the farmer would have to submit 
a permit before using fertilizer or farming his land is a 
concern.
    However, to the point that Mr. Gilchrest made in 
referencing Cooperstown which is in my district. I happen just 
last week to have been by the very small stream that actually 
is the beginning of the Susquehanna Basin in Cooperstown, and 
it clearly is not a navigable stream.
    My concern is this: If we narrow the definition to the 
point where we are only applying to navigable streams, clearly 
we are missing the boat because again the Susquehanna Basin 
starts in a small little stream in Cooperstown. If that is 
being polluted somewhere along the way in many, many very small 
former mill towns, we are not going to be able to regulate it 
if the State of New York chooses not to regulate it.
    So my concern is how do we do that federally? How do we 
deal with it if a State chooses not to regulate it in its own 
State?
    Mr. Hopper. Well, I don't see the State not regulating any 
water body. I think I can say with confidence that it is 
illegal in every State to discharge pollutants to water bodies. 
Nobody on the Supreme Court, absolutely nobody on the Supreme 
Court has suggested that Federal regulation is limited to 
actual navigable waters. It is beyond that.
    So your concern, I think, is something you can put behind 
you. There is no precedent now for limiting Federal 
jurisdiction to actual navigable waters. We are beyond that.
    I think that there has been an awakening, environmental 
awakening among the people and among State legislators. I just 
think that in keeping with the constitutional structure and 
what Congress expressed as a policy to defer to the State's 
primary responsibility to protect against pollution, then I 
think States will step up and assume that proper role once it 
is clear where Federal jurisdiction ends.
    Ms. Connolly. With respect to your question, Congressman, 
about the exemptions, one thing that is very clear, the savings 
clause makes sure to clarify something in a way that I actually 
don't think is necessary. I think it is extra. I think that the 
exemptions that are currently in place 404(f) would remain in 
place and that farmers putting down fertilizers are exempt from 
404 regulation and would remain exempt from 404 regulation.
    Mr. Arcuri. That is the fear that we get. That is the 
number one question that we get from people with respect to 
this, to the change.
    Ms. Connolly. I understand that is why the savings clause 
was included even though it, under most analyses, would not be 
necessary.
    Mr. Percival. I concur with Professor Connolly's remarks.
    Mr. Arcuri. Thank you very much.
    Mr. Oberstar. I think this panel's testimony may be the 
most important of our inquiry while not denigrating any other 
testimony. The issue of constitutionality, the issue of intent 
of Congress is critical to moving forward with the pending 
bill. I think these very thoughtful, scholarly presentations 
from one end of the spectrum to another are extremely 
important.
    I would like to ask Professor Percival. How can the same 
justice be on two sides of the issue?
    Your research on Justice Rehnquist's opinion in 1979: 
``Reference to the navigability of a waterway adds little, if 
anything, to the breadth of Congress' regulatory power over 
interstate commerce. It has long been settled that Congress has 
extensive authority over this Nation's waters under the 
commerce clause. It cannot properly be said that the 
constitutional power of the United States over its waters is 
limited to control for navigation.''
    Then he goes further to hold that the regulatory program 
established by the Clean Water Act was so comprehensive it 
preempted the federal common law of interstate nuisance.
    Then how could he side with Justice Scalia? What 
intellectual leap of faith did he make?
    Mr. Percival. Well, I actually think that that is not 
really an inconsistency.
    Justice Rehnquist had his own particular vision of 
federalism which he adhered to consistently regardless of 
whether it supported a conservative or liberal cause. He had 
already, at the time he made those statements about Congress 
having such broad constitutional power to protect the waters of 
the United States, said in his dissent in Fry v. United States 
that there can be no more important issue before the Court than 
how to resuscitate States' rights.
    In 1981, what he was doing when he said the federal common 
law of nuisance that the Supreme Court had used throughout the 
early 20th Century to try to resolve interstate pollution 
disputes between States, when he said that was preempted, he 
was doing so for two reasons: first, because he did indeed 
believe that the Clean Water Act was so comprehensive because 
it required a permit for any discharge to the waters of the 
United States, that that would take care of the problem and, 
secondly, he thought that the judiciary was uniquely ill suited 
to serve as a kind of national EPA umpiring these disputes. It 
is best left to the administrative agencies.
    I think that explains why in 1985 he joined the unanimous 
decision by Justice White in the Riverside Bayview case, that 
that was the proper view of the law.
    Now it is true that in the SWANCC decision, he was in the 
majority in that case, but I suspect that was because he viewed 
the facts of that case very differently. I don't know how he 
would have come out in Rapanos.
    But, again, you have to bear in mind that both SWANCC and 
Rapanos are not constitutional decisions. The Court didn't 
question the constitutional authority of Congress under the 
Clean Water Act. Instead, what they said is even though this 
might have bad consequences for the environment, it is not our 
fault. We think Congress adopted a narrower interpretation, and 
it is up to Congress to tell them they are wrong if that is the 
case.
    Mr. Oberstar. Thank you.
    Mr. Hall has arrived, and we are glad to welcome him back 
to the Committee. The gentleman is recognized.
    Mr. Hall. Thank you, Mr. Chairman. I appreciate your 
tolerance with my scheduling and thank you, panel, who I am 
sure I will read up on all of your testimony that preceded my 
arrival.
    There are two questions I have. One is under the current 
guidance which proposes to use both the Scalia test and then 
failing that the Kennedy significant nexus test, evaluations of 
waters could add significant time, maybe two to three months, 
to water protection projects. Assuming that type of burden, 
doesn't the regulatory confusion created by the Supreme Court 
threaten to short-circuit the already overwhelmed system?
    Nodding is noted.
    Ms. Connolly. I agree completely, and that is something 
that I have got in my written testimony and I mentioned briefly 
as well.
    I think that the Corps of Engineers, and I work with Corps 
people on a regular basis, do their best to keep up with 
things, but there is a huge workload. They process 90,000 
permit applications and over 100,000 jurisdictional 
determinations every year.
    The so-called guidance that leaves a lot of unanswered 
questions is going to add a huge burden to them or, in the 
alternative, it is going to cause a decision just not to 
regulate things that should be regulated because it is too 
difficult or there is too much pushback. That is my real 
concern is that there may be a great falloff in regulation as a 
result of this guidance.
    Mr. Hopper. I think it will result in just the opposite.
    Mr. Hall. Okay.
    Professor, do you want to weigh in?
    Mr. Percival. I would tend to agree with Professor 
Connolly.
    I would also emphasize that if you look at the history of 
the 1972 legislation, one of the things Congress was doing was 
rejecting the notion of relying primarily on site-specific 
assessments of environmental impact on ambient water quality. 
That is why we went to this comprehensive system of national 
technology-based effluent standards because we realized that we 
just couldn't accomplish it if you had to, for every 
discharger, make such an assessment. Here, it is for 
jurisdictional purposes as well.
    Mr. Hall. The second question is because I have a strong 
farming presence in my community and concerns have been 
expressed about reaction to the Supreme Court ruling on the 
future of clean water regulation, I would appreciate any 
comments on the way the impacts of the current regulatory 
situation would affect farming practices.
    Also, to what extent, if any, would removal of the word, 
navigable, from the underlying statute have on fields with 
grass waterways for temporary wet spots?
    Mr. Percival. I would again reiterate that the legislation 
expressly in its savings clause reiterates the existing 
exemption for normal farming activities from the Section 404 
program.
    I think the one thing the legislation might do that would 
affect farmers is that by ensuring that the confusion created 
by the Supreme Court decisions will not lead to a great cutback 
in the scope of Federal jurisdiction, it will do a better job 
of protecting watersheds and thus improve the quality of waters 
that many of those farmers may use for irrigation.
    Mr. Hopper. One of the problems with the farm exemptions is 
that even though the language is broad the interpretation is 
quite narrow. For example, what is exempt is ordinary farming 
practices, but the way the Corps applies that, that doesn't 
mean ordinary farming practices throughout the Country or even 
throughout a region but on this particular farm. So if you are 
switching from row crops to vineyards, as was the case in the 
Borden Ranch case, you will run afoul of Federal regulation 
because this narrow interpretation would not apply the farm 
exemption to that type of activity.
    Deep plowing was at issue there where a shank is brought 
into the ground to tear it up so you get better drainage for 
the vineyard as opposed to the row crops, and the Corps of 
Engineers determined that that was an ordinary practice on this 
particular ranch. It couldn't be used and was subject to 
Federal control.
    As to whether the proposed bill would regulate you said 
small areas that become wet, if they fall outside of the farm 
exemption, they would be regulated. Small ponds or swales, 
those types of areas may well be regulated. I think that what 
is clear here is that all waters are going to be regulated 
unless they fall within this narrow interpretation of the farm 
exemption.
    Mr. Hall. Thank you.
    I have one last question for both Professor Connolly and 
for you, Mr. Hopper, and that is some States including New York 
have an ongoing discussion about the ramifications of the 
waterway being navigable in terms of public access on private 
land. In other words, if one can canoe in or kayak in on a two 
inch deep stream or so on, that then could be construed as 
allowing public access.
    Is there a crossover between what under these rulings are 
for the purpose of water quality protection what is determined 
navigable and what is determined navigable in terms of access?
    Ms. Connolly. What you are referring to, I believe, are the 
issues related to public trust and when you get into the 
concepts of navigability and protection of access to water. 
Historically, that is coming from ancient Roman times, and that 
is a separate question. The definitions that would be put in 
place by this proposed legislation, I do not think, would come 
into play there.
    I also would like to go back just briefly to your previous 
question about the farming exemptions and just wanted to add 
one little thought which is even in the event that certain 
activities such as changing from one type of farming operation 
to an entirely different type of farming operation that would 
involve great disturbance, many, many of those activities would 
fall under a streamlined permitting process.
    Even though the Corps does undertake 90,000 permit 
applications, 90,000 permit actions a year, only about 5,000 of 
those are the full individual permitting process where there is 
a public interest review and public notice and comment. For the 
most part, most of those activities proceed through a 
streamlined process, and most farming activities, even if they 
were captured, would likely proceed through a streamlined 
permitting process.
    Mr. Hopper. Streamlined permitting is a misnomer. The cost 
is very high even for a nationwide permit, and the length of 
time to get a nationwide permit is very long.
    Beyond that, what the statistics about permit grants don't 
tell you is the impact on the permittee. I just got a call 
yesterday from a fellow in Florida who wants to fill 11 acres 
on his property. He can get a permit if he provides 273 acres 
in mitigation. That is what the statistics don't tell you.
    Now with respect to this access, I agree with the 
professor. I am not so sure. I don't see an immediate impact on 
crossover. I don't see this as really affecting the access 
question immediately. I would just say, however, that there is 
an issue of incrementalism that goes on where we see the silent 
encroachment of Federal power in one area does bleed over into 
other areas.
    Mr. Hall. The finishing creeps.
    Mr. Hopper. So I would not say as a matter of law that this 
would have no impact on access rights.
    Mr. Hall. Professor Percival?
    Mr. Percival. I would just say I don't see any conceivable 
way in which this bill could change rights of access.
    The second point I would make is that there was one case 
before the Supreme Court where a private landowner actually dug 
a channel to his lake in order to connect it to the ocean. That 
is the Kaiser Aetna case. What the Supreme Court ruled in that 
case is even though the landowner had made it navigable, the 
navigation servitude did not mean that that became anything 
that the public had a right of access to unless the Government 
actually took the property and paid compensation to the 
landowner. So I don't see any conceivable way that could be a 
problem.
    Mr. Hall. Thank you.
    Thank you, Mr. Chairman.
    Mr. Oberstar. Well, I thank you very much for your 
contribution, Mr. Hall, and for the questions and for the 
responses.
    Coming back to my reading earlier into the record the 
Committee report language which clearly expresses the intent of 
Congress in addition to and supplementing the actual words, 
that the Committee was reluctant to define.
    ``One term that the Committee was reluctant to define was 
the term, navigable waters. The reluctance was based on the 
fear that any interpretation would be read narrowly. However, 
this is not the Committee's intent. The Committee fully intends 
that the term, navigable waters, be given the broadest possible 
constitutional interpretation, unencumbered by agency 
determinations which have been made or may be made for 
administrative purposes.''
    Is there any way, Mr. Hopper, that we could refine the 
language in the bill I have introduced, pending before the 
Committee, that would resolve fears that Congress is 
overreaching in light of the legislative history and intent of 
Congress?
    Mr. Hopper. Yes, well, you could shelve it. I think that is 
the only way it would resolve my concerns about overreaching.
    Mr. Oberstar. But that would then close off opportunities 
for attorneys like you to litigate?
    Mr. Hopper. We have got plenty of work to do.
    I think that what you just read was also cited by Mr. 
Baker, and he went on further in that citation to indicate.
    Mr. Oberstar. No. He was referring to the law. I am 
referring to the Committee report.
    Mr. Hopper. It sounded like the same language to me. In any 
event, it was similar language that was cited by the Corps of 
Engineers in the SWANCC case, and the Court looked at that and 
said, we still don't feel that that was an adequate expression 
of Congressional intent to go beyond traditional powers over 
navigation.
    But as I said at the beginning, Mr. Chairman, I think what 
is important here, at least one thing that your bill does is 
that it clearly states that in the bill that Congress intends 
to exercise its full extent of its authority.
    We, as a regulated public, public officials don't have 
access to these Committee reports, and we have to live with the 
law as it is written. And so, it is the language in the Act 
that is important. It is not some subjective interpretation of 
any one of us or even any eloquent statement of purpose in 
these reports. They really don't count. The courts don't even 
get to them unless there is some ambiguity in the language of 
the Act itself.
    Mr. Oberstar. Well, that is true, that the courts have 
traditionally not reviewed, except where there is great 
uncertainty, the Committee reports. Yet, Committee reports very 
consistently interpret the language in layman's terms rather 
than in legislative terms.
    The courts try to avoid that, but they gratuitously come in 
and say, well, we know what Congress intended. It certainly had 
to mean thus and so.
    We deal with that constantly while we continue to refine 
our legislation.
    I think in the purpose of protecting the Nation's waters, 
we intend to move forward with clarity, and clarity means 
taking the term, navigable, out if that confuses the Court.
    I appreciate the contributions of all three of you in 
helping us in these deliberations.
    Mr. Hopper. Thank you.
    Mr. Oberstar. The Committee is adjourned.
    [Whereupon, at 6:00 p.m., the Committee was adjourned.]
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      STATUS OF THE NATION'S WATERS INCLUDING WETLANDS, UNDER THE 
        JURISDICTION OF THE FEDERAL WATER POLLUTION CONTROL ACT

                              ----------                              


                        Thursday, July 19, 2007

                  House of Representatives,
    Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 2:05 p.m., in Room 
2167, Rayburn House Office Building, Hon. James Oberstar 
[Chairman of the Committee] Presiding.
    Ms. Johnson of Texas. [Presiding.] Good afternoon. I would 
like to welcome today's witnesses to our hearing, and, I am 
certain, the Ranking Member. Today we will hear from former EPA 
Administrator Carol Browner, scientists, and other interested 
stakeholders. In addition to this being an important issue in 
its own right, I am also looking forward to learning more about 
the original purpose and intent of the Federal Water Pollution 
Control Act Amendments of 1972, more commonly known as the 
Clean Water Act. Our witnesses here today will provide 
informative testimony on where the Clean Water Act has worked 
and where it needs to be improved.
    Members of the Committee, while the 1972 Clean Water Act 
Amendments were passed many years ago, and while those laws and 
regulations worked quite well for a long period, times have 
changed. In recent years the Supreme Court has stepped in and 
subverted the purpose and protections of the Clean Water Act. 
Like water under a bridge, congressional intent was simply 
washed away. When the Court makes decisions that are driven by 
ideology, driven by politics, it makes a mistake.
    Sadly, though, we know all too well the ramifications of 
the Bush v. Gore decision. We will soon see the mess that is a 
result of the Rapanos and Carabell decisions.
    The Rapanos decision and the muddy guidance that has 
followed will only result in continued confusion and added 
expense for the regulated community. This, Members of the 
Committee, is confusion that simply did not exist prior to 
2001, the SWANCC decision. And it is not just regulatory 
confusion that has resulted from these decisions.
    Grave environmental harm, damage to our streams and 
wetlands have come about from the unwarranted actions taken by 
the Court. The issue is a matter of clean drinking water for 
all of this country's citizens, and it is a matter of 
protecting our so very valuable water resources. I look forward 
to today's hearing to learn more about the implications of 
these Court decisions on the important issue of wetlands and 
water quality protection. Thank you.
    The Chair now recognizes Mr. Baker.
    Mr. Baker. I thank the gentlelady for recognition, and 
appreciate the willingness of the Chair to again convene a 
hearing on this important matter. This is the second in a 
series, and I think will help the Committee to better 
understand the important issues before us.
    I would like to perhaps review the history of the matter 
from a slightly different perspective. From the 1899 Harbors 
and Rivers Act to the 1972 Clean Water Amendments, the history 
was fairly clear and certain. As a result of the 1972 
amendments and the congressional debate that ensued with the 
adoption of that act, the Corps took one direction with regard 
to rules promulgation, while the EPA was in a slightly 
different perspective. The resulting conflict between the two 
agency interpretations was litigation in the District Court of 
D.C., which consequently ordered the Corps to take on a more 
aggressive regulatory posture.
    From that point forward, there was much uncertainty as to 
what constitutes a navigable water of the United States subject 
to the authority of the Clean Water Act. And from my reading of 
the Supreme Court cases over time, it becomes clear that 
navigable waters does in fact mean navigable as to use, or may 
become navigable with minor modifications to the water system. 
That was again extended to tributaries of the navigable 
waterway, to wetlands that abut a navigable waterway.
    But throughout all court findings, the term "navigable 
waterway" is the building block upon which jurisdiction of the 
Clean Water Act flowed. The SWANCC and Rapanos cases did in 
fact reach an appropriate balance, in my view, in restoration 
of the responsibilities of the States to act in preserving 
environmental quality as well as better defining the role of 
the Federal Government by not extending coverage to isolated 
waters or wetlands.
    Although there appears to be some confusion as to the 
current meaning of the Court's findings, it is clear to me that 
there is a perhaps more appropriate balance between State and 
Federal role and between private property ownership and public 
interest.
    We should tread carefully as we move forward. As I am from 
a State which relies to great extent on water quality, 
fisheries and our navigability of our most important asset, the 
Mississippi River, we do have great interest in preserving 
water quality within reasonable bounds. However, the 
bureaucratic decisions in many cases, identifying tractor tire 
ruts across a wet field, which subsequently fill with water as 
a wetlands subject to the Clean Water Act jurisdiction, do not 
lead one to conclude that logic is always applied in these 
matters.
    And so I am anxious to work with the Chair to find a 
reasonable balance in moving forward to ensure that private 
property rights are regarded, that the States are given full 
responsibility for supervision of their own environmental 
habitat, and that the Federal role is relegated behind those 
two in order to preserve environmental balance.
    I appreciate the opportunity to participate, Madam Chair, 
and yield back my time.
    Ms. Johnson of Texas. Thank you very much.
    Mr. Bishop?
    Mr. Bishop. I will submit a statement for the record, Madam 
Chair, thank you very much.
    Ms. Johnson of Texas. Thank you very much.
    Mr. Higgins, would you have an opening statement?
    Mr. Higgins. I will just submit a statement for the record 
as well, Madam Chair. Thank you.
    Ms. Johnson of Texas. Okay.
    Anyone else? Yes, Mr. Westmoreland.
    Mr. Westmoreland. Thank you, Madam Chair. And I would like 
to thank you for holding this series of hearings and the 
proposal to adjust the Clean Water Act. I want to thank Ms. 
Browner for being here also to testify. I am looking forward to 
hearing your testimony.
    However this legislation's objectives are alarming. I have 
several questions and concerns that I want to address. The bill 
overtly intends to expand the Clean Water Act which has 
maintained our Nation's waters for 35 years. If we remove the 
word "navigable," which is used 81 times in the clean water 
legislation--so I don't think it was misunderstood that 
"navigable" was supposed to be in there--it will result in the 
expansion of the Clean Water Act since the 1972 inception.
    If we replace "navigable waters" with "waters of the United 
States," and expand the scope of Federal jurisdiction to its 
maximum limits under the Constitution, the bill would 
effectively negate decades of jurisprudence. This will become 
the courts to decide the constitutional limits of Federal 
jurisdiction under the Clean Water Act, at a great cost to the 
American people. And as the Chairlady spoke today, it would end 
up back in the high Court, and presumably with the same result.
    The Chairman's bill claims to restore the original intent 
of Congress. And I don't know how much more the original intent 
could be than to use a term 81 times. But the reality is that 
the bill is only broadening the jurisdiction of the Clean Water 
Act to cover any and every wet area of the United States, the 
most troubling of all has yet to come. The business and 
activities of farmers, ranchers, road builders, property 
owners, water planners, and so on will be all included under 
this new expansion of government.
    The only way to decide if water is subject to the new terms 
would be through excessive permitting and oversight, and of 
course costly and time-consuming litigation. The Chairlady 
spoke about the court cases. Those court cases were to stop the 
overreach of the EPA, Fish and Wildlife, and the Corps. It was 
trying to show them that there were bounds under the Clean 
Water Act that they had to work within. They weren't destroying 
the Clean Water Act. These agencies were reaching over the 
bounds that the constitutional authority of Congress gave them.
    And, Madam Chairman, what we are talking about with this 
proposal, and I have only been here 3 years, but I think this 
is the most devastating proposal to the people who grow our 
food chain that I have seen. But this will give EPA and the 
Corps of Engineers the authority over every wet piece of 
property in our United States. That is something that I hope we 
can stop, and that we can work together to negotiate a solution 
that we can all live with, work with.
    I think we need to look at the original Clean Water Act, 
clarify some of the stuff in that to make sure that EPA and the 
Corps knows their regulations.
    Now, let me say this. I have projects that I know of that 
people have been working on for 30 years trying to get a 404 
permit. Thirty years. That is too long. And it is a process, 
and it is a bureaucratic process, and it is the expansion of 
government that is causing people to go without drinking water 
today.
    So with that, Madam Chairman, I yield back the balance of 
my time, and I look forward to the testimony.
    Ms. Johnson of Texas. Thank you very much, Mr. 
Westmoreland.
    The Chair now recognizes Ms. Matsui.
    Ms. Matsui. Thank you, Madam Chair. I think this is a very 
important hearing. The Clean Water Act has been the subject of 
quite a bit of legislative speculation quite recently, as well 
as legal interpretation over the years. And one thing I believe 
that hits a lot of us as we deal with our districts and our 
constituents is we can agree that the permitting process is not 
equally administered everywhere, and in some districts it is 
broken and needs to be fixed.
    What those fixes are and how they are made are issues that 
all of us will have to work through. What is clear is that we 
need to start somewhere in addressing the immediate and long-
term water quality issues facing our country and our 
communities.
    My district is Sacramento, California, located at the 
confluence of two rivers, the Sacramento and the American. As 
my colleagues have heard me say before, we are the most at-risk 
river city for catastrophic flooding in the country. The 
Sacramento region and the Sacramento River watershed as a whole 
is undergoing dynamic changes. We are experiencing a huge 
population growth. We expect almost 2 million more people in 
the Sacramento region alone in the next 4 years.
    As we grow, we need to make sure the tools, whether they be 
policy or regulatory, are in place so that communities like 
Sacramento can address this type of growth and ensure that the 
overall health of our watershed and its communities remain 
intact.
    Today's hearing is a good step in sharing perspectives, 
concerns, and experiences in this complex area, and I look 
forward to working with Madam Chairman on these issues as we 
move forward, and I look forward to hearing today's witnesses.
    And I thank you very much, and I yield back.
    Ms. Johnson of Texas. Thank you very much.
    I would like to, at the request of our Chairman----
    Mr. Bishop. Would the Chairman yield for a second? Thank 
you.
    I was very interested and truly troubled to hear Mr. 
Westmoreland's comments about a 30-year delay. And could I ask 
that you submit to the Committee the details of the case or 
cases that have a 30-year delay? I think all of us on the 
Committee would like to see those.
    Mr. Westmoreland. I have those coming.
    Mr. Bishop. Thank you very much. I appreciate that. Thank 
you for yielding.
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    Ms. Johnson of Texas. Thank you. Our Chair is unable to be 
here. Just before I introduce our first witness, I will read 
his statement. Unfortunately, due to a variety of reasons and 
scheduling conflicts, only our esteemed colleague, 
Administrator Browner, was able to join us this afternoon. 
However, I ask unanimous consent that the testimony of former 
Administrators William Ruckelshaus, Russell Train, and William 
Reilly, as well as former Assistant Administrators for EPA's 
Office of Water, Bob Perciasepe and G. Tracy Meehan, be a part 
of the hearing record.
    Any objections? Hearing none, so ordered.
    Combined, the testimony of these four Administrators and 
two Assistant Administrators span the nearly 35 years of 
implementation of the Clean Water Act, and represent both 
Republican and Democratic administrations charged with 
protecting the Nation's waters.
    I would like to read a few excerpts from the testimony for 
my colleagues to consider. First, from William Ruckelshaus, 
former EPA Administrator for both the Nixon and Reagan 
administrations:
    "EPA supported a broad definition of `navigable waters' as 
`waters of the U.S.' Like Congress, we recognized that the 
chemical, physical, and biological integrity of the Nation's 
waters could not be maintained and restored unless pollutants 
could be controlled at the source, before they entered 
traditionally navigable waters. To faithfully interpret the key 
jurisdictional term 'navigable waters' that Congress had just 
broadly redefined as 'waters of the United States,' EPA 
proposed a regulatory definition of the term "waters of the 
United States" that included interstate and intrastate waters. 
Broad Clean Water Act jurisdiction is not only necessary to 
clean up the Nation's waters, it is necessary to ensure that 
the responsibility for maintaining and restoring clean water is 
shared equitably throughout the watershed and from State to 
State.
    ``In passing the Clean Water Act, Congress recognized that 
the State-by-State approach to water pollution control had 
failed, and that it was necessary to maintain a Federal floor 
for water pollution control to ensure that discharges in one 
State do not jeopardize water quality in another.''
    Next, from Russell Train, former Chairman of the Council on 
Environmental Quality, and former EPA Administrator during the 
Ford administration:
    ``A fundamental element of the Clean Water Act is broad 
jurisdiction over water for pollution control purposes. It has 
been well established that water moves in interrelated and 
interdependent hydrologic cycles and it is therefore essential 
that pollutants be controlled at their source to prevent 
contamination of downstream waters. When focusing on 
controlling pollutants, navigable waters, portions of those 
waters, their tributaries, and wetlands all must be included in 
the scope of protected waters. If we did not protect these 
streams, creeks, and wetlands, the course of abating pollution 
in this country would be much more difficult and more expensive 
because of the additional costs of technological fixes that 
would be necessary and in the absence of what nature has 
provided. Simply put, we cannot protect and restore our 
Nation's water resources without providing appropriate 
safeguards for the entire resource.
    ``Comprehensive jurisdiction is necessary to protect the 
natural environment. It is also important to avoid unfair 
competition. Unless Federal jurisdiction is uniformly 
implemented for all waters, discharges located on nonnavigable 
tributaries from larger rivers, lakes, and other water bodies 
would not be required to comply with the same procedural and 
substantive standards imposed upon their downstream 
competitors. Artificially limiting jurisdiction to only certain 
waters will create comprehensive disadvantages for certain 
dischargers.''
    Also, from William Reilly, former EPA Administrator during 
the first Bush administration, and participant in the creation 
of the national goal of ``no less loss of wetlands:''
    ``EPA has worked closely with the States over the last 30 
years to make steady progress in reducing water-borne 
contamination and restoring the commercial, recreational, and 
ecological health of our country's aquatic resources. This 
successful Federal-State partnership and the long-settled 
administrative practices on which it is built should not be 
weakened by an excessively narrow interpretation of the Clean 
Water Act.
    ``Since the Clean Water Act passed, U.S. courts and 
regulatory agencies have consistently complied with Congress' 
intent by interpreting the term 'navigable waters' to cover all 
interconnected waters, including nonnavigable tributaries and 
their adjacent wetlands, as well as other waters with 
ecological, recreational, and commercial values, such as so-
called `isolated' wetlands and closed basin watersheds common 
in the Western United States.
    ``This interpretation of the statute's jurisdiction is to 
ensure a robust State-Federal partnership. The key phrase at 
issue, 'waters of the United States,' applies to all the water 
pollution control programs established in the Clean Water Act, 
not just the wetlands permit program.
    ``Perhaps the most important implication of any change to 
the definition of 'waters of the United States' is found by 
looking at the Act's basic prohibition against discharging 
pollutants into waters without a permit in the National 
Pollution Discharge Elimination System (NPDES) program 
established by section 402 of the Act and the Act's water 
quality requirements.
    ``By using a broad definition of 'waters of the United 
States,' Congress recognized the need to address pollution at 
its source, no matter what size water. In reality, there are 
few isolated waters. Indeed, many are linked in their 
hydrology.
    Congress needs to step up to clarify its intent. It is 
reasonable and sensible to have a broad definition of 'waters 
of the United States' for the purposes of the Clean Water Act. 
The goals of the Act require it. We need the commonsense 
approach that Congress intended the Clean Water Act to protect 
our Nation's waters broadly so that we can reduce discharges of 
pollutants and ultimately achieve the goals of the Act, making 
all waters swimmable, fishable, and safe for other uses.''
    And finally, from G. Tracy Meehan, former Administrator for 
the Office of Water during the current Bush administration:
    ``Mandating navigability as a basis of jurisdiction is 
inconsistent with the Act's overall objective of restoring and 
maintaining the chemical, physical, and biological integrity of 
the Nation's waters. It is an artifact of an earlier law, 
dating back to the 19th century, which was designed to avoid 
obstacles to waterborne commerce rather than to implement 
integrated watershed management or environmental protection.
    ``I believe that our unique approach to `environmental 
federalism' under the Clean Water Act, and a science-based 
watershed approach to protecting America's aquatic resources, 
merit congressional action to clarify an extremely confusing 
and Byzantine situation which now exists in our law and 
regulation.''
    I thank my colleagues and our witness for their indulgence. 
This is requested by our Chairman, and which is completed.
    I now recognize Congresswoman Norton.
    Ms. Norton. I thank you, Madam Chairman. I had desired to 
stay at this hearing. I have another hearing. And I did want to 
make a short opening statement because of the nexus between 
what has been reported in chlorine spikes in water here in the 
Nation's Capital this very day and the condition of the Potomac 
River.
    Lest we believe that rigid circumvention of the definition 
of a river or a waterway is the way to health and safety for 
the American people, we have already had a water scare in this 
region, a lead water scare, where people were not informed of 
lead spikes. And we are using a new chlorine in the river they 
want to refine.
    There is a report this morning of chlorine toxins found in 
water by a national environmental group. With 1.1 million 
consumers, including the Federal sector, northern Virginia, 
and, of course, the residents of the District of Columbia, the 
Agency is very much between a rock and a hard place. The 
chlorine toxins come from what is necessary in order to make 
drinkable water from the Potomac River. Now, if that water gets 
toxins of every kind, in order to make sure we are not truly in 
a Third World country, you pour in all kinds of chemicals. And 
now you get another reaction.
    What is the answer? All informed experts say the answer is 
go to the water itself. You will always find yourself, it would 
appear, in the position we in this region are in. We have 
responded to lead in the water, we have responded to toxins in 
the water with a chlorine chemical. It now is producing the 
possibility of chlorine toxins. That kind of seesaw is as 
dangerous to the health and safety of those in this region, and 
we are informed that this is the choice in other regions as 
well where this particular derivative is being used as what we 
are trying to combat.
    The answer is that there is no way to avoid the source of 
the problem. The source of the problem is in the water itself. 
We will never decontaminate enough the water without, in fact, 
producing new issues for us. And in the process we do not know 
how many men, women, and children, and especially children, may 
be put in danger.
    So I could not be more grateful for this hearing, this 
series of hearings, to deal with water and try to correct the 
Supreme Court decision.
    Ms. Johnson of Texas. Thank you very much, Congresswoman.
    Now the Committee will hear from our witnesses. Our first 
panelist is the Honorable Carol Browner, who is a principal at 
The Albright Group, but she was the Administrator under the 
Clinton administration of EPA. Thank you for being here, and 
you can begin your testimony.

 TESTIMONY OF CAROL M. BROWNER, PRINCIPAL, THE ALBRIGHT GROUP, 
 LLC; AND FORMER ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION 
                             AGENCY

    Ms. Browner. Thank you very much, Madam Chair, and 
Congressman Baker, and Members of the Committee, for the 
opportunity to speak to you today about the status of our 
Nation's waters. If I might take a moment to congratulate 
Chairman Oberstar for his lifelong leadership on the issue of 
clean water for the people of this country. In fact, I think it 
dates back to his role as a staff person here before he was 
even elected, a quite admirable commitment.
    I want to speak to you today as a former Administrator of 
the Environmental Protection Agency, and I specifically want to 
lend my support to Chairman Oberstar's bill, which reaffirms 
the long understanding of which waters in this country are 
protected by the Clean Water Act.
    As the Chairwoman noted, I am joined in supporting this 
bill by a number of former Administrators, both Democrats and 
Republicans, and by the former Deputy Administrator for Water 
under the current administration. The issue that has brought us 
here is obviously the Supreme Court decisions as they relate to 
wetlands. And there is no denying the importance of wetlands 
for our Nation's public health, our economy, our ecosystems.
    Wetlands protect and purify our waters, they shield our 
homes and businesses from flooding, and they provide valuable 
habitat to a wide range of wildlife. We have already lost far 
too many of these valuable resources and, in all, the United 
States has lost nearly 50 percent of its wetlands, and 
continues to lose about 60,000 acres of wetlands per year.
    Having said that, I think it is very important to remember 
that the definition which is the subject of this legislation 
would not only be applied to which wetlands are protected, but 
it would impact all of our water bodies, because the Clean 
Water Act also looks at what can be discharged from a pipe into 
the river that becomes our drinking water, what can be 
discharged into the streams and the tributaries that then flow 
into our rivers.
    And so when we think about this legislation, we can't 
simply think about the wetlands that sort of brought this bill 
front and center, but we should think about the entirety of our 
commitment as a country to protect our water resources.
    For three decades, 35 years following the Clean Water Act's 
passage, agencies and courts have agreed on what waters are 
protected. We can go back and forth on what this or that word 
meant, but when you look at the day-to-day interpretation and 
the application of that understanding, there has been 
widespread agreement.
    Obviously, with these recent Supreme Court decisions, there 
are some ambiguities. As a former regulator, I believe very 
strongly that the Congress should clarify and resolve these 
ambiguities. What will happen is in the permitting process, 
either in the wetlands permitting process or in the discharge 
permitting process, these ambiguities will lead to delays, they 
will lead to litigation.
    If Congress can make the decision to embrace the 
interpretation that has withstood the test of time, we can 
resolve the ambiguities that have risen up because of the 
decisions. In the most recent Supreme Court case, the Rapanos 
case, I was joined by three former Administrators in filing an 
amicus brief supporting the 35-year interpretation of the 
definition. It is also, I think, very important for the 
Committee to note that we shared the same position in that 
litigation as the current administration shared before the 
Court.
    Let me close by encouraging you to move as quickly as 
possible. These ambiguities are a real problem for the 
regulators. And let me also close by noting that before I 
joined the Environmental Protection Agency under President 
Clinton, I served as a State Secretary of the Environment. I 
served as the Secretary of the Environment for my home State of 
Florida. We ran a very, very serious wetlands protection 
program in Florida. Wetlands are essential to our economy in 
Florida. Even with as serious a program as we had in Florida, 
we could not have done the job of protecting our citizens' 
water resources without a Federal program. It takes both a 
Federal and a State program.
    Again, I thank you for the opportunity to be here, and I 
look forward to answering any questions.
    Ms. Johnson of Texas. Thank you very much for being here.
    Congressman Baker.
    Mr. Baker. Thank you, Madam Chair.
    Ms. Browner, in order to understand more fully your view of 
scale or scope of the subject at hand, you make reference in 
the written testimony to the hydrologic cycle of water. Can you 
give me just a brief description in your mind of what that 
hydrologic cycle narrative would look like? Is it groundwater 
which flows into a wetlands which flows into the oceans, or is 
it broader than that? What constitutes your picture of that 
cycle?
    Ms. Browner. Well, I would actually probably explain it 
slightly in the reverse of what you said, but along those 
lines. There are any number of parts of the country where a 
wetland essentially is filtering water. It may be rainwater, it 
may be water that has come from a tributary, it may be 
floodwaters that are filtering those waters as they seep down 
into the groundwater. That, in my mind, is a hydrological 
connection.
    Mr. Baker. So it is surface water through the geologic 
structure that winds up in some sort of discharge ultimately to 
an ocean. I am trying to get your big picture.
    Ms. Browner. Not necessarily to an ocean. A good example 
would be in Florida. The State of Florida is dependent upon an 
underground aquifer for its drinking water. And so that doesn't 
have a connection to the ocean--at least none that scientists 
have discovered yet, maybe someday they will. But you want to 
protect that drinking water source. And the best way to do it 
is to think about what is happening in the recharge areas above 
that underground aquifer, which may be a wetland, which may be 
a river. You know, the connections can happen in many ways.
    Mr. Baker. In the case of the Baton Rouge aquifer, we have 
rainfall in Mississippi that does go through the sandstone to a 
depth of about 12,000 feet. The trouble is we do have 
oceanwater intervention coming from the gulf that is creating a 
wedge of saltwater intrusion, so I got it. My point is larger 
than that.
    You look at water in the universal context, from pond 
inland to ocean international. That would include rainfall. 
That is a way to recharge the aquifers.
    Ms. Browner. Correct.
    Mr. Baker. The scope of your jurisdictional reach is that 
if it is subject to any of those moving parts and there is a 
problem, the Clean Water Act protections should be invoked to 
cure that problem.
    Ms. Browner. I believe that the interpretation that the 
EPA, the Corps, and the Congress relied on for 30-some years is 
the proper interpretation. I am not here advocating an 
expansion of those authorities.
    Mr. Baker. I understand.
    Ms. Browner. Just preserve what we have been relying on.
    Mr. Baker. I understand. I am not suggesting you need an 
expansion. I think your definition is an expanded view. And I 
am merely trying to get a clear understanding of the moving 
parts of the water systems you think should be subject to the 
Clean Water Act. And I will move on, because we can't get 
resolution here.
    Ms. Browner. With just a point of clarity, I am not 
suggesting to expand the definition. I am simply saying 
reaffirm the definition that has been relied on for 35 years.
    Mr. Baker. Well, I am standing on the definition that comes 
from the debate on the House and Senate floors from the 1972 
amendment adoption in which the scope of argument was not 
beyond navigable waters, because there were navigable waters 
not then subject to the Clean Water Act. And the scope of the 
definition in that context was to make the act applicable to 
all navigable waterways, not bodies that were not adjacent to 
or abutted navigable waterways. And I can provide you that 
text.
    But, secondly and more importantly, even in the Rapanos 
case, when you read the holding carefully, one of the principal 
elements in the finding that led to the conclusion that that 
wetlands were subject to Clean Water Act's jurisdiction was 
because one of the justices said you could literally go from 
ankle to waist-deep water directly into a navigable waterway. 
And it was because of the abutment of the wetlands to a 
navigable waterway that made jurisdiction attach.
    But navigable waterway was the block on which all of this 
jurisdictional claim was built. That is the troubling aspect in 
the current debate. By removing the term "navigable" from 
"navigable waterway," we will now make waters of the United 
States literally any pond holding of water anywhere in the 
country, without the requirement of its ultimate relationship 
to a navigable waterway, as the principal regulatory component.
    That is why I was pressing on the subject of hydrologic 
cycle, because I believe your definition of hydrologic cycle 
and jurisdictional reach of the CWA is much broader than that 
which abuts to a navigable waterway.
    In any event, I asked the question about your view of the 
hydrologic cycle. If it were to rain, and that rain then 
becomes the recharge mechanism for the aquifer, shouldn't that 
area where the rain fell be subject to clean water concerns? 
And the reason why I bring that up is the Chairlady earlier had 
in the year a very educational and interesting hearing on 
atmospheric deposition of mercury. If we are worried about 
pollutants, and we are worried about water quality, and we are 
worried about getting it right, shouldn't be worried about 
mercury coming down in rainfall on a plain in west Oklahoma?
    Ms. Browner. As you might be aware, I tried very hard to 
regulate mercury while I was at the EPA.
    Mr. Baker. I am fully aware.
    Ms. Browner. And this administration has not chosen to 
continue those regulations. I do share your concern about 
mercury.
    Mr. Baker. And rainwater?
    Ms. Browner. No. Again, I want to be very clear, I am not 
advocating an expansion of the jurisdiction of the Clean Water 
Act. If the rain falls in what is currently covered under the 
Clean Water Act, a wetland, then I think that wetland should be 
protected under the Clean Water Act. It doesn't mean someone 
can't get a permit and go through the process, or it doesn't 
mean where there are exclusions in the permitting process. They 
can't take advantage of those. But if that rainwater falls in 
an area that is currently protected under the Clean Water Act, 
I would hope that all of us would agree to continuing to 
protect that area so that rainwater which is polluted, as you 
noted, can be cleaned by nature as it seeps through the wetland 
into the recharge area.
    Mr. Baker. And this will be my final question, because I 
know my time has expired, but that presses the question a bit. 
And that is, if the wetland is not connected in some form or 
fashion, by tributary or other means, to the navigable 
waterway, in my view that is not a regulated wetlands.
    However, when someone makes a tractor tire in an 
agricultural field, and it is filled with water--and I have 
cases that I will provide the Committee, 46--when the tractor 
tire filled with water it became a regulated wetland.
    Secondly, construction projects under the Interstate 
between Baton Rouge and Lafayette, where there are isolated 
wetlands under the elevated expressway, those were maintained 
by law by the contractor during the course of construction as 
isolated wetlands.
    If the bad rain we don't like falls on either of those two 
wetlands, your view would be that is subject to the Clean Water 
Act jurisdiction. You don't think it is?
    Ms. Browner. If there is a connection to a water of the 
United States, it is covered. But you know, there are many ways 
those connections have to be demonstrated. And you know, it is 
obviously a scientific question. And there are experts in the 
field who do this. And it is quite possible--the hardest thing 
about this issue, and I fought this for the 20 years I have 
been involved in it, is that the least best indication of what 
is a wetland is water. We are far better off looking at what is 
the hydrology, what is the----
    Mr. Baker. Vegetation.
    Ms. Browner. --vegetation.
    Mr. Baker. Porosity. I have spent a lot of time on it, and 
I have innumerable cases in my files which I intend to--and am 
in the process of providing to the Committee--where the 
hydrology, the porosity, vegetational quality, all of the 
elements that go into south Louisiana, where it is constructed 
of seven different Mississippi River deltas, most of which is 
beyond the Continental Shelf by depositional factor. We have 
42,000 feet of squish. It is all put there by Mother Nature. It 
is not part of the Continental Shelf. But there is stuff that 
is there that does not constitute wetlands.
    Ms. Browner. I don't doubt. I don't doubt.
    Mr. Baker. Well, the EPA does and so does the Corps, 
because people can't get permitted. I yield back.
    Ms. Johnson of Texas. Thank you very much. The Chair now 
recognizes Mr. Bishop.
    Mr. Bishop. Thank you, Madam Chair. Thank you for your 
testimony, and welcome back to Capitol Hill.
    Ms. Browner. Thank you.
    Mr. Bishop. I just want to make sure that your position is 
well understood by all of us. The current law, the Clean Water 
Act, defines navigable waters as, quote, "the waters of the 
United States." and then the Army Corps of Engineers has 
developed a set of definitions which in effect flesh out that 
rather broad statement, and the EPA has done the same. And what 
you are indicating to the Committee is that it is your position 
that you believe we should continue to honor those definitions.
    Ms. Browner. Correct.
    Mr. Bishop. You are not advocating any expansion of those 
definitions?
    Ms. Browner. No.
    Mr. Bishop. Thank you.
    Now, the Rapanos case severely limits the definition of 
navigable waters, or defines navigable waters in a way that is 
much less expansive than current law. Can you walk us through 
the environmental implications if that becomes our guiding 
principle in terms of how we regulate waters?
    Ms. Browner. Let me just say one quick thing about the 
Rapanos case. It is a very confusing case, because Justice 
Kennedy sort of moves back and forth, if you will. On the 
technical aspect of the decision, there are five of them 
agreeing. And then on the procedural aspect, Justice Kennedy 
joins with another four, and so the case gets sent back. So it 
is a confusing case.
    The concern that I have with respect to Rapanos is that 
there are waters of the U.S. that are--that would have 
historically been protected may no longer be protected. It 
could depend in part on how the administration chose to read 
Rapanos.
    The simplest thing to do is for Congress to clarify that 
those things which we have been protecting under the Clean 
Water Act for 30-some years we will continue to protect. The 
real day-to-day problem if we don't continue these protections 
is that we could see changes, not just in the wetlands program 
in terms of what is protected, but potentially changes in terms 
of which water bodies are protected from discharges, 
pollutants, that then get into our drinking water supplies and 
have to be cleaned up.
    Mr. Bishop. Okay. Thank you very much.
    I have a bill that I am hoping that will get a fair hearing 
in this Congress called--I need a better title--but it is 
called the Raw Sewage Community Right to Know Act. And----
    Ms. Browner. A good one.
    Mr. Bishop. If you can come up with a title, I would 
appreciate it. But that is--what we are hoping to do with that 
is create a standard for notification of the kind of discharges 
that right now take place without any form of national standard 
for what the notification requirements are.
    Ms. Browner. I assume what you are talking about are 
combined sewer overflows.
    Mr. Bishop. That is indeed what I am talking about.
    Ms. Browner. If I might, we worked with Congress to pass a 
national Safe Drinking Water Act during the Clinton 
administration. And one of the things that we were able to 
secure in that bill was a right-to-know program. So people now 
receive on an annual basis from their drinking water company a 
list of what pollutants were found, where they had exceedances. 
And you might want to take a look at that, because I think it 
has been a very successful public right to know.
    Mr. Bishop. Thank you very much. Madam Chair, I yield back. 
Thank you.
    Ms. Johnson of Texas. Thank you very much. Congressman 
Coble.
    Mr. Coble. Thank you, Madam Chair.
    Ms. Browner, good to have you with us today. Ms. Browner, 
in the original drafting of the Clean Water Act, Congress 
carefully chose to divide regulatory authority between the 
Federal Government and the States, recognizing the vital 
interests that the States have in protecting their own waters.
    Would H.R. 2421 undo this partnership, and therefore 
transfer virtually all regulatory authority over to the EPA and 
the Corps?
    Ms. Browner. No. It does not change the partnership between 
the States and the Federal Government. It simply codifies the 
definition, if you will, that we have relied on for 32 years.
    Mr. Coble. Well, is this bill an appropriate reorganization 
of authority, considering the structure of the original Clean 
Water Act and the States' knowledge of their own water issues?
    Ms. Browner. This bill doesn't change the relationship, if 
you will, between the Federal and State governments. I should 
have noted in my testimony 34 States also filed amicus briefs 
in the Rapanos litigation, taking the same position as the 
former Administrators, which is we wanted to preserve the level 
of protections. I think there is absolutely no State in the 
country that doesn't share a water body with at least, you 
know, one other State.
    My home State of Florida, we share 18 different rivers with 
our neighbors to the north. And so you need a Federal program 
and you need a Federal-State partnership if you are going to be 
able to provide a level of protection. And nothing in this 
legislation would change that.
    Mr. Coble. Well, let me ask you this Ms. Browner. This may 
be a quasi-hypothetical question. In North Carolina we have a 
vast number of wetlands, particularly in the east, as well as 
river basins and tributaries that drain from the Appalachian 
and the Blue Ridge Mountain range. Much of this runoff comes 
through the district I represent via the Yankton River Basin.
    What is your comment--Strike that. Let me ask it a 
different way. I think you and I may not be in agreement, but 
we can disagree agreeably, however.
    Ms. Browner. There you go.
    Mr. Coble. Let me ask you to comment about the effect of 
federalizing waters, if in fact that would be the case in the 
United States, particularly as it pertains to runoff from 
higher elevations.
    Ms. Browner. I can't imagine why anyone would want to 
federalize runoff. I simply can't. You need the Federal and 
State government working together if you are going to deal with 
the ongoing issues of what we call surface water pollution. So 
the runoff as you are referring to frequently ends up in a 
river or a lake or a stream, a surface water. It may on 
occasion move through a wetland into the surface waters or 
through a wetland into a groundwater. But it requires both 
Federal and State actions to protect those surface waters and 
those groundwaters.
    I don't know why you would have one or the other entity 
with exclusive responsibility. We have been very, very 
successful in this Federal-State partnership.
    Mr. Coble. Well, I thank you for that. I think much of this 
is very likely, Madam Chairman, subject to interpretation. I 
think some of us believe that this is going to probably be 
over-federalizing. Perhaps others think that perhaps will not 
be the case. So that is the beauty of a hearing such as this. 
We can probably get to the core of it.
    Ms. Browner. Madam Chair, it might, just quickly to remind 
people of how the program works. EPA delegates the day-to-day 
operation of permitting to States. I can't speak to how many 
States have those delegations today. I can tell you when I was 
at EPA, we were very aggressive in turning over the operation 
of the permitting programs, both wetland permitting authorities 
and NPDES, or discharge permitting authorities.
    You know, the idea of quote, "federalizing," one, I don't 
think it's a good idea. But let's say you went down that path; 
you would then have to provide the resources to EPA to handle 
all of those permitting programs that the States are currently 
handling. And I can't imagine anyone intends to do that.
    And so I think the Clean Water Act, the Clean Air Act, a 
number of our Federal environmental laws have very wisely--
Congress has very wisely said, EPA, you look at the big 
picture. But then when it comes to day-to-day operation, if the 
States have their State authority, if they have the resources, 
if they have the personnel and the expertise, let them do it.
    Mr. Coble. Thank you for that.
    Madam Chairman, do you award credit for yielding back time 
before the red light illuminates? If so, I yield back.
    Ms. Johnson of Texas. Thank you very much, Congressman. The 
Chair recognizes Congressman Larsen.
    Mr. Larsen. Thank you, Madam Chair. Just a note for Mr. 
Bishop. It is a rare bill in Congress that actually describes 
what it does. That is why that title is a good one.
    Ms. Browner, thanks for helping us out today. As I 
understand the Scalia reasoning versus the Kennedy reasoning on 
Rapanos, Scalia basically said there is a line to be drawn. 
Over this line is navigable water and then on the other side is 
nonnavigable. What Kennedy said is that there is some confusion 
about what is navigable or not, but there is a--he called it 
significant nexus test. Is that pretty accurate?
    Ms. Browner. Correct.
    Mr. Larsen. What I didn't get from our staff memo was what 
are you saying Scalia used to determine, to draw that line?
    Ms. Browner. Well, Scalia starts by looking to Webster's 
Dictionary for a definition of wetlands. I do not agree with 
that. I think Webster's definition is something that has water. 
And as I said previously, water may be the least--presence of 
water may be the least best indicator of whether or not 
something is a wetland. So you have to go to where his 
reasoning starts, and it gets you to this point where waters 
that are currently protected would no longer be protected.
    You know, I think this is more logical than perhaps it can 
appear at first glance. I mean the waters--the fact that for 32 
years everyone could agree on what was the scope and, you know, 
there weren't any real debates about that, is a pretty good 
test in my mind of a successful definition.
    Mr. Larsen. Let me just pronounce it the SWANCC decision.
    Ms. Browner. SWANCC is how it is pronounced.
    Mr. Larsen. The SWANCC decision.
    Ms. Browner. Sounded better than SWANCC.
    Mr. Larsen. At least in the staff memo we have, it 
discusses a footnote in which the majority, the 5-4 majority--
well, actually Rehnquist opines that Congress must have 
intended that there be some nexus to actual navigation, but the 
majority referenced the legislative history, and noted Congress 
intended the phrase "navigable waters" to include at least some 
waters that would not be deemed navigable under the classical 
understanding of that term. That was a 2001 decision.
    What then informed the Court in 2006?
    Ms. Browner. I think the change in the makeup of the Court.
    Mr. Larsen. Okay. Perhaps I was getting there. So what did 
Scalia mean by intermittent or ephemeral waters? That is the 
waters that would be on the other side of the line that would 
not be included as navigable water?
    Ms. Browner. I am not sure what he means. There are 
scientific definitions which I would be happy to have someone 
provide to you about what those terms mean.
    Mr. Larsen. I would appreciate that. And I would have the 
staff follow up on that question for me. I would appreciate it.
    Ms. Browner. What is complicated in Rapanos, you have to 
remember, are what are the facts, which is there clearly was a 
connection in the most obvious sort of way at one point in 
time, and then a berm gets put.
    Mr. Larsen. In the actual case.
    Ms. Browner. Yes, in the actual case. So this manmade 
structure comes along and suddenly we are going to have a 
different interpretation of what is protected because of a 
manmade structure? That is what I think is particularly 
troubling.
    Mr. Larsen. Uh-huh. So in moving forward perhaps on Mr. 
Oberstar's bill, the issue--I mean what is the issue facing us 
if we--what do we have to do if we are going to--if the 
majority of the Congress, regardless of how the majority is 
made up in Congress, is going to fix this to be responsive to 
the Supreme Court? Because essentially we have to do something 
that is responsive to the Supreme Court.
    Ms. Browner. I think you could, obviously, do nothing. The 
problem is that with the SWANCC and the Rapanos decision there 
is an ambiguity. A lot of people can read that ambiguity--
different people can read it different ways. And I think that 
clarifying that the original jurisdiction is what the Congress 
intends to be carried forward is the simplest thing to do. And 
that is essentially what Oberstar does. If you don't clarify 
that, I suspect there will be permitting delays and there will 
be litigation. So a clarification I think for those people who 
seek permits could be very valuable.
    Mr. Larsen. Just to restate what we believe the original 
intent of the CWA is? Of the Clean Water Act?
    Ms. Browner. To protect the waters of the U.S.
    Mr. Larsen. Yeah.
    Ms. Browner. I mean it is very clear.
    Mr. Larsen. All right. Thank you.
    Ms. Browner. Thank you.
    Mr. Larsen. Thank you, Madam Chair.
    Ms. Johnson of Texas. Thank you very much. Congressman 
Brown of South Carolina.
    Mr. Brown. Thank you, Madam Chairwoman.
    Ms. Browner, glad to have you here today. Let me see if I 
can get my questions together. Here I am. I apologize. You 
stated that H.R. 2421 defines "waters of the United States" and 
they are nearly identical to the definition promulgated in 
rules and used by the Corps and EPA for over 30 years.
    However, when the text of the rule you mentioned is 
compared to the text of the bill, there is substantial 
differences in the wording, including major omissions and 
changes that would expand the scope of Federal jurisdiction 
under the Clean Water Act to all waters and all activities 
affecting those waters to the fullest extent under the 
Constitution. Neither current law nor the Corps' current 
regulations say that. Further, the bill's definition leaves an 
important exemption in the regulation for prior converted 
croplands and waste treatment systems.
    If you would please explain how you can characterize the 
bill's definition as nearly identical to the definition 
promulgated in the Corps and EPA's rules.
    Ms. Browner. Mr. Oberstar's bill simply picks up the 
definition that has been relied on by EPA and the Corps for the 
last 30 years, the regulations which EPA and the Corps have 
adopted pursuant to the Clean Water Act, and that definition 
will remain in effect. There is nothing in this legislation 
that changes those regulations. So when people talk about some 
of the exemptions that EPA and the Corps have seen fit to put 
forward over the years, there is nothing in this that changes 
those exemptions. This bill is not amending those sections that 
EPA and the Corps may have relied on in putting forth those 
exemptions.
    Mr. Brown. So I guess the bottom line is you feel like that 
this bill does not further encroach on undefined wetlands as we 
see them today.
    Ms. Browner. I do not think it further encroaches. I don't 
know that I would use the word "encroach," but----
    Mr. Brown. And all the exemptions that have been identified 
in the past will be continued; the farming practices and some 
of the other issues?
    Ms. Browner. Correct. I should be clear, I don't get to 
speak for the current administration. That is probably obvious. 
And they may decide, if the bill passes, to read it and change 
some regulation. I will tell you if I were sitting at the EPA, 
I would look at this bill and I would say it is a 
recodification of what EPA has understood to be the definition 
for 32 years, and therefore the regulations would be 
maintained.
    Mr. Brown. Madam Chair, if I might just give one example. 
In my region in South Carolina along the coast, we have lots of 
isolated rice fields, I guess for better word, which means they 
are diked-in wetlands, but they don't have a traveling path to 
the navigable waters unless there are reasons to lower the 
levels within that confinement. How would this bill----
    Ms. Browner. If they are not currently regulated, they 
would not be regulated. If they are currently regulated by 
Federal law, then whatever that permitting program is would 
continue. I don't know what the State law implications might 
be. I don't know what your State law is in terms of those 
areas.
    Mr. Brown. Okay. Thank you very much. Thank you, Madam 
Chair.
    Ms. Johnson of Texas. Thank you very much. The Chair now 
recognizes Congressman Baird.
    Mr. Baird. Administrator, thanks for being here and for 
your many years of service to this country.
    Ms. Browner. Thank you.
    Mr. Baird. As we look at the challenge of trying to protect 
clean water for all the things that the Clean Water Act was 
meant to, when I hear from folks it is not just a matter of who 
has jurisdiction over what, which is really the focus of the 
bill we are kicking around today, but it is also the permitting 
process itself which can be lengthy, which can be 
idiosyncratic, which can sometimes be inconsistent with one 
agency telling an individual landowner or business to do one 
thing and another saying another.
    So for me, I think there would be a great deal of less 
trepidation or concern about this particular language in this 
bill if the process at the permitting agencies were itself 
reformed.
    Can you give us any insights from your experience, if you 
could wave the magic wand and improve the permitting process 
across all the various agencies that could be impacted by the 
regulatory process, what kind of things would you recommend?
    Ms. Browner. Well, we are talking about two different 
permitting processes under the Clean Water Act. We are talking 
about 402, which is the NPDES program, and then we are talking 
about 404, which is managed by the Corps, and is the wetlands 
permitting.
    I think a very important thing to do is to turn over the 
day-to-day operation of these permitting programs to State 
programs that have the resources and the qualifications to 
handle them. You know, the States--I come from State government 
originally. I think States will generally make a very, very 
suitable decision. You need to retain Federal oversight, 
because you do have these instances, as I mentioned earlier, 
where waters are shared.
    You know, Florida shares rivers with Alabama and Georgia. 
And so you need some sort of Federal oversight.
    Ms. Browner. But I do not know, as of today, how many of 
these permitting responsibilities have been delegated to 
individual States, but I think that that has certainly proven, 
in many instances, to be successful.
    Secondly, I certainly think where there are well-recognized 
exemptions and practices, that will not require a permit. On 
that, we can all agree. We did a streamlining initiative when I 
was at the EPA, and we articulated a set of those. I do not 
know if those have been maintained. I presume they have.
    Look, practices change in ways in which development can 
occur. Ways in which dredging and filling can occur also 
change, and so it is the responsibility of the Agency to sort 
of keep up with what are those changes and whether or not any 
of those practices might fit into--it is not really an 
exemption. There is a legal process that gets sort of created 
in a regulation, so you do not have to go through a permitting 
decision individually, but nevertheless, you know, those 
activities can be on a list and be respected as activities that 
the Agency thinks can be handled in a way that are protective 
of the Nation's waters.
    Mr. Baird. Do you----
    Ms. Browner. The other thing I would just say is, you know, 
throughout my tenure at the EPA, we heard from many Members of 
Congress of situations that appeared to be very, very 
troubling. You know, we always did our best to fully understand 
those situations, and there were situations where there were 
some troubling matters, but in the vast majority of them, what 
was going on was the Department, the Agency, the State thought 
that "no" was the right answer, that you had finally found a 
resource, and the kind of impacts that the permitter was 
seeking were just inappropriate under the law. The Agency is 
not free to act outside of the law--under the law. So, you 
know, as people talk about various stories, I think it is 
really important to have all of the facts.
    Mr. Baird. I think that is true, and my guess would be that 
almost everybody in this body has had some calls from people 
who want us to intervene and try to move the Agency in one 
direction or another, and as you looked at the case, you 
thought they just got a "no" they did not like, but at the same 
time, my guess would also be that many of us have heard several 
horror stories of people who are trying to do fairly reasonable 
things.
    We had a meeting on permit streamlining in my district, and 
one old-time guy, a farmer, got up, and he said, "You know, 
sometimes I think agencies could never be on 'Who Wants to be a 
Millionaire' because they could never say, 'That is my final 
answer.'"
    Ms. Browner. Well, I think the problem is agencies 
frequently say, "It is my final answer," and no one wants to 
hear it as their final answer. ``No'' is not a word that many 
people like to hear.
    Mr. Baird. The other question arises when you have got 
multiple agencies with multiple jurisdictions for multiple 
pieces of legislation, all of which have a piece of the pie.
    Any quick comments before my time runs out on that? You 
have got EPA, NPDES, plus possibly State and local agencies.
    Ms. Browner. Well, the State and local authorities stem 
from the Federal authority, so it is for the EPA to delegate 
and to oversee it. I think, certainly during my tenure, we did 
a pretty good job of working across agency lines. I mean it is 
not a clean water example, but with the passage of the Food 
Quality Safety Act, I mean there was a huge amount of 
cooperation that had to go on between the Department of 
Agriculture and the EPA, and it went on, you know, respectfully 
and fairly successfully.
    You know, I cannot speak for this administration what level 
of cooperation is going on. There will be differences, but that 
is why you have a White House. That is why you have a 
President. You know, they ultimately get to decide between the 
two views that departments or agencies might take.
    Mr. Baird. I appreciate the input.
    I will just close by saying that I asked similar questions 
yesterday, and I think if we as a Committee address the issues 
of permit streamlining, efficiency and fairness, there will be 
a lot less concern about some of the other matters addressed in 
this legislation.
    Thank you for your services.
    Ms. Johnson. Thank you very much.
    Congressman Westmoreland.
    Mr. Westmoreland. Thank you, Madam Chair.
    Ms. Browner, how long were you a public servant with the 
State and with the Federal Government?
    Ms. Browner. In public office or--I also worked as a 
staffer.
    Mr. Westmoreland. Just working.
    Ms. Browner. Working for government? Gosh, more than 20 
years. I have not added it all up. I was really young when I 
started.
    Mr. Westmoreland. I understand. You still are.
    Ms. Browner. No, I am not.
    Mr. Westmoreland. Now you are a principal of the Albright 
Group?
    Ms. Browner. Uh-huh.
    Mr. Westmoreland. What do you all do? What does the 
Albright Group do?
    Ms. Browner. At the end of the Clinton-Gore administration, 
Secretary Albright, myself and several others formed a 
consulting firm. We work with companies outside of the United 
States--American companies, mostly American companies--when 
they have problems outside of the United States.
    I also serve on a number of nonprofit boards. I chair the 
National Audubon Board. I am a founding board member of the 
Center for American Progress. I just joined the League of 
Conservation Voters with your former colleague, Mr. Boehlert, 
and the list goes on.
    Mr. Westmoreland. So your company mainly works out of the 
country?
    Ms. Browner. Most of our representation--I am not a 
registered lobbyist. I do not lobby.
    Mr. Westmoreland. Okay.
    Ms. Browner. I do not have clients with matters--I might 
have clients who might have matters before the United States 
Congress, but I do not represent them. I leave that to my 
husband.
    Mr. Westmoreland. But environmental issues, is that what 
the issues are that you are involved in?
    Ms. Browner. No, not necessarily.
    Mr. Westmoreland. A wide variety?
    Ms. Browner. A wide variety.
    Mr. Westmoreland. Okay. I want to ask you a question about 
the savings clause, if I could; and I am assuming you have read 
the bill and have read the savings clause.
    Ms. Browner. Uh-huh.
    Mr. Westmoreland. It has been suggested by supporters of 
the bill that the savings clause, section 6, should address the 
concerns of farmers, forest landowners and others who benefit 
from certain statutory exemptions enumerated in the clause. 
Given the limited scope of these exemptions, however, I fear 
that this legislation will sweep many of these agricultural and 
forestry activities into the scope of the Clean Water Act 
regulation simply because they are conducted in or are simply 
near some ditch, swell, gully or ephemeral stream that will now 
be deemed "a water of the United States."
    Let me raise some specific examples, if you would consider 
them, and perhaps you can offer your views on how the savings 
clause benefits any of these activities.
    It seems that the list of statutory exemptions in the 
savings clause is incomplete because it includes only 
agricultural return flows, but not the agricultural storm water 
discharges. Agricultural return flows are exempted from the 
clean water regulation by exclusion by the statutory definition 
of the "point source" and by an additional permit provision as 
provided in 4201.
    Ms. Browner. 402.
    Mr. Westmoreland. 402, that is right.
    Agricultural storm water discharges, however, are exempt 
only by virtue of being excluded from the "point source" 
definition. Nevertheless, equally exempt, can you fathom any 
reason why the agricultural storm water discharges have not 
been listed as a specific exemption in the savings clause?
    Ms. Browner. I think there are a couple of questions, so 
can I kind of go through them?
    Mr. Westmoreland. Sure.
    Ms. Browner. Your first question is--the gist of it is: Are 
the current exemptions in any way shape or form changed by this 
legislation? As I said previously, I do not believe so.
    Then I think your second question is: Does the savings 
clause in some way or another preserve some exemptions, 
existing exemptions, and delete others?
    Well, if that is your concern, get rid of the savings 
clause. You do not need, in my opinion, a savings clause, 
because the bill is very clear. It is amending one section; it 
is not amending the sections that the exemptions fall under, so 
those exemptions are retained.
    I do not fully understand what the logic of the savings 
clause was, but I suspect it was an effort to speak to some 
concerns that had been raised, but I do not actually think you 
need a savings clause.
    Mr. Westmoreland. So you think that it would not hurt to 
put the same exemptions that are in the Clean Water Act now 
into this bill?
    Ms. Browner. Well, I am not sure that--I will have to say 
that I am not sure your premise is accurate. I am not sure 
there actually is an exemption for agricultural point source 
discharges from the 402 permitting process. I would suspect 
there is not, but I do not know for a fact.
    Mr. Westmoreland. Okay. Let me ask you this: In the Corps--
--
    Ms. Browner. I do not think under any scenario--the reason 
I am here supporting this is, it simply reaffirms what we have 
been doing for some years.
    Mr. Westmoreland. So you do not have a problem with using 
the same language?
    Ms. Browner. I have a problem if you change the exemptions. 
If you add a few more practices to the list of exemptions in 
this bill, I will oppose the bill.
    Mr. Westmoreland. Okay, but even if we add----
    Ms. Browner. That is probably what you want.
    Mr. Westmoreland. Well, no. Even if they are the ones that 
are in the Clean Water Act now?
    Ms. Browner. But I think you are asking me about one that 
might not be in the Clean Water Act now. We are moving back and 
forth.
    Mr. Westmoreland. Let me rephrase my question. Let me 
rephrase my question.
    If we put exactly what is in the Clean Water Act now in 
this bill as it relates to farming, ranching, mining--
agricultural uses--you would be okay with it?
    Ms. Browner. Any current exemption.
    Mr. Westmoreland. I said, as to exactly what is in there 
now.
    Ms. Browner. But you said "exactly what is in there," and I 
said "exemptions," and exemptions are found in the rules.
    Mr. Westmoreland. Okay.
    As to the Corps and the EPA definition of "navigable 
waters," do you know why they never used the word "navigable"?
    Ms. Browner. I was not in office in 1972.
    Mr. Westmoreland. I understand.
    Ms. Browner. I do not know why.
    Mr. Westmoreland. Did you ever question that, being the 
Administrator, why the bill said "navigable waters"; yet, the 
Corps' and the EPA's regulations never mentioned the word 
"navigable" or anything about navigation or anything else?
    Ms. Browner. Well, I think it is important to remember that 
the law says "the waters of the U.S." and that the regulations 
were intended to put a fine point on exactly what was protected 
and how it would be protected. It is very common that an EPA 
regulation does not--because it is going down to another level 
of detail----
    Mr. Westmoreland. I understand.
    Ms. Browner. --it might not use a word.
    Mr. Westmoreland. Excuse me. I understand, but since the 
term "navigational waters" was used in the bill 81 times and it 
talks about the navigational waters and the definition of the 
Corps and the EPA says the term or the definition for "waters 
of the United States," are you saying those are 
interchangeable?
    Ms. Browner. I am not sure I understand your question.
    Mr. Westmoreland. "navigable waters." what is the 
definition to you of a "navigable water"?
    Ms. Browner. It does not really matter what my definition 
of it is. It is what the Congress said and how that has been 
interpreted and how that has been supported over 35 years; and 
I think that is pretty clear.
    If I might, Madam Chair, just add one point, I think the 
real test, and perhaps what we should all be looking at, is, 
has this law provided us with a program that has led us toward 
cleaner water in this country? That is not to suggest that the 
job is done and that all of our rivers, lakes and streams are 
pristine--they never will be. But we have certainly made real 
progress when it comes to cleaning up our surface waters, and 
that has been, in part, because we have a definition that has 
provided the agencies with the ability to regulate activities 
that impact those rivers, lakes and streams in a detrimental 
manner.
    Ms. Johnson. Thank you very much.
    I have a question or so.
    Currently, under the Rapanos guidance, some point sources 
that may have been governed by the Clean Water Act at one time 
may no longer be required to get a 402 permit.
    What are the likely implications to our efforts to protect 
water quality if the point sources are excluded?
    Ms. Browner. Well, the most significant progress we have 
made in protecting our Nation's waters is through the point 
source program, without a doubt, through the 402 permitting 
program. If Rapanos is interpreted by the administration to 
change that program to limit the ability of the EPA in the 
States because the States use this authority to require 
reductions in point source or discharges from pipes, then we 
could see, and probably would see, an increase in pollution 
loadings in certain water bodies. It would be bad for water.
    Ms. Johnson. Now, currently about, I guess, 30 States have 
State water pollution laws that are less protective, actually, 
than they would be under the Clean Water Act.
    If no changes are made to the Clean Water Act under this 
Rapanos guidance, is it likely that all of our States will 
strengthen their laws to protect these waters that are no 
longer protected by the Clean Water Act?
    Ms. Browner. I do not know that I would--I would be 
concerned that not all States would actually strengthen their 
State laws. So rather than having sort of this broad Federal 
level of protection, you would have varying degrees of 
protection; and what would then happen is a downstream State 
would, no doubt, turn around and sue the upstream State because 
their lower water quality standards were suddenly endangering 
the drinking water or the oyster beds or, you know, some other 
fishing activities.
    I think that you want a strong Federal floor for protection 
of water because, you know, we are one country--we travel, we 
move around, our commerce moves around. If States want to 
choose to go further in protecting their rivers, lakes and 
streams, I believe they should be able to.
    You know, the Florida Everglades is a very different place 
than some of your water resources in Texas, and therefore, 
Florida might want to have a tougher phosphorus standard than, 
perhaps, another State might want to have; but you still need 
this Federal infrastructure to ensure sort of a level playing 
field between the States.
    Ms. Johnson. Thank you very much.
    Congresswoman Drake.
    Mrs. Drake. Thank you, Madam Chairman.
    Thank you, Ms. Browner, for being here today.
    I hate to keep asking the same question, and I have heard 
you say very clearly that this is not expanding, it is simply 
defining and that we are going to do what we did before. What 
has been confusing to me is that there are many people who 
think this language will encompass things that were previously 
never covered by the Clean Water Act, whether it is 
groundwater, whether it is roadside ditches or things of that 
nature. So it has been interesting hearing you and hearing, you 
know, what I have heard about it.
    I am wondering if you think there could be different 
language suggested to make sure it is doing exactly what you 
say but different from how people are interpreting it.
    We listened to the little exchange between you and 
Congressman Westmoreland where there was a lot of disagreement 
over what does that word actually mean, what exclusion and 
where is it? So I think that is part of what the public is 
dealing with and with what, I think, Congressman Baird just 
said, that the reason the public is so alarmed is because they 
do not feel the system is efficient, they do not feel the 
system is fair.
    There are multiple agencies and people who do everything 
exactly like they think it should be done, and a year later, 
you have someone at the EPA come back, and all of a sudden, 
they are in court; and now they have been in court for years 
and years. So the public does not feel they have been treated 
fairly.
    So while we are having this discussion, I am wondering--
because what I am hearing and what you are saying are two 
different things. So is there a problem in this bill that needs 
to be clarified, maybe, with language that is much more 
specific?
    Ms. Browner. I actually think this bill does exactly what 
Mr. Oberstar intends it to do, and I will be honest with you. 
To start adding a lot more language will only lead to confusion 
as opposed to resolving confusion. That is my opinion.
    Mrs. Drake. Well, one of the questions about it is that the 
Clean Water Act does not use the term "activities"; it uses 
"discharges," but this bill, the way it is currently drafted, 
does reference the regulation of activities.
    I mean, why is that? If it is just redefining, if it is the 
same thing, why wouldn't you use the same terminology that was 
used before?
    Ms. Browner. I would be happy to look at the section. I do 
not know which section you are in.
    Mrs. Drake. This is dealing with----
    Ms. Browner. Do you know what page?
    Mrs. Drake. Yes. I am not looking at the----
    Ms. Browner. I will be happy to look at it after the fact.
    Mrs. Drake. Yes. It deals with "activities" in the actual 
bill. So that is a question and a concern as to why it would be 
"activities."
    Then my last question is: Will there be any increased 
workload either to the Army Corps of Engineers or to the EPA 
under the language of this bill?
    Ms. Browner. I cannot speak to what the current 
administration will do.
    I will tell you, if I were at the EPA, this would not 
increase our workload. In fact, it would probably decrease the 
workload because you would have a level of predictability.
    The problem with Rapanos is, there is a level of 
uncertainty; and that is going to lead to more litigation, 
which obviously means more annoyance to the public, more delays 
to the public, but also more work for the Federal agency.
    Mrs. Drake. Okay. Thank you.
    Ms. Browner. Thank you.
    Mrs. Drake. I yield back, Madam Chairman.
    Ms. Johnson. Thank you very much.
    Mr. McNerney.
    Mr. McNerney. Thank you, Madam Chairman.
    Ms. Browner, I have heard significant feedback from 
constituent farms that the Oberstar bill will, in fact, 
negatively impact their day-to-day operations all the way to 
their saying, "If this law gets passed, we are going to have to 
close our farms down."
    Now, I would like you to address that concern in a way that 
would make them comfortable. Specifically, do the savings 
clauses in section 6 offer them some sort of protection or are 
there other provisions that would help out?
    Ms. Browner. All of the agricultural activities that are 
currently allowed under the Clean Water Act can continue; 
nothing in this changes. And whether those activities are being 
undertaken because there are exemptions in the regulations or 
because there have been interpretations of the underlying 
statute, nothing in this changes. The sections that the 
agricultural community relies on for their exemptions are not 
amended by this bill.
    You know, obviously having run the EPA for 8 years and 
having run a large State agency prior to that and having worked 
on the Hill as a staffer, this debate about wetland protection 
has gone on for a really, really long time in this country; and 
it is probably going to go on for a really long time.
    I want to be clear. This bill, Mr. Oberstar's bill, in my 
opinion, does not change the playing field. Everybody is going 
to be in just the same place as they were before in terms of 
what they can do, what is permissible and what needs a permit. 
Remember, there is always a permitting option that is 
available, but this is not changing. If you do not need a 
permit today, you are not going to need a permit after this 
passes.
    Mr. McNerney. Well, there must be some basis for their 
concern. Would you be able to address that or--I mean, they 
want an explanation.
    Ms. Browner. Well, I think there are--and I do not want to 
speak to your particular constituents. I do not know them. I 
can simply tell you, from my experience, there are 
organizations that have for the last 15, 20 years gone about 
changing how our wetlands and how our surface waters are 
protected and have gone about minimizing the protections, and I 
think some of that effort is caught up in this discussion, but 
as I said before, for individual parties, what they are allowed 
to do and what they need a permit to do does not change.
    Mr. McNerney. Okay. Thank you, Madam Chairman.
    Ms. Johnson. Thank you very much.
    I think Congresswoman Drake had a clarification.
    Mrs. Drake. I am sorry, Madam Chairman.
    Ms. Johnson. Did you have a clarification?
    Mrs. Drake. Yes, I did, and thank you very much.
    If you would, look at section 4 on page 8 and on line 14 
where it is defining waters of the United States, and on line 
14, it says "or activities affecting these waters."
    Ms. Browner. I have not found it yet. Hold on.
    Mrs. Drake. Section 4. Page 8. Line 14.
    Ms. Browner. Got it.
    Mrs. Drake. The question was because, in the Clean Water 
Act, it used "discharge," not "activities." so that was another 
question of what does that actually mean?
    Ms. Browner. I am happy to answer the question, but I need 
the current law in front of me. I need to understand what 
section you are referencing versus what section this is 
speaking to.
    No doubt, the Clean Water Act uses the word "discharge." 
this may not be amending the section that you are talking 
about. I cannot do this without all of the sections. I am happy 
to do it after the fact. If you want to send them to me, I will 
be happy to look at them, but the fact that the word 
"discharge" appears somewhere in the Clean Water Act and does 
not appear here----
    Mrs. Drake. Well, I think the difference is "activities" 
does not appear in the Clean Water Act, and in this it does; 
and so it is like--is this expanding the current, where you are 
saying it is not redefining, but that it is simply clarifying 
the definition?
    So, Madam Chairman, I think, if we could, let us submit 
that to her----
    Ms. Browner. I would be happy to look at it for you.
    Mrs. Drake. --and ask her to do that.
    Thank you, Madam Chairman.
    Ms. Johnson. Thank you.
    Congresswoman Fallin.
    Ms. Fallin. Thank you, Madam Chair.
    Thank you so much for being here today and for lending your 
expertise and tremendous background to this important topic. 
And I appreciate your comments about supporting cleaner water 
for the United States; I think we can all support that.
    And I think we have made some progress on your statement 
about permitting in the States being best left done by the 
States, and your concern that you stated that you support 
States' being able to permit whenever possible and whenever 
they have the systems in place that need to be there; and then, 
also, your express concern about any unfunded Federal mandates 
and the lack of money that might come with that when it comes 
to----
    Ms. Browner. Well, I actually did not say that, just to be 
clear. Really, I am not concerned about that.
    Ms. Fallin. Well, I am when it comes to----
    Ms. Browner. But States charge for permits.
    Ms. Fallin. Right. Right. Well, passing down things to 
States and then States' not having the money to do what the 
Federal law requires----
    Ms. Browner. But the States in the instance of the Clean 
Water Act ask for the permission. It is not just handed down to 
them. They seek it.
    Ms. Fallin. Right. Right.
    What I wanted to ask you was--you said you support 
permitting whenever possible. It has proven to be successful, 
and I agree with that, too. But I have been contacted by some 
major groups in my States, some that have authority over water 
in Oklahoma--some of the farmers, the ranchers, the ag 
community--who have expressed concern about the change of 
language in this piece of legislation from striking "navigable 
waters" to "waters of the United States."
    My industry leaders state that the EPA already has full 
jurisdictional rights, and they have been pretty much opposed 
to changing that language about the "navigable waters" to 
"waters of the United States" and believe that this would 
impose upon our States' rights. Some have said, in light of 
imposing upon the States' rights, that it could result in 
massive permitting delays on projects, that it could preempt 
State and local rights and that it also could cause some 
unfunded mandates.
    So, in light of your general support that States have the 
right to do the permitting and of making sure that States have 
the resources to uphold the Federal law and the permitting 
itself, when we talk about the language in this bill 
encompassing water that has never previously been subject to 
the Clean Water Act by permitting requirements, including the 
groundwater, the roadside ditches, the waste treatment ponds, 
prior converted croplands, ditches, drains, pipes that convey 
wastewater to sewage treatment plants----
    Ms. Browner. Can you refer me to the section of the bill 
that you are quoting----
    Ms. Fallin. Well, I am not quoting it. I am talking about--
--
    Ms. Browner. --just so I can read it? It would be really 
helpful.
    Ms. Fallin. I will get that for you. I am talking about the 
general summary of the bill that I am looking at.
    Ms. Browner. Oh, okay.
    Ms. Fallin. I am just talking about, conceptually, do you 
think it is necessary? To accomplish the goals of just having 
cleaner water and having a permitting process that works, could 
we just leave the language as "navigable waters" versus 
changing it to "waters of the United States" and accomplish the 
same goals?
    Ms. Browner. Well, a couple of things if you do not mind.
    I think a number of the activities you mentioned are not in 
the bill. I will go back and read it carefully, but I do not 
think they are in the bill, so I think we need to be careful 
about what is in the bill and what is not in the bill.
    I support what is in the bill. I believe, after a careful 
reading of this bill, that it is a reaffirmation of how the 
Clean Water Act has been interpreted through the better part of 
three decades.
    With respect to the States, I think if a State wants to 
take responsibility under the Federal law, as passed by 
Congress, to handle the permitting on a day-to-day basis, that 
is a good thing. Obviously, because they are exercising the 
Federal authority, not State authority, it is absolutely the 
responsibility of the EPA to ensure that that Federal authority 
granted by Congress to the EPA and now down to the State is 
handled accordingly.
    It is not an unfunded mandate. Not all States have sought 
the authority; some States have and some have not. It is an 
individual State decision. When they seek the authority, they 
generally attach a permit fee so that they can cover some parts 
of the costs associated. I think more States have actually 
sought the discharge permitting authority, the section 402 
authority, than the section 404 authority, but certainly some 
States have sought both of those.
    Ms. Fallin. I think the section I was asking about--and I 
do not have it in front of me right now, but the concerns I 
have had expressed, to me, are when you change the definition 
of the waters, that it could encompass those things that I 
mentioned before; and that is what I am hearing back from my 
community. Do you think it could?
    Ms. Browner. I do not. I do not think this bill suddenly 
will have the EPA and the Army Corps of Engineers regulating 
activities to protect our Nation's waters that they have not 
previously regulated. And all I can tell you is that, you know, 
I have read it.
    I have worked on the Hill for a number of years. I wrote a 
lot of laws; I got to interpret some of the laws I wrote as the 
Administrator of the EPA. You know, based on that experience--I 
am not a legislative scholar, but based on that real-world 
experience, I am very comfortable that this will not change the 
activities that EPA and the Corps have historically been 
engaged in.
    I do not know what they are doing today.
    Ms. Fallin. Well, I appreciate your telling me that because 
I would like to go back home and tell my folks that you have 
told me in the hearing that it will not cover those kinds of 
things. I think it is important to know.
    Ms. Browner. When you say "those kinds of things," what I 
am saying is things that are not currently--I do not know if 
those things are; I would have to go back and research each of 
them. Thank you.
    Ms. Fallin. Thank you.
    Ms. Johnson. Thank you very much.
    Congressman Carney.
    Mr. Carney. Thank you, Madam Chair.
    Ms. Browner, this horse is not quite dead yet. We have got 
one more beating on it here.
    What would be the implications of actually leaving the 
phrase "navigable waters" in the bill?
    Ms. Browner. Here is what I have to think about--and I will 
think about it, but let me tell you what I think has to be 
thought about.
    I will have to go back and look at two Supreme Court 
decisions to understand the word "navigable," but let us just 
use some common sense here, all right?
    Mr. Carney. That would be great.
    Ms. Browner. You know, for 35 years, as the EPA and the 
Corps were implementing this program either for wetland 
permitting--or let us not forget the discharges of pollutants. 
I mean, if we do not clarify things that could also be 
negatively affected--and we have done a really good job of 
getting that pollution that comes from point sources under 
control, and I think we want to stay there, and we want to 
continue to get even better about it.
    But, you know, it is not like the EPA was sitting around or 
the Army Corps was sitting around with a map and saying, "Well, 
a boat can fit on that, but a boat cannot fit on this, and 
therefore, we are not going to regulate this."
    They were saying, "When we look at the waters of the U.S., 
when we look at our major rivers, we have to also think about 
the tributaries to those rivers and about the streams to those 
tributaries if we are going to actually protect that waterway." 
and I know we keep going around and around, but it seems so 
commonsensical to me that if you are going to protect something 
that is down here, and there are bad things going on up here, 
you had better protect and regulate what is going on up here; 
otherwise, you are not going to have a lot left down here. 
Sorry.
    Mr. Carney. No. I appreciate common sense. It is a rare 
commodity around here. I am glad to have it.
    I am kind of on the same tone, though.
    Ms. Browner. You know, if you lived on a stream and you 
lived down at this end and somebody were doing something bad up 
here that was affecting your ability to swim down here, you 
would be really thankful that the EPA and the Army Corps of 
Engineers thought they should be able to regulate that thing up 
here.
    Mr. Carney. I am grateful to them anyway. Thank you very 
much.
    In your experience at the EPA, did you ever hear big 
influxes of complaints about the permitting process? I mean, 
were you getting feedback from the States that people were just 
up in arms?
    Ms. Browner. We heard directly from the people. We did not 
have to wait for the States.
    Of course. I mean, you run a permitting agency.
    Mr. Carney. Right.
    Ms. Browner. You know--I apologize if I said this while you 
were not here, but you know, a lot of times when you dug 
around, the problem was that the answer was "no," and somebody 
did not like it but not all of the time.
    I mean, look, the EPA has 18,000 people. You have got, you 
know, States of 1,000 people per agency or so. You can get some 
bad things going on, but a lot of times when you actually went 
digging, you found out that the real problem was that people 
did not like the answer.
    Mr. Carney. Boy, that makes sense.
    We have actually heard from other folks that Governor 
Schweitzer from Montana, for example, said that the folks 
actually liked the idea of a process where they knew what the 
process was; and the permits were there, and they had them in 
hand, and they could do what they wanted to do. I think that 
makes a lot of sense.
    Of course, we hear the same complaints in our offices when 
we vote "no," that we should have voted "yes," and when we vote 
"yes," that we should have voted "no." so I get that.
    Ms. Browner. There you go.
    Mr. Carney. I just want to thank you for your testimony. In 
fact, you bring a breath of fresh air to this whole process, 
and I want to work with you and continue to keep the waters of 
this country clean.
    Thank you very much.
    Ms. Johnson. Thank you very much.
    Mr. Duncan. Congressman Duncan.
    Mr. Duncan. Thank you, Madam Chairwoman.
    Ms. Browner, let me see if I can partially explain why 
there is so much concern on the part of farmers from California 
to Oklahoma and Virginia and people in Tennessee--not just 
farmers, but home builders to private landowners.
    I am told that, you know, when the Clean Water Act was 
passed in 1972 and then for several years thereafter, there 
were a great many disputes about prior converted cropland, so 
much so--so many across the country--that a Farm Bill in the 
mid-1980s put an exclusion in there.
    Now, this bill as it is presently written takes that 
exclusion back out, and potentially you are talking about 
thousands of farms and pieces of land that are going to be back 
covered again; and that uproar that occurred between 1972 and 
the mid-1980s is going to start back up again, and that is what 
is creating a lot of the concern.
    Then, too, you have got this from--I have heard this 
decision pronounced different ways, the "Rah-pan-ose" or the 
"Rap-ah-noes," whatever the pronunciation is. Mr. Rapanos moved 
a few dump truckloads of dirt a few hundred yards on a piece of 
property that he owned that was 54 acres. The decision says 
this was sometimes saturated soil. The nearest body of 
navigable water was 11 to 20 miles away.
    Then you go on over here, and it says, "The average 
applicant for an individual permit spends 788 days and $271,596 
in completing the process, and the average applicant for 
nationwide permits spends even more days and money."
    Now then, it goes on down further, and it talks about the 
immense expansion of Federal regulation of land use that has 
occurred under the Clean Water Act, and it says, "In the last 
three decades, the Corps and the Environmental Protection 
Agency have interpreted their jurisdiction over the waters of 
the United States to cover 270 million to 300 million acres of 
swampy lands in the U.S."
    Now----
    Ms. Browner. I am sorry. Is that from the opinion?
    Mr. Duncan. That is from the opinion.
    Ms. Browner. Okay, from Scalia.
    Mr. Duncan. That is from the opinion.
    What people are concerned about--I mean, I read this 
morning that where they are having the British Open golf 
tournament, they have got soggy fairways. What a lot of people 
are concerned about is that they think now we are going to see 
this big expanse.
    You see, when you make government so big and so 
bureaucratic, as we have done over these last many years, you 
go in and you require individual farmers to go through a 
permitting process that takes hundreds of days, on the average 
of 788 days, and $271,596, I mean you can wipe somebody out. 
And who you end up hurting in these deals is not the big, giant 
farmers or not the big, giant developers; who you hurt are the 
poor and those in the lower income and the working people and 
that small farmer and that small developer. That's who gets 
eaten up and chewed up and thrown out by all of this, and that 
is why you are seeing all of this concern about this already, 
even though we are just starting this process.
    And yet, I get the impression that you do not really 
believe that people should be so concerned about this.
    Ms. Browner. I think anytime there are abuses in a 
government, any government permitting program, that is cause 
for concern. I absolutely share that concern.
    I did a lot of things while I was at the EPA to try and 
address problems that I thought were genuine, including, for 
example, in the Superfund Program where small businesses were 
being, I thought, needlessly drawn into the Superfund net. We 
created a whole program to protect small businesses from the 
Superfund liability. So I do not want to--where there are 
legitimate concerns, they absolutely need to be addressed.
    With respect to the Rapanos situation, I do want to just 
remind everybody--I am sure you know, but it is just worth 
noting, once again, the Bush administration--the current Bush 
administration--took exactly the same position with the Supreme 
Court that I took, that Mr. Reilly took, that Mr. Train took, 
and that Mr. Costle took, all former EPA Administrators, so----
    Mr. Duncan. The Bush administration sometimes makes 
mistakes. Let me ask you this.
    Ms. Browner. I did not say that. I might have thought that.
    Mr. Duncan. Do you have any suggestions as to what we could 
do to this law that you said you have read thoroughly; do you 
have any suggestions or recommendations that you could make so 
that we could do something with this permitting process that 
would not make it take an average of 788 days and $271,000 for 
small people or small landowners?
    I mean, over 75 percent of the wetlands in this country are 
on private land.
    Ms. Browner. I think, in the short term, the single most 
important thing you can do is pass this legislation to clarify 
the ambiguities that have been created by SWANCC and Rapanos, 
and that will help mitigate some of the permitting problems 
that are going to arise. There are going to be permitting 
problems because of Rapanos; I strongly believe that. I think 
this is an important step to ensuring that those problems do 
not occur.
    Mr. Duncan. Well, if we pass this law, would you find it 
acceptable to exclude small farm operations or small landowners 
who cannot possibly afford these types of court challenges?
    Ms. Browner. This law is about protecting the Nation's 
waters. There will be times when small businesses and small 
farm owners have waters that need to be protected.
    Now, having said that----
    Mr. Duncan. You are protecting the big guys, not the little 
guys.
    Ms. Browner. No.
    Mr. Duncan. That is what it amounts to. You can say what 
you want to, but that is what it amounts to.
    Ms. Browner. I will speak for myself, thank you very much. 
I am not on the side of the big guys versus the little guys. I 
am on the side of making sure that we honor our Nation's laws 
and do it in a fair and commonsense way.
    The best way to do that, I believe, is to embrace this, to 
pass this. There are, no doubt, problems in the permitting 
system that will extend beyond the impact of Rapanos, and they 
can be addressed, but I do not think they need to be addressed 
in this law.
    Mr. Duncan. Thank you.
    Ms. Johnson. Thank you very much.
    I was just looking at some of the Corps of Engineers' 
opinions, and they think that 80-some percent of the permits 
can be done in under 60 days----
    Ms. Browner. Right.
    Ms. Johnson. --and a total of 61 percent have been done in 
under 120 days, so it might be that efficiency set in 
somewhere.
    Let me thank you so very much for being here today. It has 
been very helpful.
    Ms. Browner. Thank you.
    Ms. Johnson. We appreciate your spending your time.
    Ms. Browner. Thank you.
    Ms. Johnson. The second panel:
    Mr. Steve Moyer is the Vice President of Government Affairs 
and Volunteer Operations for Trout Unlimited in Arlington, 
Virginia;
    Mr. Joe Logan is the President of Ohio Farmers Union;
    Mr. Marcus Hall is the Public Works Director and County 
Engineer in Duluth, Minnesota, for the St. Louis County Public 
Works Department;
    Mr. Norman Semanko is the Executive Director and General 
Counsel of the Idaho Water Users Association, Inc. in Boise, 
Idaho, on behalf of the National Water Resources Association 
and the Family Farm Alliance; and
    Mr. Larry Forester is a City Councilman of Signal Hill, 
California, on behalf of the Coalition for Practical 
Regulation;
    Thank you very much for being here.

 STATEMENTS OF STEVE MOYER, VICE PRESIDENT, GOVERNMENT AFFAIRS 
     AND VOLUNTEER OPERATIONS, TROUT UNLIMITED; JOE LOGAN, 
  PRESIDENT, OHIO FARMERS UNION; MARCUS J. HALL, P.E., PUBLIC 
 WORKS DIRECTOR/COUNTY ENGINEER, ST. LOUIS COUNTY PUBLIC WORKS 
  DEPARTMENT, DULUTH, MINNESOTA; NORMAN M. SEMANKO, EXECUTIVE 
 DIRECTOR AND GENERAL COUNSEL, IDAHO WATER USERS ASSOCIATION, 
INC., ON BEHALF OF THE NATIONAL WATER RESOURCES ASSOCIATION AND 
 THE FAMILY FARM ALLIANCE; THE HONORABLE LARRY FORESTER, CITY 
              COUNCILMAN, SIGNAL HILL, CALIFORNIA

    Ms. Johnson. Mr. Moyer, you may begin your testimony.
    Mr. Moyer. Thank you, Madam Chairman. I really appreciate 
the opportunity to be here today and to participate in the 
hearing on this very important subject.
    Because of the two recent Supreme Court decisions and the 
Federal Government's flawed guidance in interpreting those 
decisions, the status of the Nation's waters under the 
jurisdiction of the Clean Water Act is threatened, shrinking 
and confused. If we, as a nation, are ever to have any prospect 
of achieving the Clean Water Act's most laudable goal to 
restore and maintain the chemical, physical and biological 
integrity of the Nation's waters, the situation needs to be 
rectified soon.
    T.U. supports the Clean Water Act and the Clean Water 
Restoration Act, H.R. 2421, as a critical step for restoring 
the historic scope of the act and the jurisdiction in placing 
the Nation back on track of achieving the goals of the act.
    T.U. is the Nation's largest cold water fisheries 
conservation group. We are dedicated to protecting and 
restoring the Nation's trout and salmon resources and the 
watersheds that they depend on. We have about 150,000 sportsmen 
and -women who are devoted to restoring trout and salmon. They 
devote a lot of time and energy to restoring the waters in 
their home waters and the fisheries that are there. We are not 
constitutional lawyers, though.
    T.U. staff and volunteers are not constitutional lawyers, 
but we think we know a good bit about restoring and maintaining 
the Nation's waters. We always view these waters from a 
watershed perspective. Water resources within a watershed are 
all connected from the top of the mountain down to the smallest 
headwater into the remotest wetland to the majestic rivers in 
the valleys to the coastal bays and to the oceans.
    One of the most valuable lessons that we have learned is 
that watershed restoration is impossible without maintaining 
the health of headwater streams; and that is my main plea for 
you to consider here today, the health of headwater streams. 
Headwater streams, especially the intermittent and ephemeral 
streams that are dry for parts of the year, are the "Rodney 
Dangerfields" of the aquatic world. They do not get enough 
respect, but they really do deserve respect because the best 
science we have tells us how extremely valuable these headwater 
streams are. They really are the "roots" of all of our 
watersheds, and if we damage or kill the roots, we damage the 
trees, the large rivers that flow through the valleys and towns 
and cities.
    The two Supreme Court decisions and the guidance that 
followed each have done a great deal of damage to put these 
headwaters at risk, and H.R. 2421 is the bill that is needed to 
be passed as soon as possible to fix this situation, and here 
is why. I have just a few points to highlight.
    The two decisions have really narrowed and confused the 
extent of the act's jurisdiction; and the plurality in Rapanos' 
decision, in particular, was especially unfriendly to small 
headwater streams. Secondly, the EPA and the Corps responded to 
each of these decisions with guidance that went even further 
than the decisions themselves in curtailing the Clean Water Act 
jurisdiction.
    In particular, on the Rapanos' guidance--on nonnavigable 
waters and wetlands, the Rapanos' guidance insists on a 
narrowly focused, case-by-case evaluation that promises to be 
both highly time-intensive and unnecessarily narrow. The waters 
that are most at risk from the Rapanos and SWANCC decisions are 
small headwater streams, as I mentioned, and other 
intermittently flowing streams and wetlands associated with 
such streams and geographically separated wetlands, like 
prairie potholes. Far from being isolated or remote, these 
waters are, in fact, the lifeblood of larger waters and some of 
the most vital waters to fish and to wildlife.
    These resources are vast. These headwater streams comprise 
a very large portion of a lot of watersheds, especially in the 
western United States, and these waters are very valuable. They 
perform a whole variety of functions. Of course, the ones most 
useful to us are producing trout and salmon, but they also have 
great pollution controlling functions.
    Also, then, you have to talk about activities. If you do 
not have geographic jurisdiction, then you do not have activity 
regulation; and we are very concerned about the loss of section 
404 and, potentially, the jeopardy of section 402, the point 
source discharge programs, because of the loss of geographic 
jurisdiction. T.U. members use these programs to make sure that 
development is done wisely and does not pollute or destroy 
aquatic resources.
    So, for those reasons, T.U. strongly supports H.R. 2421 and 
urges the Committee to pass it as soon as possible.
    Thanks for having me today to testify.
    Mr. McNerney. [Presiding] Thank you, Mr. Moyer. Thank you 
for your testimony and for attending here this afternoon.
    Mr. Logan, you are up next. Would you begin when you are 
ready.
    Mr. Logan. Thank you very much, Mr. Chairman and Members of 
the Committee. I appreciate the opportunity to be here today to 
testify.
    My name is Joe Logan. I am the President of the Ohio 
Farmers Union. I am a fifth-generation family farmer from 
northern Ohio, where I graze cattle, produce row crops. We make 
maple syrup, grow grapes, and produce wine. I am here today on 
behalf of the National Farmers Union, a general commodity farm 
organization that represents family farmers, ranchers, 
fishermen, and rural residents from across the country.
    The NFU recognizes that the purpose of the Clean Water Act 
is to provide clean water--clean, safe, usable water--for all 
of the citizens of the United States. At the same time, the act 
reminds us that preserving clean water is a shared 
responsibility to be borne equally by all who use, benefit from 
and rely upon a healthy and safe supply of water. The NFU 
believes that family farmers and ranchers have historically 
been the best soil and water conservationists when given the 
economic incentives and the flexibility.
    Two Supreme Court cases involving the Clean Water Act have 
resulted in considerable confusion among the Corps of 
Engineers, the EPA and those seeking to abide by the law. 
Bipartisan legislation introduced by the House and Senate is 
seeking to clarify that act. However, considerable confusion 
exists surrounding the intent of the proposed legislation, 
which I hope can be clarified here today.
    Our members spend the vast majority of their time on their 
farming and ranching operations, day-to-day. They have not 
experienced a drastic difference between the pre- and post-
SWANCC Supreme Court decisions. Some in the agricultural 
community have suggested that legislation introduced will 
expand the jurisdiction and scope of the original Clean Water 
Act and eliminate 32 years of regulatory precedent. It is my 
understanding that the legislation simply aims to clarify the 
responsibilities of the Corps of Engineers while, at the same 
time, it maintains the statutory and regulatory exemptions for 
agriculture; and I hope that the Chairman can clarify that 
intention to the agricultural community.
    It is important to keep in mind that although agriculture 
sometimes contributes to water pollution, the damage is uneven 
in scope and in severity. The highest vulnerabilities occur 
most often where farming is done at an industrial level. 
Therefore, blanket regulations are unwise and very hard to 
justify to the producers. Any legislation impacting the Clean 
Water Act must be clear enough for those in the agricultural 
community to be able to predict which lands and which waters 
will be covered.
    Farmers and ranchers have long acknowledged that clean, 
safe water is critical to the long-term success of their 
operations. What will help farmers and ranchers in the future 
is a less cumbersome and more expedient process when the 
agricultural community, the EPA and the Corps can come to a 
consensus about what problems do and do not need to be 
addressed and the most practicable way to address those 
challenges.
    As National Farmers Union members have demonstrated for 
generations, farmers, ranchers and fishermen are effective 
environmental stewards. Their astute understanding of natural 
resources deserves to be recognized and rewarded.
    With that, Mr. Chairman, I thank you again for the 
opportunity to testify. I would be happy to take any questions 
you might have. I thank the Members for their efforts in this 
regard.
    Mr. McNerney. Thank you for your testimony, Mr. Logan, and 
for working with family farms, which, I think, is an important 
part of our national heritage and, hopefully, our future, our 
Nation's future.
    Mr. Marcus Hall, representing the St. Louis County Public 
Works Department.
    We look forward to your testimony. You can begin when you 
are ready.
    Mr. Hall. Thank you.
    My name is Marcus Hall, and I am the Public Works Director 
with St. Louis County, Minnesota. I want to thank Chairman 
Oberstar and Ranking Member Mica and the Transportation and 
Infrastructure Committee for allowing me to testify today, and 
I hope to give you a glimpse of the national wetland issue from 
a county highway department perspective.
    St. Louis County is located in northeastern Minnesota and 
is a very large county. It extends from the most westerly tip 
of Lake Superior and goes north to the Canadian border. It is 
the largest county east of the Mississippi River, covering over 
7,000 square miles.
    Between the rivers, lakes, marshes, and swamps, over 35 
percent of our county is covered with wetlands. Covering this 
vast region is an extensive State and county transportation 
system. St. Louis County, itself, is responsible for over 3,000 
miles of roadway, and we have an annual highway construction 
budget between $25 million and $30 million.
    It typically takes 3 to 5 years to go from the conception 
of a highway construction project, through a public input 
phase, a preliminary design phase, an environmental permit 
phase, a final planned phase, the right-of-way acquisition and 
bidding phase just to get to a point where you can begin 
construction. During this whole time, our constituents are 
watching this process, and most of the time, they are shaking 
their heads, wondering why it is taking so long.
    Now, Minnesota recognizes the importance of wetlands to 
both our natural environment and economics. We adopted the 
Comprehensive Wetland Conservation Act in 1991, and in many 
cases, our State and local regulations are more restrictive 
than the Army Corps and PCA regulations.
    I believe that the recent Supreme Court decisions have 
thrown the Federal regulatory agencies into turmoil and both 
the EPA and the Army Corps of Engineers into a scramble on how 
to implement the new rulings. The latest Agency guidelines, 
dated June 5th of this year, are very complex. The typical 60-
to-120-day permit process has now slowed to a crawl. What the 
guidelines do is take a one-step process, consisting of 
applying for a permit, and turn it into a two-step process--
first, applying to review your project to see if it falls under 
their jurisdiction and then, two, applying for a permit.
    Mr. Hall. Our current best estimate is that this will add 
anywhere from 4 to 6 months to the process, more than doubling 
the current process time. And in Northern States, this will 
mean a delay of our projects for a full construction season. 
With construction inflation running between 4 and 7 percent, 
this represents an annual cost of between $1- and $2 million in 
delays for St. Louis County each year. Please remember that in 
the State of Minnesota, the local and State regulations and 
requirements are more restrictive than the Corps, so this delay 
comes with no increase in environmental protection for us.
    A typical St. Louis County reconstruction project is our 
County State Aid Highway 47 project. It is a 4.7-mile project 
that is scheduled for reconstruction in 2008. The current 
estimated value of the project is $4.5 million. And under the 
new guidelines, the two-step process, it is my understanding 
the Corps will have to perform a jurisdictional determination 
on each of the 36 separate individual wetland crossings that we 
have on that project. If this forces a delay in our project, it 
will cost St. Louis County between $200,000 and $300,000 for 
this one project.
    With numerous projects like this in the area, the local 
Army Corps of Engineers field personnel are currently 
overwhelmed by the amount of field work and paperwork that they 
are required to perform. I believe that the long-term solution 
to this issue is legislative action that clearly defines which 
wetlands falls under the Corps' jurisdiction, and eliminating 
this current first step of the two-step process.
    However, a short-term solution would be to allow the 
permittee to waive the analysis portion, and on an individual 
case-by-case basis concede the Corps' jurisdiction and move 
right to the permit phase. Needless to say, either solution is 
preferable to the guidelines, which are presently unworkable.
    In summary, I want to point out the county engineers 
understand the importance of our environment, and understand 
that our society has placed a great value on our wetlands. 
However, they have also placed a great value on a good 
transportation system, and it is up to us to balance these 
values and come up with a system and process that produces a 
great transportation system without harming our environment in 
the process.
    That concludes my oral statement, and I will be happy to 
answer any questions you may have. Thank you.
    Mr. McNerney. [presiding.] Well, thank you for that 
testimony and for the insight into the operations of your 
municipal system, and how the Clean Water Act and the--how 
important it is that the Clean Water Act be clear so that 
people can follow its rules.
    The next witness is Norm Semanko of the Idaho Water Users 
Association. Thank you for coming, Norm, and you can begin your 
testimony when you are ready.
    Mr. Semanko. Mr. Chairman, thank you very much. My name is 
Norm Semanko, and I am here representing the National Water 
Resources Association and the Family Farm Alliance. The Family 
Farm Alliance advocates for family farmers and ranchers in 17 
Western states. The National Water Resources Association is a 
collection of State associations that together represent the 
agricultural and municipal water providers that take very 
seriously their role in providing safe and reliable water 
supplies to their consumers and their customers.
    I would like to review with you three areas today in the 
brief time that we have.
    Number one is the history and the intent, this definition 
question with regard to waters of the United States.
    Second is the impacts this legislation, H.R. 2421, is 
likely to have on the Federal-State partnership that has 
existed over the last 35 years under the act.
    And then, third, I would like to talk about the impacts on 
water delivery providers, on our members.
    First, with regard to the definition of waters of the 
United States, trying to boil down what we heard here over the 
last hour and a half or so, there were three camps, three 
decisions really in the Rapanos decision.
    Number one, there were the folks that were able to get four 
votes, headed by Justice Scalia, that took the view that waters 
of the United States are the traditionally navigable waters, 
the ones that you can find the definition of in a dictionary or 
that you can look on a map and see blue lines. That got four 
votes.
    And then there were the folks represented by the prior 
panelist and other folks that advocated for an interpretation 
that all waters, interstate and intrastate, should all be 
covered by the Clean Water Act. The Federal Government should 
have jurisdiction over all of that. And if the State wants to 
have some jurisdiction, too, that is fine, but the Federal 
Government is always going to be there. That got four votes in 
the dissent.
    The middle vote was, of course, Justice Kennedy, which is 
widely considered the controlling opinion. And what he decided 
and what he said is that in addition to the traditionally 
navigable waters, you also have those waters that have a 
significant nexus to those navigable waters, those waters that 
actually have a physical, chemical, biological impact on the 
water quality. That is the real goal of the Clean Water Act.
    Now, the folks with Scalia and the folks with the dissent 
didn't agree with that. If the folks that were with Scalia did 
what the folks in the dissent did, you would have a bill before 
you today that, instead of saying "navigable waters," said 
those waters that are navigable in fact. In other words, they 
would want to have the jurisdiction under the Clean Water Act 
just be those blue lines on a map or those things that are 
defined as "waters" in the dictionary.
    That is not what happened. Instead what we have is the 
folks that lost on the dissenting side coming in with their 
argument as to what they believe waters of the United States 
should be, and that is the definition that is included in H.R. 
2421. It represents a tremendous expansion, no matter what has 
been said here today, with regard to the definition of waters 
of the United States. By including the language that all 
interstate and intrastate waters to the fullest extent, that 
those waters or their activities are subject to the legislative 
powers of Congress under the Constitution, that includes all 
waters in the United States.
    What does this do for the Federal-State relationship? Well, 
traditionally the States, under section 101(b) and 101(g) of 
the Clean Water Act and other Federal acts, have had a 
tremendously important role with regard to the waters in the 
United States. Whether they were under Federal control or not 
wasn't important. The States had control over their water. That 
would be upset.
    When you increase Federal jurisdiction, you are reducing, 
necessarily, the State jurisdiction. It is not enough to say 
that the States are delegated this responsibility by the 
Federal Government; that in essence they are given, if it's not 
paid for, an unfunded Federal mandate. It drastically upsets 
the delicate balance between the States and the Federal 
Government.
    Then, third, the impact on our water delivery folks. There 
is no doubt with regard to section 303 if you are a waters of 
the United States, then water quality standards apply. If you 
are not meeting the water quality standards, cleanup plans have 
to be developed. So all the canals, and the drains, and the 
laterals, and the stock ponds--and the list can go on and on--
they will all need to have TMDL plans developed. And the focus 
on the traditional waters of the United States that we have 
done such a good job of cleaning up will be lost.
    Under section 402, NPDES permits will be required in places 
they haven't been. Section 404, permits will be required for 
routine maintenance activities, and things that are done in 
canals and laterals now.
    Most importantly, the view of what the Clean Water Act will 
mean, what that jurisdiction means, isn't up to Carol Browner 
or to me or any of you. Any citizen can, with the cost of a 
stamp and a typewriter, put together a citizen lawsuit and file 
a lawsuit. Eighty percent of the enforcement actions under the 
Clean Water Act are brought by citizens, and they are able to 
convince a judge what the Clean Water Act means. And that is 
where you will have the encroachment and these vast 
interpretations under the act.
    I appreciate your time, and look forward to answering 
questions. Thank you.
    Mr. McNerney. Thank you, Mr. Semanko. That was very 
enlightening and precise testimony. Thank you very much.
    The next witness is Larry Forester from Signal Hill, 
California. And I look forward to your testimony. You can begin 
when you are ready.
    Mr. Forester. I have a PowerPoint. I opened with the title 
The "Unintended and Foreseeable Consequences of Extending the 
Clean Water Act--the Southern California Experience." We are 
living it.
    Honorable Chair and Members of the Committee, thank you for 
allowing me the opportunity to testify. Again, my name is Larry 
Forester, council member from the city of Signal Hill. Signal 
Hill is a member of the Coalition for Practical Regulation, 43 
cities of the 88 in L.A. County working to improve water 
quality. CPR testified before this Committee in 2003. And we 
are pleased that you are taking a retrospective look at the 
Clean Water Act. I believe I am qualified. I have a degree in 
civil engineering, and master's degree in ocean engineering, 
and with 9 years of local elected experience. To explore 
unintended and foreseeable consequences to local government by 
extending the Clean Water Act is my duty.
    CPR's testimony--let's see if I can work this--talks about 
what happened in Southern California, where we began to extend 
the Clean Water Act to public storm drains, isolated lakes, 
ponds, intermittent flood control channels. The problems in 
Southern California are now systemic, manifesting all Clean 
Water Act programs, from basin planning, NPDES permits, and 
Total Maximum Daily Load programs. Congress should see Southern 
California as a microcosm of the impractical, inflexible, 
unworkable, and costly approach which would be the result of 
expanding the Clean Water Act nationwide.
    Although well-intentioned, proposed legislation like H.R. 
2421 will have unintended and foreseeable consequences, 
requiring numeric Federal quality limits, including applying 
Federal toxic rules to local drains, gutters, ponds, reclaimed 
water, and drinking water reservoirs.
    A major consequence of extending the Clean Water Act will 
be to expose thousands of local governments to legal actions 
taken by third parties, as authorized by the Clean Water Act. 
Southern California is now the watershed of litigation. The 
majority of the litigation can be traced back to the imposition 
of Clean Water Act standards by regulators to what are clearly 
nonnavigable waters.
    My written testimony details examples of what I want to 
highlight. We will look at the San Diego permit. In 2001, the 
San Diego Regional Water Quality Board defined a municipal 
storm drain as waters of the United States. The entire storm 
drain system, starting at the curb, is regulated by the Clean 
Water Act. This permit has widely been copied by local 
regulators. The consequences are deeply troubling, since the 
Clean Water Act requires compliance at the point of discharge 
into the waters of the United States. This literally means 
compliance with the Clean Water Act at the driveway, house, or 
business.
    Constructed wetlands. Regional engineers have found that 
constructive wetlands will capture many of the pollutants in 
urban runoff. However, engineers have found that water within 
the constructed wetlands may not be capable of meeting Federal 
water quality standards. Proposed expansion of the Clean Water 
Act could preclude the use of constructed wetlands, since they 
are part of the drain system.
    Vertical box culverts. When I look at vertical box 
culverts, I am talking about channelized rivers. Engineers 
constructed hundreds of vertical, walled concrete-lined, box 
flood control channels in Southern California to deal with 
historic flooding beginning in the 1930's. With the adoption of 
the Clean Water Act in 1972, water quality standards have been 
attached to these culverts. Many were designated for swimming 
use, even though public access is restricted. These 
designations were made at a time when the regulators stated 
that the Federal standards were impractical to apply to urban 
runoff, and said local government had nothing to worry about.
    However, regulatory personnel changed over time, and so did 
the reach of the Clean Water Act. Regulators began requiring 
these channels meet recreational standards, but local 
governments protested, and the U.S. EPA regulators replied that 
the Clean Water Act required a Federal permit to approve or to 
remove impractical uses. There is a 4-year process to remove 
swimming from the L.A. River. There are hundreds of similar 
channels.
    Drinking water and reclaimed water. Many communities rely 
on above-ground storage of reclaimed water, for example, in 
small ponds and lakes. These ponds and lakes are isolated from 
rivers and oceans, yet many have designated habitat or other 
beneficial uses under the basin plan. The water quality 
objectives of these would require better water quality, a 
higher degree of treatment than for reclaimed water, absent 
these designations. Clearly, the application of the clean water 
standards to these reservoirs would require treatment with no 
tangible benefit.
    A similar contradiction exists when applying beneficial 
uses to drinking water reservoirs, several of which are 
uncovered and open to the environment. Although public access 
is denied, most of these reservoirs have been designated for 
potential recreational uses. As a result, they are regulated 
for uses that are not compatible with their actual function as 
closed water distribution systems. The applicable Clean Water 
Act standards of these reservoirs would create some illogical 
treatment, and especially the applicability of the toxic rule.
    In conclusion, our water board estimates the cost to local 
governments to comply with the metal TMDL of the Los Angeles 
River is $2.4 billion--"B" as in boy--dollars. This is just one 
of hundreds of TMDLs that must be adopted on dozens of water 
bodies in the region.
    Local governments in Southern California do not know how 
they are going to afford these regulations. Expanding the scope 
of the Clean Water Act will create a major Federal mandate. 
These examples are illustrative as you contemplate the scope of 
the Clean Water Act. Well-intentioned regulations can have 
unintended consequences. Many of these unintended consequences 
can be seen in advance. Hopefully, practical regulations and 
common sense can prevail.
    Thank you for the time, and I am sorry I went over a 
little.
    Mr. McNerney. Thank you for that testimony. That does shed 
some light on the concerns that you are facing in the 
municipalities, a different set of concerns.
    Unusual circumstances, so we are going to be called to a 
vote within the next 15 or 20 minutes. And it is expected to 
take an hour or so of voting, or maybe an hour and a half. So I 
am going to ask the panelists from the third panel, Mr. Yaich 
and Dr. Meyer to come forward and join the panel so that we 
will have the testimony before we start our questions and 
answers. And that way we can combine, and every one of the 
panelists will have an opportunity to speak this afternoon.
    So I would like to ask Mr. Yaich from Ducks Unlimited, 
Memphis, Tennessee, to take the stand and address this body. 
And I look forward to your discussion. And you can begin when 
you are ready.

   TESTIMONY OF DR. SCOTT C. YAICH, DIRECTOR OF CONSERVATION 
OPERATIONS, DUCKS UNLIMITED, INC., MEMPHIS, TENNESSEE; AND DR. 
 JUDITH L. MEYER, DISTINGUISHED RESEARCH PROFESSOR OF ECOLOGY 
        EMERITUS, UNIVERSITY OF GEORGIA, ATHENS, GEORGIA

    Mr. Yaich. Mr. Chairman, Members of the Committee, my name 
is Dr. Scott Yaich, and I am the Director of Conservation 
Operations at Ducks Unlimited's national headquarters. I 
appreciate the opportunity to speak today on behalf of Ducks 
Unlimited and our more than 1 million supporters, as well as 
Pheasants Forever, the Theodore Roosevelt Conservation 
Partnership, Wildlife Management Institute, and the Wildlife 
Society.
    DU's mission is to conserve, restore and manage wetlands 
and associated habitats for North America's waterfowl and for 
the benefits they provide other wildlife and the people who 
enjoy and value them.
    DU and our partners are science-based conservation 
organizations, so our perspectives on the Clean Water Act are 
grounded in wetland and water-related scientific disciplines, 
and I offer our comments today from that perspective.
    To ensure that we begin with a common understanding, it is 
worthwhile to state that from a scientific perspective, a 
wetland is an area that has hydric soils, is subject to being 
flooded for a portion of the growing season, or at least 
saturated, and supports or is capable of supporting wetland 
vegetation.
    Our written testimony provides much more detail, but I 
would like to emphasize five primary points this afternoon:
    The first is that of the original 221 million acres of 
wetlands in the U.S., over half have been lost. This has 
significantly affected the ability of the remaining wetlands 
and other waters to fulfill Federal and public interests. For 
example, the capability of the Nation's wetlands to support 
international waterfowl populations has been much reduced. I 
spent 17 years working in Arkansas, much of it in the Cache and 
White River Basins, historically among the most important 
wintering waterfowl habitats in North America. Arkansas has 
lost more than 80 percent of these wetlands, and the number of 
waterfowl coming to the region now are consequently much lower 
than they once were.
    My second point is that wetlands serve important ecological 
and societal functions, including providing habitat for 
waterfowl and other wildlife. Wetlands hold water and provide 
natural flood control during times of high rainfall, and 
subsequently slowly release it and help maintain base flows of 
streams and rivers. In Minnesota, for example, watersheds with 
higher percentages of wetlands and lakes have been shown to 
have lower levels of flooding. Wetlands recharge aquifers, such 
as the High Plains Aquifer, that provides water to eight 
States. Along the South Platte River in Colorado, 
geographically isolated wetlands provide water directly to the 
river via groundwater connections. The water from some wetlands 
takes 12 years or more to move from the wetlands to the river, 
but because of the certainty and predictability of these 
significant hydrologic nexuses, this water has real economic 
value that is being bought and sold as part of an interstate 
and Federal agreement.
    The negative side of these ubiquitous kinds of connections 
between geographically isolated wetlands and flowing waters, 
however, is that the water can transport pollutants. For 
example, there are a number of Superfund sites in one county in 
Michigan from which compounds such as polychlorinated biphenyls 
and heavy metals have leached from an isolated wetland into 
aquifers, private drinking wells, and ultimately to the Clinton 
River.
    A wealth of scientific studies and wetland systems across 
the country documents these hydrologic and ecologic linkages 
between wetlands and other waters. These studies support my 
third point, which is that virtually all wetlands, in 
combination with similar wetlands in a region, do possess 
significant nexuses with navigable and other waters and have a 
direct effect on their quantity and quality. In the Rapanos 
decision, Justice Kennedy gave a strong indication of the 
importance he placed on consideration of the aggregate impacts 
of wetland loss when he stated an example of the public 
purposes that should be served by the Clean Water Act was to 
address water quality issues such as the Gulf of Mexico's 
hypoxic zone. This problem can only be addressed by approaching 
it at a landscape scale, a piece at a time, including 
protecting or restoring some of the 60 million acres of 
wetlands in the Mississippi River watershed, whose loss has 
contributed significantly to the growth of the problem in the 
first place.
    The fourth point is that, as a result of the Supreme Court 
decisions and subsequent agency guidance being based upon 
something other than the best available wetland science, tens 
of millions of acres of wetlands across the country are now at 
significantly increased risk of being lost. Although Justice 
Kennedy's significant nexus test provides a science-based 
conceptual approach to wetland regulation, the nature of the 
nexuses between wetlands and navigable waters makes such a test 
virtually impossible to apply scientifically and efficiently 
within a regulatory context. We believe the effect will be 
decreased protection of wetlands and increased regulatory 
uncertainty, as well as increased administrative burdens and 
processing time required for permits.
    So my final point is that due to the nature and almost 
universal scope of the connection between wetlands and other 
waters of the U.S., fulfillment of the primary purposes of the 
Clean Water Act, which is to restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters, 
requires that the wetlands protections that existed prior to 
the SWANCC decision be restored. Legislation that clarifies 
that central point is the only apparent remedy for restoring 
the necessary Clean Water Act protections.
    Mr. Chairman, I thank you for the opportunity to present 
our views on this, and I will be happy to answer questions when 
the time comes.
    Mr. McNerney. Thank you, Mr. Yaich. I appreciate your 
testimony and your expertise.
    And next we are going to turn to Dr. Judith Meyer. I look 
forward to your testimony, and you can start when you are 
ready.
    Ms. Meyer. Thank you for inviting me to testify today, and 
for the opportunity to provide the Committee with the 
scientific evidence for the importance of headwater streams in 
maintaining the physical, chemical, and biological integrity of 
our Nation's waters.
    My name is Judy Meyer, and I have been a professor at the 
University of Georgia, and conducted research on headwater 
streams for three decades. The scientific evidence is clear 
that small streams must be protected if we are to reach the 
goals of the Clean Water Act. Rivers are networks whose 
navigable portions are inextricably linked with headwaters, 
just as our own circulatory system is dependent on the 
functioning of healthy capillaries. Reaffirming a broad 
definition of waters in the text of the Clean Water Act is 
critical to the goal of the Clean Water Act, which is 
maintaining the physical, chemical, and biological integrity of 
our Nation's waters. Longstanding and robust scientific 
evidence demonstrates that interdependence of small streams and 
navigable rivers.
    Today I am going to summarize four key points. But, 
recognize these points are supported by hundreds of peer-
reviewed scientific publications. References to this extensive 
scientific literature are included in my testimony submitted 
for the record, and also have been more completely summarized 
in the document "Where Rivers Are Born." These points have also 
been made in a letter to Chairman Oberstar and Ranking Member 
Mica from the North American Benthological Society, which is a 
scientific society whose members study rivers and streams.
    The first point on the critical importance of headwater 
streams is that they are ubiquitous. The smallest streams 
comprise the greatest number and length of channels in a river 
network. This is illustrated in this figure, which shows the 
percentage of stream miles in the smallest streams. The darkest 
colors are where small streams are over 59 percent of channel 
lengths, so that you can see in many parts of the U.S., well 
over half of the stream miles are in these smallest streams. 
Yet even this is an underestimate of the total length of small 
streams because of the scale of the maps.
    For example, standard topographic maps with the blue lines 
that were referred to earlier identify only 21 percent of the 
stream channel length in a North Carolina watershed. In 
addition, a sizable fraction of the channel length in a river 
network is in streams that do not flow permanently. This is 
shown in this figure. In this case, darker colors indicate 
where over 80 percent of the stream length is in intermittent 
channels. In arid States such as Arizona, 96 percent of stream 
miles do not flow continuously. Intermittent streams are also 
abundant and significant in States that get more rainfall. For 
example, intermittent streams in Michigan comprise 48 percent 
of the length of streams in that State.
    My second point: Headwater streams contribute to the 
physical integrity of the river network. Small streams are an 
important source of water for large rivers. Over half of the 
water in large rivers in the northeastern U.S. is delivered by 
headwater streams. Small streams hold and store water during 
storms and recharge groundwater. Where human activity has 
eliminated or degraded small streams, both the frequency and 
intensity of flooding increases downstream. In the face of 
global warming and increased threats of flooding, small streams 
will play an even more critical role in reducing flood damage.
    Small streams also retain sediments. If the storage is 
reduced, sediments are flushed downstream during storms. This 
reduces water quality and negatively impacts fish feeding, 
spawning, and overall stream health.
    Point number three. Tributaries are essential to the 
maintenance of the chemical integrity of navigable rivers. The 
basic chemical composition of unpolluted streams is largely 
established in their headwaters. For example, over 40 percent 
of the nitrogen that is found in navigable rivers in the 
northeastern U.S. originates in headwater streams. So 
therefore, pollutants and contaminants that are introduced into 
headwaters will make their way down to navigable waters.
    Small streams in the network are also the sites of the most 
active uptake, transformation, and retention of nutrients. When 
headwaters streams are eliminated or degraded, more of the 
nutrients that are being applied to lawns and farm fields are 
delivered to downstream lakes and estuaries. Nuisance algal 
blooms, low oxygen concentrations, and fish kills are potential 
consequences of these excess nutrients.
    My fourth and final point on the importance of headwaters 
is that they contribute to the biotic integrity of river 
networks. And they do this in three ways. They are the primary 
habitats of many aquatic and terrestrial species. My colleagues 
and I have found 290 taxa in tiny little streams in North 
Carolina.
    Secondly, headwaters provide spawning habitat, serve as 
nursery areas, and offer a refuge from threats such as 
predators and stressful temperatures. Species may use small 
streams only part of the year, but it is essential that those 
streams are present and accessible when needed. For example, 
brook trout in the Ford River in Michigan retreat to cooler 
headwaters in summer. In coastal streams in Oregon, young 
coho----
    Mr. McNerney. We were called to a vote, so if you could 
wrap this up.
    Ms. Meyer. I will. I am on my last point. Headwaters supply 
food resources to downstream and riparian ecosystems. Fishless 
headwater streams in Alaska export enough food to support 
hundreds of thousands young-of-the-year salmon in each mile of 
salmon-bearing streams.
    So in conclusion, decades of scientific research have shown 
that permanent and intermittent headwater streams are an 
integral part of a river network. They are not isolated. They 
provide ecological goods and services. Whether they have a 
direct hydrologic connection to a navigable river, these 
headwater streams have a direct impact on the physical, 
chemical, and biotic integrity of navigable waters. They have 
traditionally been protected by the Clean Water Act.
    Recent court decisions and agency guidance have not 
adequately incorporated scientific understanding that the 
entire river network requires protection. Legislation to 
reaffirm the original intent of the Clean Water Act is needed 
to reunite the law with the science. Thank you.
    Mr. McNerney. Thank you. That was very informative. 
Unfortunately, we had to cut that off.
    Mr. Gilchrest has been very patient. I would like to give 
him an opportunity to ask a couple of quick questions, and then 
I will ask Members of the Committee to submit questions in 
writing to the panel, and ask that the panel respond to those 
questions within 2 weeks.
    Mr. Gilchrest, would you like to begin?
    Mr. Gilchrest. Thank you. I thank the Chairman.
    I would like to ask three questions. And maybe since the 
panel is so large, and we have a vote pending, I could also get 
the response to these questions to the Committee.
    First question is which waters of the United States should 
be clean? And keep in mind physical, chemical, biological 
factors.
    Number two, how should we think about gravity and its 
relationship to water and the Clean Water Act, keeping in mind 
the nexus that Mr. Kennedy is talking about?
    And number three, does it matter whether or not human 
activity regarding the hydrologic cycle of water, and 
understanding its necessary services to us human beings, is 
important? Does it matter whether or not human activity 
regarding the hydrologic cycle is important?
    And I will yield back, Mr. Chairman. Thank you very much.
    Mr. McNerney. Thank you, Mr. Gilchrest. I don't know how to 
characterize those somewhat philosophical--certainly the 
deepest questions we have had here today.
    So I thank the panel very much for their expert testimony. 
It has been very interesting. As I mentioned in my questions of 
the first panel, a lot of my constituents are concerned about 
the impact of the Oberstar bill. So this has been helpful.
    Hopefully you will get some questions from the Committee, 
and you will be able to answer those within a 2-week period. At 
this point I would like to adjourn this hearing.
    [Whereupon, at 4:30 p.m., the Committee was adjourned.]
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