[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
THE THIRTY-FIFTH ANNIVERSARY
OF THE CLEAN WATER ACT:
SUCCESSES AND FUTURE CHALLENGES
=======================================================================
(110-81)
HEARING
BEFORE THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 18, 2007
__________
Printed for the use of the
Committee on Transportation and Infrastructure
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JAMES L. OBERSTAR, Minnesota, Chairman
NICK J. RAHALL, II, West Virginia, JOHN L. MICA, Florida
Vice Chair DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of JOHN J. DUNCAN, Jr., Tennessee
Columbia WAYNE T. GILCHREST, Maryland
JERROLD NADLER, New York VERNON J. EHLERS, Michigan
CORRINE BROWN, Florida STEVEN C. LaTOURETTE, Ohio
BOB FILNER, California RICHARD H. BAKER, Louisiana
EDDIE BERNICE JOHNSON, Texas FRANK A. LoBIONDO, New Jersey
GENE TAYLOR, Mississippi JERRY MORAN, Kansas
ELIJAH E. CUMMINGS, Maryland GARY G. MILLER, California
ELLEN O. TAUSCHER, California ROBIN HAYES, North Carolina
LEONARD L. BOSWELL, Iowa HENRY E. BROWN, Jr., South
TIM HOLDEN, Pennsylvania Carolina
BRIAN BAIRD, Washington TIMOTHY V. JOHNSON, Illinois
RICK LARSEN, Washington TODD RUSSELL PLATTS, Pennsylvania
MICHAEL E. CAPUANO, Massachusetts SAM GRAVES, Missouri
JULIA CARSON, Indiana BILL SHUSTER, Pennsylvania
TIMOTHY H. BISHOP, New York JOHN BOOZMAN, Arkansas
MICHAEL H. MICHAUD, Maine SHELLEY MOORE CAPITO, West
BRIAN HIGGINS, New York Virginia
RUSS CARNAHAN, Missouri JIM GERLACH, Pennsylvania
JOHN T. SALAZAR, Colorado MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois TED POE, Texas
DORIS O. MATSUI, California DAVID G. REICHERT, Washington
NICK LAMPSON, Texas CONNIE MACK, Florida
ZACHARY T. SPACE, Ohio JOHN R. `RANDY' KUHL, Jr., New
MAZIE K. HIRONO, Hawaii York
BRUCE L. BRALEY, Iowa LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania CHARLES W. BOUSTANY, Jr.,
TIMOTHY J. WALZ, Minnesota Louisiana
HEATH SHULER, North Carolina JEAN SCHMIDT, Ohio
MICHAEL A. ARCURI, New York CANDICE S. MILLER, Michigan
HARRY E. MITCHELL, Arizona THELMA D. DRAKE, Virginia
CHRISTOPHER P. CARNEY, Pennsylvania MARY FALLIN, Oklahoma
JOHN J. HALL, New York VERN BUCHANAN, Florida
STEVE KAGEN, Wisconsin
STEVE COHEN, Tennessee
JERRY McNERNEY, California
LAURA A. RICHARDSON, California
(ii)
CONTENTS
Page
Summary of Subject Matter........................................ v
TESTIMONY
Eichmiller, Linda, Executive Director, Association of State and
Interstate Water Pollution Control Administrators.............. 12
Grumbles, Hon. Benjamin H., Assistant Administrator for Office of
Water, United States Environmental Protection Agency........... 12
King, Jr., James, President, Dekalb Pipeline, on Behalf of
National Utility Contractors Association....................... 31
Lehner, Peter, Executive Director, Natural Resources Defense
Council........................................................ 31
MacBride, Derry, Chairman, Garden Clubs of America, National
Affairs and Legislation Committee.............................. 31
Novak, Hon. Kathleen M., Mayor, City of Northglenn, Colorado..... 12
Paap, Kevin, President, Minnesota Farm Bureau, on Behalf of
American Farm Bureau Federation................................ 31
Singleton, Mark, Executive Director, American Whitewater, on
Behalf of Outdoor Alliance..................................... 31
Westhoff, Christopher, Assistant City Attorney, Public Works,
General Counsel, City of Los Angeles, California, on Behalf of
National Association of Clean Water Agencies................... 31
Woodley, Jr., Hon. John Paul, Department of the Army, Assistant
Secretary of the Army for Civil Works.......................... 12
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Altmire, Hon. Jason, of Pennsylvania............................. 57
Carney, Hon. Christopher P., of Pennsylvania..................... 58
Cohen, Hon. Steve, of Tennessee.................................. 62
Costello, Hon. Jerry F., of Illinois............................. 63
Mitchell, Hon. Harry E., of Arizona.............................. 66
Walz, Hon. Timothy J., of Minnesota.............................. 69
Young, Hon. Don, of Alaska....................................... 71
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Eichmiller, Linda................................................ 72
Grumbles, Hon. Benjamin H........................................ 75
King, James...................................................... 151
Lehner, Peter.................................................... 157
MacBride, Derry.................................................. 181
Novak, Hon. Kathleen............................................. 184
Paap, Kevin...................................................... 188
Singleton, Mark.................................................. 193
Westhoff, Christopher M.......................................... 202
Woodley, Jr., Hon. John Paul..................................... 237
SUBMISSIONS FOR THE RECORD
Grumbles, Hon. Benjamin H., Assistant Administrator for Office of
Water, United States Environmental Protection Agency,
``Conserving America's Wetlands 2007: Three Years of Progress
Impementing the President's Goal,'' Council on Environmental
Quality, April 2007............................................ 89
Westhoff, Christopher, Assistant City Attorney, Public Works,
General Counsel, City of Los Angeles, California, on Behalf of
National Association of Clean Water Agencies, ``Recommendations
for a Viable and Vital 21st Century Clean Water Policy,'' NACWA
Strategic Watershed Task Force, October 18, 2007............... 212
ADDITIONS TO THE RECORD
American Council of Engineering Companies, written statement..... 247
American Road and Transportation Builders Association, written
statement...................................................... 250
American Society of Civil Engineers, written statement........... 259
Texas Institute for Applied Environmental Research, Ron Jones,
Director, written statement.................................... 266
Waters Advocacy Coalition, written statement..................... 272
The Western Coalition of Arid States, written statement.......... 279
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HEARING ON THE 35TH ANNIVERSARY OF THE CLEAN WATER ACT: SUCCESSES AND
FUTURE CHALLENGES
----------
Thursday, October 18, 2007
House of Representatives
Committee on Transportation and Infrastructure,
Washington, DC.
The Committee met, pursuant to call, at 10:50 a.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.
Before we undertake the hearing, there is a short business
session we need to attend to, and that is to appoint the
gentlewoman from California, Ms. Richardson, to Subcommittees.
I ask unanimous consent to appoint Ms. Richardson to three
existing majority vacancies on the following three
Subcommittees, those that were held by her predecessor, Ms.
Millender-McDonald: the Subcommittee on Aviation, the
Subcommittee on Coast Guard and Maritime Transportation, and
the Subcommittee on Highways and Transit.
In pursuance of this, I circulated a letter among the
Members on the majority side, asking their concurrence or their
questions or concerns, and we had a complete consensus of
support for this initiative; and, if there is no objection, it
is so ordered.
The purpose of today's meeting is to celebrate, by looking
back and looking forward, on the 35th anniversary of the Clean
Water Act, to take stock on our how environmental initiatives
have unfolded in the years since that legislation was enacted
in 1972, and also to remind ourselves of the task that lies
ahead. The job of legislation is never complete. We must always
be engaged in the process, not only of fashioning the
legislation, holding the hearings, of moving legislation,
conference with the other body, signature by the President or,
in the case of the Clean Water Act, overriding a veto, and then
overseeing the implementation of that legislation. That is an
unending journey.
And beginning this process, I just take recognition of,
acknowledgment of my predecessor, whose portrait hangs in the
corner of this room, John Blatnik, who was elected in 1946 in a
class, if you will, that was post-World War II, the first
election to Congress following World War II, in a class that
included John F. Kennedy and Richard Nixon, as well as Robert
M. Jones, Bob Jones of Alabama, Democrat, along with John
Blatnik and, I think, 40 or so new Members of Congress.
It is intriguing that both Nixon and Kennedy went on to be
president of the United States and John Blatnik, who served
behind Nazi lines in what is today Slovenia, rescuing American
airmen shot down on the return bombing runs from Ploiesti oil
fields of Romania, spent 18 months living in barns, haystacks,
and recovering mostly American airmen, but also British, came
home and then ran for Congress. He had served in the State
Senate. He was a microbiologist, and in 1955 he became Chairman
of the Subcommittee on Rivers and Harbors, a Subcommittee on
which I started my service in the Congress in 1963 as a clerk
on the Subcommittee on Rivers and Harbors, the oldest Committee
of the Congress.
And in pursuance of his new role as Subcommittee Chairman,
he engaged the Corps of Engineers to make an excursion down the
Mississippi River and the Ohio and Illinois River systems to
observe the works of the Corps and the needs of navigation and
the responsibilities that would lie ahead of him and of this
Committee. And while they observed navigation, they saw the
locks and they saw the need for improvements, what caught John
Blatnik's attention was the discharges of pollutants, of the
debris of the jetsam and flotsam moving down the Ohio and the
Illinois and the Mississippi, all converging the waste and the
discharges from 11 States by the time they reached New Orleans.
He said, at that point there were raw phenols bubbling in the
waters and that each State they passed, the condition of the
river, the condition of the water became worse. He resolved
that. Whatever else that was needed to be done by this
Committee, cleaning the Nation's water had to be the
Subcommittee's top priority.
So he fashioned, with Bob Jones from Alabama, an idea for a
three-part program: one, research and development. As a
scientist, he placed high store on gathering fact and
understanding what would be the limiting factors, what
elements, if you take them out of the waste stream, if you
remove them from the receiving waters, would restore water
quality. What are the factors that would limit growth of algae-
producing, oxygen-depriving elements in the waterways and the
lakes and the estuaries? And the second was help for
communities to build sewage treatment facilities, to treat the
wastes before they get in to the receiving stream. The third
was an enforcement program to bring States together to
agreement on enforcement measures for municipalities and
industries.
And it was such a novel idea, John Blatnik thought that
this would be something that everybody would want to join in,
and he reserved the caucus room of the Cannon House Office
Building. There were only two office buildings then, Longworth
and Cannon, which was the first built. It can seat 600 people
and he thought, surely, there would be great interest in such a
cause, and sent out what we call today a Dear Colleague letter,
which was unusual in those dates. Rarely did one make such
broad appeals.
And on the day they sat for the meeting, he arrived and
there were three people: John Blatnik, Congressman Bob Jones,
and Murray Stein, an attorney in the U.S. Public Health
Service, whose office, as Blatnik said, was in the seventh sub-
basement of HEW, but he was concerned about water quality. And
together the three of them fashioned these ideas into a
legislative initiative which was introduced in early 1956,
passed the House, the Senate, signed by President Eisenhower,
providing $30 million in Federal grants, 30 percent Federal
participation to help municipalities build sewage treatment
facilities.
Time passed, and in the ensuing three years it was clear
that much more was needed; clear that we needed a broader
program; clear that you had to go into the watersheds and to
deal with the sources of pollution; and that much more money
was needed. So Blatnik introduced a second bill to expand the
funding from $30 million to $50 million, with still 30 percent
Federal grant; stronger enforcement and more money for
research.
That bill was vetoed by President Eisenhower, with a veto
message that read, in its last line: pollution is a uniquely
local blight. Federal involvement will only impede local
efforts at cleanup.
But that was an election year and John F. Kennedy was
pledging to invest substantially in cleanup of the Nation's
waters, and one of his first acts in 1961 was to increase
funding to $100 million--a vast sum in those days--and 50
percent Federal grants, and a stronger research and a stronger
enforcement program; and that passed the Congress and was
signed by the President.
Lyndon Johnson further expanded funding, coming up to $1
billion in Federal grants by the mid-1960s. But what galvanized
the Nation then in the Johnson White House was that, now,
mounds of suds were floating down the Ohio River system. People
in various parts of the Country turned on their faucets and
found soap suds instead of water coming out.
Then, in 1968, the Cuyahoga River caught on fire, with
headlines and photos all across the Nation that said we must do
something more significant, and that launched a series of
hearings. By that time, I was chief of staff of the Committee
on Public Works. We had extensive hearings over the period of a
year; moved a bill through the House that vastly expanded,
substantially increased construction grants, established
laboratories for research, saltwater laboratory in Rhode
Island, a freshwater laboratory that eventually was established
on the shores of Lake Superior, five regional laboratories to
conduct further research; much stronger enforcement programs.
Then we entered in conference with the Senate; 10 months of
conference. Some of them here in this very room; others in the
Capitol; some in the Senate office buildings. One thing that
was clear to all conferees----
And those were the days when Mr. Chairman Young, we
actually met. I remember your frustration as Chair of the
Committee. You would go to meetings and you wouldn't see
Senators, and they would send emissaries. I am sure Mr. Mica
has had that same experience during his Chairmanship of the
Aviation Subcommittee.
Members actually came, debated with each other, and staff
met in between; vigorous, heart-felt debates and discussions.
But one thing that was a clear consensus was that the nature of
the program needed to focus on the waters of the United States,
not just on navigable waters, from which the Committee
initially derived its authority; that watersheds were critical
to maintaining the quality of our water, that you had to reach
in to the very beginning of the stream in order to be able to
maintain water quality.
The opening paragraph, the defining paragraph of the Clean
Water Act reads: The purpose of this Act--the purpose of this
Act, defining the terms for it--is to establish and maintain
the chemical, physical, and biological integrity of the
Nation's waters. That conference report was sent to President
Nixon, who vetoed it, and the Congress overrode that veto by a
10 to 1 vote in the House, and a considerable margin in the
Senate. And it has been our basic act, our basic law that has
improved the quality of the Nation's waters. The goal was to
have fishable, swimmable, body contact sport quality water
throughout the United States.
There are 135 benchmarks set in that legislation. Not a one
of them was met in the time frame envisioned. But, eventually,
we got to something like 60 percent, 65 percent of the Nation's
waters cleaned up. That leaves a third still, yet to be
addressed, and that remains our goal, remains our challenge,
remains an objective. This Clean Water Act addressed this
extraordinary issue of fresh water for all.
You know, we send missions to Mars, to Saturn, to the
asteroid belt, with sophisticated spaceships looking for water.
Landed one of those on a large asteroid with a probe that was
looking for water, water elsewhere in the universe, water that
is the source of life. We need to spend as much time and energy
and effort here on earth, even more, than we are in
interplanetary missions, because all the water that ever was or
ever will be is on the earth now, and it is our responsibility
to care for it.
Mr. Mica, thank you for being here with us, our Ranking
Member.
Mr. Mica. Thank you. If I may, Mr. Chairman, I would like
to yield to our former Chairman, who has another obligation,
and I will get my remarks.
Mr. Young. Thank you, Mr. Chairman. Thank you, Mr.
Chairman. I deeply appreciate this hearing and I agree with
everything the Chairman said in the sense that we have made
great progress, but we can make more.
My only advice, as we go through this review of how the
Clean Water Act, we also have to see how it has been used
against clean water itself. Primarily, I am referring to
lawsuits by different groups that filed suits, I think,
maliciously, trying to subvert the action of the Act itself, as
we did pass it and which I voted for. I really believe that we
have a responsibility to make sure we achieve our goals of
clean water and, yet, also protect our ability for cities and
other communities to function, especially our smaller
communities.
What I am speaking of primarily is never intended to act on
the arsenic quality or quantity in the water that is naturally
in there, and you have a small community maybe of 500 people
who put in a fine well, et cetera. Now they are required to
treat the readers to a certain level that is prohibitive, it is
impossible, and what we end up with is people going back to
wells. There is no law against having your own well and
drinking arsenic. There is a law, if you have a municipality,
under the Clean Water Act, that they have to reach a certain
standard.
So I think we have to review what has been done. One of the
proud things I have is the Potomac River. When you first came
down and I first came down, it was a mess. It is now one of the
finer fishing streams in the United States. That has been
achieved during our time of tenure. So I think we have made the
great progress.
You mentioned Ohio and the fire that went on. That was John
Seiberling's battle and now it is a clean river.
So we go forward, but let's, as we go forward, review what
has been accomplished, and can we improve and still achieve
portable water for the smaller communities in this Nation.
I thank the gentleman.
Mr. Mica. Thank you.
Reclaiming my time, if I may, let me just thank Mr. Young.
We appreciated hearing his comments. He does have obligations
as the Ranking Member of another Full Committee.
First, a couple of items, Mr. Chairman. From our side of
the aisle, we want to welcome Laura Richardson.
I don't know if you were here when you were welcomed by the
Chairman, but we are all delighted to have you. Congratulations
on your election. As I mentioned to you, I knew your
predecessor very well, many of us did, and worked with her. I
have been out in your district and hope to get back and help
you on the projects that are important to your area in Southern
California; in fact, was there last weekend. God help you, it
is something else. But we do welcome you and congratulations on
your new assignments.
One other item of business, Mr. Chairman. I ask unanimous
consent, I have a group of Water Advocacy Coalition and
American Roadbuilders Transportation, American Council of
Engineering Companies, American Society for Civil Engineers. We
ask these and other statements be included in this important
hearing.
Mr. Oberstar. Without objection, so ordered.
Mr. Mica. Okay.
I don't have the depth of history that Mr. Oberstar has. I
guess he worked as a staffer when some of this was being done.
Mr. Oberstar. All of it.
Mr. Mica. It is good to see something he wasn't a Member
that he wrote the damn thing, but he was here as a staffer, as
I was, but I wasn't involved in this at all. In fact, my boss,
who was the Ranking Member, got defeated when he ran for the
Senate and we were all out of a job, that is another story.
I was telling Mr. Cummings it is nice to be here with Mr.
Oberstar. I feel like I have a second marriage to him. You
know, yesterday we had some disagreements, but together we
moved a product forward, rail safety, which was something that
he wanted to do. We had some disagreements, but today is a new
day, so we wake up and we are at it again, trying to improve
our Nation's water today. So sort of like a marriage. The nice
thing about this marriage is I don't have to say yes, dear, as
much.
[Laughter.]
Mr. Oberstar. You can say it more often.
Mr. Mica. Well, sorry, dear.
[Laughter.]
Mr. Mica. But, in any event, our intent today is to review
the history, again, and some of the successes and some of the
problems we still incur with the adoption of a law that took
place some 35 years ago. There are many successes we can point
to; you have heard some of them. In 1972, only two-thirds of
the waters were estimated at that water quality standard. A few
decades ago, wetlands were being lost at an alarming rate and
some of the reports we have that we are actually gaining
wetlands--and I want to talk about that in a second.
But we have to continue this record of success, and there
are some challenges ahead, for example, we have an aging
wastewater infrastructure and some of our water treatment,
water quality programs. And if everyone will recall, those are
some of the first bills that we did in this Committee in a
bipartisan effort, and WRDA will be another bill that may also
require the override of a presidential veto. But we made a firm
commitment to having the resources we needed, and some of those
are long overdue. So we have had some successes.
It is important, too, that the Federal Government--we have
to look at this. The Federal Government can't do everything in
this effort; we have got to call on the States, and several
States have taken some very significant programs for funding
wastewater and infrastructure and other clean water projects.
Some States have approved special bonds to assist local
communities. I want to cite the State of Maryland, which
established the Chesapeake and Atlantic Bays Coastal
Restoration Fund. I think this has to be a true partnership of
State, local, and the Federal Government, and also the private
sector.
So I think as we approach any future changes--and this
hearing today, while it is a review, it is also a prelude to
possible future changes. One of the things we have to be
cautious about--and Mr. Young spoke about them--is over-jealous
regulators and sometimes regulations that don't make sense, and
the arsenic that occurs naturally in water, as Mr. Young cited,
is a great example, just making sense and not putting burdens
and actually putting people in a position where they are
subject to some alternative that will not give them what we
want, and that is clean water.
The geographic extent of jurisdiction of the Clean Water
Act has been a topic of much debate and significant Supreme
Court decisions in recent years. Some are concerned that the
recent Supreme Court decisions have weakened the Clean Water
Act; others have applauded the same Supreme Court decisions as
an appropriate step towards a reasonable and constitutional
Federal regulation. At a Committee hearing earlier this year,
the Governor of Montana told us that his State did not want the
long arm of the Federal Government imposing regulations that
would threaten the livelihoods of farmers, ranchers, and
miners. He asked that the Federal Government be a partner and
collaborator with States in a joint effort to protect water
resources. However, some do want to expand the jurisdiction to
federalize all waters around the Nation, and there are bills
that will redefine wetlands that are pending in Congress.
Unfortunately, we can sometimes, through some of these
solutions, create even greater problems. We have had 35 years
of jurisprudence related to the Clean Water Act, which has
served to refine and clarify the law. I think we have to be
very cautious that, as we make any redefinition of wetlands,
that we don't upset the apple cart and end up in more lawsuits,
more regulation, more dispute. In fact, that we don't open a
Pandora's box filled with unintended consequences. That would
be one of the cautionary things.
In fact, when I was in Orange County this weekend, in
California, one of the main questions I got is what are you
going to do with the wetlands redefinition, and they cautioned
me about some of the pending legislation. So I urge careful
consideration and moderation in any efforts that we undertake,
and I look forward to making reasonable improvements, but not
those that get us all bound up and not going in the right
direction.
So with those comments, I am pleased to yield back.
Mr. Oberstar. I thank the distinguished gentleman for his
observations and welcome the partnership as we go forward with
further legislation on the Clean Water Act to simplify the
permitting process, to streamline it, to remove obstacles that
have frustrated landowners, restore and maintain the
agricultural exemptions of the Clean Water Act itself, and not
redefine wetlands, but retain in place the 35 years of
jurisprudence that the gentleman referred to, and to observe
the concern of Governor Schweitzer, who cautioned about the
long arm of Washington, but also, in the end, supported the
Clean Water Restoration Act.
I would like to jump over seniority at this moment and
invite our newest Member of the Committee, Ms. Richardson, to
make comments at this point.
Ms. Richardson. Thank you, Mr. Chairman. First of all,
please excuse my delay. I was cheering in Niki Tsongas, who is
now the newest Member of Congress, and in five weeks I have
already gained seniority. So I was there cheering her on.
Mr. Oberstar. Stick around; it gets better.
[Laughter.]
Ms. Richardson. I am counting on it.
Mr. Chairman, I appreciate both you, Ranking Member Mica,
and the other Members of the Transportation and Infrastructure
Committee for welcoming me. I share your commitment in
understanding that, really, although a lot of people don't get
it, transportation, to me, is the key issue that is facing us
here in the United States, and we have a firm responsibility to
handle legislation in a very positive and a forthright way so
we can make the progress desperately needed that I believe
Americans are looking for.
Finally, Mr. Chairman, I acknowledge your legendary history
and knowledge. I look forward to learning from you. And I also
hope that the expertise that I bring to the table will be of
value to this Committee. So thank you for welcoming me, and I
don't mind being a part of the marriage, and I gladly will say
yes, dear. Thank you.
[Laughter.]
Mr. Oberstar. Thank you. Thank you. We welcome you to the
Committee.
[Applause.]
Mr. Oberstar. The Ranking Member of the Water Subcommittee,
Mr. Baker, distinguished gentleman from Louisiana.
Mr. Baker. Thank you, Mr. Chairman. I appreciate the
opportunity to speak briefly on the important matter before the
Committee today and acknowledge your great contributions to
this effort, and certainly that of our Ranking Member, Mr.
Mica.
I share many of Mr. Mica's views and statements on the
matter. I am excited and eager to pursue a goal which would
result in streamlining of the regulatory process to bring about
a format that would give some rational certainty to the
permitting necessary to comply with the Act, and not also make
statutory 35 years of judicial findings which I believe the
unresolved question, when we make those statutory statements,
is the historic view of what the courts have said.
In my opinion, waters of the United States will be found a
little more narrowly in scope than perhaps others might choose
to decide, but I look forward to a discussion on the scope of
the authority. And, perhaps most importantly, the appropriate
exercise of authority to not impair logical and rational
development, while ensuring that the quality of water in the
United States is not deteriorated by those who are
irresponsible. And to that end, Mr. Chairman, I look forward to
working with you.
Mr. Oberstar. Thank you very much. The gentleman from
Louisiana is a very thoughtful, scholarly, and diligent Member
of the Committee, and we look forward to vigorous
participation.
Mr. Space.
Mr. Space. Thank you, Mr. Chairman. I would just like to
express my gratitude to you for your continued leadership, as
well as that of Ranking Member Mica, and I look forward to
moving forward in the spirit of the Clean Water Act and
wonderful things it has done for my district back in
Southeastern Ohio, the home of the Tuscarawas, Muskingum, and
Hocking Rivers, some of the most scenic sights on earth,
particularly at this time of year. Again, thank you for your
leadership.
Mr. Oberstar. I thank the gentleman.
Mr. Boozman.
Mr. Westmoreland.
Mr. Westmoreland. Thank you, Mr. Chairman. Before I do, I
would like to introduce one of the panelists for the second
panel, if I might.
Mr. Oberstar. The gentleman is recognized.
Mr. Westmoreland. I am honored to acknowledge one of the
panelists for the second panel, Mr. James King, the President
of the Dekalb Pipeline Company of Conyers, Georgia. Mr. King
was also elected President of the National Utility Contractors
Association in February, and this year Mr. King has served on
the Administrative Board of National Utility Contractors
Association since 2003, and as President of the Association he
represents over 1700 members nationally. Mr. King's Georgia
company, Dekalb Pipeline, was started by his father in 1960 and
has been a thriving business every since. Dekalb Pipeline has
been honored with several awards, including one for its
outstanding commitment to employee safety.
As a Georgian, I am very appreciative of Mr. King's
dedication to the construction at the local and the national
level, and I want to thank him for coming today, and I am
looking forward to his testimony regarding the Clean Water Act
and its affect on our Nation's water infrastructure.
Now, if I could, Mr. Chairman, have my opening statement.
Mr. Chairman, I want to thank you and Mr. Mica, both, for
working together on this very important issue of clean water.
But I want to address several members of the panel, if I could,
Mr. Woodley and Mr. Grumbles, because, to have clean water, you
have to have water. And I know the Chairman mentioned satellite
efforts on different planets and on this planet to try to find
water, and, Mr. Chairman, I will tell you, if you are looking
for water, don't fly over Lake Lanier or West Point Lake,
because there is none.
Georgia is in a drought crisis. We, as a congressional
delegation, and our governor has been enquiring with the Corps
and with the EPA about helping us resolve this problem. We are
releasing more water out of Lake Lanier and West Point than is
going in. Atlanta is down to an 80 day water supply. This water
is being released to help the muscles and the sturgeon. We feel
like that clean water is very important, but, in order to have
clean water, you must have water. Lake Lanier is down 13 feet
and is falling 6 inches a day. There was more water released
from Lake Lanier last Monday than has been released since June
of 2006. This is totally unacceptable.
I read your comments about clean water but they, to me, do
not have any credence because I think, first, we have got to
make sure that the citizens--and especially of Georgia--have
water to have clean water. West Point Lake is at the level of
621. 619 is mud flats. The water is already below the intakes
of many people that take water out of West Point. This is
inexcusable from the Corps. We have an interim operating plan
from Fish and Wildlife that the Corps has refused to go and get
amended so we will not have to release the amount of water
downstream that we are having.
So, Mr. Chairman, while I appreciate very much the fact
that we are having this hearing on clean water, and everyone
wants clean water, but people also want to have water, and in
order for us to maintain being able to have consumption in the
State of Georgia, we have got to have some relief from the
Corps, from EPA, and from Fish and Wildlife. And, Mr. Chairman,
I am going to ask you and Mr. Mica, if you would, to look into
this, to join us in our efforts to make sure that the people of
Georgia have water during this drought. And, Mr. Chairman, if I
am not badly mistaken, there is something in the Endangered
Species Act that says in a time of drought, that the Corps can
intervene to make sure that people have drinking water.
So with that opening statement, I just want to make sure
that people understand that while Mr. Grumbles and Mr. Woodley
here are testifying about clean water, they need to be
testifying about why they are prohibiting or maybe going to
force people to go without drinking water, and rather than
having soap suds come out of your pipe, we are probably going
to have mud. So clean water is a great priority, but water
first.
Thank you, Mr. Chairman.
Mr. Oberstar. I thank the gentleman. I look forward to
working with him one-on-one and with Mr. Mica, if he wishes to
participate, with the Corps and with other entities to help the
gentleman and his constituents achieve the water they need.
Thank you.
Ms. Matsui.
Ms. Matsui. Thank you, Mr. Chairman, and thank you very
much for holding this hearing. It is important that we take a
time like this, the 35th anniversary of the Clean Water Act, to
take a look at where we are with this important and
increasingly complex issue. We do have success to tout, as the
Chairman mentioned. In 1969, the Cuyahoga River in Cleveland
caught on fire due to pollution. In 1972, only one-third of our
Nation's waters met clean water goals. Now, on this 35th
anniversary, two-thirds of our waters meet these goals.
However, this means that we still have work to do to make sure
that the remaining one-third of our waters meet these goals.
But as we look ahead, I have to say a lot has changed, and
a lot will continue to change as we address our water
infrastructure challenges. Now is a good time to renew our
commitment. Since 1972, our focus on water issues has
broadened. More issues now play a role in our water quality and
the soundness of our water infrastructure. Issues such as the
loss of wetlands, flood protection, endangered species, and
climate change now play a more integrated role.
In my home State of California, we say water is the next
oil. It is an incredible commodity that we do not take for
granted. In California, greater than 90 percent of our wetlands
have been lost. Wetlands are a valuable natural sponge that
helps filter water, which can improve water quality and provide
valuable flood protection when there is excess water.
Additionally, California has the second most listed
endangered species in the Country. But what is interesting
about California is that most of our species have a link to
water and spend at least part of their life cycle in water.
How do these issues factor in today, on the 35th
anniversary of the Clean Water Act? I think these are precisely
the type of questions that we need to hear about from our
witnesses today.
In my district of Sacramento, we have taken on a broader,
more regional approach with our water issues. We have taken a
watershed approach and have begun to reach out to our rural and
agricultural friends in the watershed to discuss ways to manage
our region's water resources and the overall quality of our
water.
Regionally, we have come to realize that we can no longer
classify our communities as strictly rural or strictly urban.
We are all part of the system or the watershed. And today is a
time to renew the dialogue on the management of our water
quality, the safety, and the future of our communities.
Thank you, Mr. Chairman. I look forward to hearing from
today's witnesses and I yield back the balance of my time.
Mr. Oberstar. I thank the gentlewoman for her comments and
certainly all understand that phrase, water is the second oil.
That is very well put.
The gentlewoman from Virginia, Ms. Drake, who represents
the Tidewater area.
Mrs. Drake. Thank you, Mr. Chairman. Mr. Chairman, I just
want to welcome our panelists, thank them for being here, thank
them for their patience today, and I look forward to their
testimony. Thank you.
Mr. Oberstar. Mr. Carney.
Mr. Carney. Thank you, Mr. Chairman. I want to thank you
for holding this hearing on this wonderful anniversary of the
35th year of the Clean Water Act.
And, Mr. Mica, your leadership as well.
But I want to be sure that we address things in balance. We
absolutely have to make sure that we protect the future
generations' water supply, absolutely, but we need to resolve,
in the days ahead, the confusion and the angst that many people
who are the users and consumers of the water, and who have to
work with water all the time, feel based on a lot of the
decisions coming out of the Supreme Court and the way the
regulations have been interpreted and enforced.
Clarity is essential here, and I look forward to listening
to the testimony of the panel. I, of course, respect the
leadership of our Chairman and the Ranking Member on this
issue. I learned a lot earlier on in the debates on the
discussion of clean water. I intend to learn even more after
today's hearings. But, once again, things have to be done in
balance here. Protect the environment, absolutely; assure that
we have water for the future generations, absolutely; but also
we have to remember the economic concerns of many of the
interests. In my district, the farming and mining interest, the
recreational interests, certainly, they all have to be in
balance.
So I really look forward to this testimony. Thank you.
Mr. Oberstar. I thank the gentleman for his statement.
Mr. Altmire? Mr. Arcuri.
Mr. Arcuri. I would just like to thank the Chairman and the
Ranking Member for having this important hearing, and I would
like to thank the panelists, and I look forward to hearing
their testimony.
Thank you, sir.
Mr. Oberstar. Before we go to the next order of business,
which is hearing from our panel, I have a seven minute film,
Troubled Waters. It was produced by the Senate Subcommittee on
Air and Water Pollution in 1963 for the purpose of encouraging
and informing the public of the need for clean water
legislation. It included funds for a camera crew from the
Public Health Service Communicable Disease Center and they used
an Air Force plane to shuttle the crew to and from locations
across the Country. It interviews a great many Members of
Congress who saw the need for clean water legislation at a time
when it wasn't a major public policy concern. So let us roll
the film.
[Film played.]
Mr. Oberstar. Well, that was a look at the past, a look at
the way things were in the years just before passage of the
Clean Water Act, but in the days of what was known as the
Federal Water Pollution Control Act.
To help us understand what has happened since then and
where we are today and where we are headed tomorrow is our
first panel, Secretary Woodley, Secretary of the Army for Civil
Works; Ben Grumbles, former staff of this Committee and former
staff director for my former colleague from Minnesota, and now
the Assistant Administrator for the Office of Water; Linda
Eichmiller, Executive Director of the Association of State and
Interstate Water Pollution Control Administrators; and the
Honorable Kathleen Novak, Mayor of the City of Northglenn,
Colorado.
Secretary Woodley, we will start with you. Welcome and
thank you.
TESTIMONY OF THE HONORABLE JOHN PAUL WOODLEY, JR., DEPARTMENT
OF THE ARMY, ASSISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS;
THE HONORABLE BENJAMIN H. GRUMBLES, ASSISTANT ADMINISTRATOR FOR
OFFICE OF WATER, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;
LINDA EICHMILLER, EXECUTIVE DIRECTOR, ASSOCIATION OF STATE AND
INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS; THE
HONORABLE KATHLEEN M. NOVAK, MAYOR, CITY OF NORTHGLENN,
COLORADO
Mr. Woodley. Good morning, Mr. Chairman, and thank you and
the Members of the Committee for holding this hearing. I am
very pleased to be here this morning to speak about the 35th
Anniversary of the Clean Water Act: Successes and Future
Challenges. My testimony briefly summarizes the Army's
responsibilities under the Clean Water Act and touches upon the
challenges and opportunities in the 21st century. I have
provided a full written statement and ask----
Mr. Oberstar. All statements, in full, by the witnesses
will be included by unanimous consent in the Committee record.
Mr. Woodley. Mr. Chairman, the Corps and EPA work together
to administer the Clean Water Act. The Corps of Engineers has
the primary day-to-day implementation responsibility for
section 404, which covers the discharges of dredge and fill
material into the waters of the United States, including
wetlands. Through the Corps efforts, wetlands and the aquatic
environments of which they are an integral part are protected,
and the environmental and economic benefits provided by these
valuable natural resources are realized, while allowing
important development projects to go forward in a responsible
manner.
This Administration supports our program and wetlands
protection. The Administration has budgeted increases in
funding for our regulatory program from $138 million in fiscal
year 2003 to $180 million in fiscal year 2008, a 30 percent
increase in constant and nominal dollars. Unfortunately, Mr.
Chairman, under the year-long fiscal year 2007 continuing
resolution, the regulatory program was frozen at $160 million.
The Corps' regulatory program staff makes over 110,000
jurisdictional determinations and provides over 100,000 written
authorizations annually. In addition to enforcement duties, the
Corps regulators are also adjusting to the many changes in the
program caused by court decisions, policy adjustments, program
improvements, and the effects of increased coordination under
the Endangers Species and National Historic Preservation Acts.
Despite these challenges, the Corps, in coordination and
cooperation with the Environmental Protection Agency and our
other partners, is helping to exceed the no-net-loss policy on
wetlands while further improving program performance,
predictability, and transparency in several ways that are
detailed in greater detail in the written testimony.
I have personally, Mr. Chairman, made a point of visiting
our regulatory program in each of our 38 regulatory districts,
and I have found the Corps of Engineers personnel involved in
this program to be very professional individuals committed to
the goals of the Clean Water Act. I am proud of their
accomplishments and I feel we are very fortunate not have this
dedicated workforce who have earned and deserve all of our
support.
In conclusion, the Corps and the EPA have a long history of
working together closely and cooperatively in order to fulfill
our important statutory duties under the Clean Water Act. We
remain fully committed to protecting America's waters and
wetlands, as intended by Congress and expected by the American
people. Although we recognize that there are legal and policy
challenges facing the regulatory program, the 35th anniversary
of the Clean Water Act finds the program operating robustly,
supporting over $200 billion in economic activity annually,
while protecting the important wetlands, resources, and aquatic
environment.
I very much appreciate the opportunity to be with you and
testify on this important matter.
Mr. Oberstar. Thank you, Mr. Secretary.
Mr. Grumbles.
Mr. Grumbles. Thank you, Mr. Chairman. I cannot think of a
better place to be on the birthday of the Clean Water Act than
here at the birthplace of the Clean Water Act, so it is quite
an honor to be here on behalf of EPA and Administrator Steven
Johnson to talk perhaps just very briefly about the
accomplishments over the last 35 years, but to really focus in
on some of the challenges and priority areas, and the
commitment we have to work with you and your colleagues on this
great Committee and in the Senate, throughout the Congress, on
continuing to maintaining the progress and sustaining for the
future.
As you know and Members of this Committee know, I think
everyone in this room knows, there has just been absolutely
dramatic progress over the last 35 years. The Clean Water Act
is the envy of the world in so many ways when it comes to
successful environmental laws and programs.
Since the 1972 Act, we have seen the placement of a
national standards and affluent guidelines; a national
permitting program, which, with our State partners, as it
should be, is implemented through the States but with national
guidance and assistance under a very strong and clear
regulatory framework. We have seen an emphasis on pretreatment.
We have seen an emphasis on investment in the Nation's
wastewater infrastructure, the gray, the bricks, the mortar,
the important components of the building blocks for treating
wastewater and restoring waters for downstream users and
increasing communities. We have seen, through the partnership
with the U.S. Army Corps of Engineers and others, tremendous
success on protecting and restoring wetlands through the Clean
Water Act.
The Administration is fully committed not just to the no-
net-loss goal, but also to an overall increase, an overall gain
goal in the quality and quantity of the Nation's wetlands,
which are at the core of this Country's cultural and natural
history and heritage.
We have seen progress in so many ways through the regional
programs, the Great Lakes, the Chesapeake Bay, the Gulf of
Mexico. Many successes.
Mr. Chairman, as you know, as we all know, one of the
greatest challenges is with respect to infrastructure,
maintaining and building, ensuring adequate capacity, and that
is why the Administrator has identified as one of his highest
priorities developing and implementing innovative, sustainable,
market-based financing and management solutions for wastewater
and drinking water infrastructure.
Mr. Chairman, one of the most important things that
Congress can do is to enact the Administration's Water
Enterprise Bonds proposal. We view that as a very important
supplement to traditional financing mechanisms, to other Clean
Water Act financing programs, such as the State Revolving Fund.
But the Water Enterprise Bonds is a key component of that
strategy.
We also are very committed to working with this Congress on
Good Samaritan legislation, so another component that we think
is very essential and timely is moving a targeted, bipartisan
Clean Water Good Samaritan bill to improve the health of
watersheds throughout the Country, but particularly in the
West, where abandoned hard rock mines present challenges to
constituents and to the fish and wildlife.
Mr. Chairman, we also see, particularly as it has been
highlighted so well by the City of Atlanta and the concerns
over water quantity, that the future of the Clean Water Act
depends not so much on new Federal regulatory authorities, but
on working at State and local levels to usher in a new era of
water conservation and efficiency. That is why EPA's Water
Sense program, which is modeled on the Energy Star program, we
feel is a very important one to help change the way American's
view and value water and to look for ways to reduce waste and
inefficiency when it comes to water.
The other item, Mr. Chairman, I would emphasize is
increasing our capacity to monitor for progress throughout the
Country. The Administration's proposal, the $18.5 million water
quality monitoring initiative has precisely put us on the right
path, working with States to get a more accurate picture of
progress when it comes to wadeable streams and lakes and
estuaries and coasts. So we think continued focus on increasing
the monitoring under the Clean Water Act is important.
And the last one is the overall watershed approach, Mr.
Chairman. In every way we feel that the future relies on green
infrastructure and sustainability, and taking a watershed
approach, viewing stormwater not just as a waste product, but
as a water resource and reusing it, using wetlands, restoring
and protecting wetlands to focus not just on the gray
infrastructure, but the green infrastructure over the next 35
years.
Thank you, Mr. Chairman, for the Committee's efforts on
this regard.
Mr. Oberstar. Thank you very much, Mr. Grumbles. Arlan
Stangeland would be proud of you, former Member from Minnesota,
former Member of this Committee. It is also refreshing to have
a witness come and speak from the fullness of knowledge as you
just did.
Ms. Eichmiller.
Ms. Eichmiller. Thank you. The Association appreciates this
opportunity to share the perspectives of State and Interstate
Water Pollution Control Managers on the success of the Act and
the challenges the future holds.
The 1972 Act was built, as you know, on effective existing
State programs and a vision of a partnership to get to its
goals. It has provided a highly effective statutory framework;
however, this is a good time to consider adjustments to
facilitate further progress.
Major accomplishments, we have talked about quite a few.
Waters throughout the Nation have become fishable and swimmable
to the extent that the latest generation of children could not
envision what the earlier generations had to endure and see in
the great pollution of our Nation's waters. Water quality
improvements just didn't happen. Virtually every city, town and
industry invested very significantly to get us to where we are
today. That includes over $500 billion in municipal
infrastructure and the capitalization of a State Revolving Loan
Fund to over $60 billion.
Comprehensive water pollution control programs have been
put into place at the national, State, local, and regional
level. We all deserve a lot of credit for that. A strong
partnership at the State and Federal level has been developed
with national consistency, tempered by the tension of
flexibility to get good solutions into place.
Section 106 grants have funded States' implementation. They
are one of the most important considerations in thinking about
the future of the Act as to how to get implementation most
effectively. With those funds, States set priorities with their
local stakeholders to make the best use of the limited dollars.
The Clean Water Act has ensured public involvement in all
facets of the program. This has been very unique to the Act and
very key to its success.
Lastly, States have been monitoring and assessing water
quality and reporting to you all and the public on the
findings. This wealth of information also helps us focus on the
highest priority water quality problems.
Can the Clean Water Act achieve its stated goals? We
believe, as managers of the program, absolutely yes; that the
interim goal of fishable and swimmable needs to be maintained.
However, as some of you have talked today, solutions in the
future are going to be costly and complex. Innovative treatment
technologies and creative regulatory solutions are going to
have to go beyond the traditional command and control way of
doing business. The flexibility contemplated in the Act for
States to develop creative solutions is key.
As we see major challenges that lie ahead, and has been
talked about today, infrastructure is definitely a major need.
We have funding gaps that are major for infrastructure; we have
funding gaps for State management of the Clean Water program;
and we have substantially more stringent requirements for such
pollutants as nutrients and other issues that increasingly are
pressing upon sources to solve their problems.
We now know that water pollution is caused by air
deposition. Mercury contamination is making our fish inedible.
We have to face together how to have the nexus between the
Clean Air Act and the Clean Water Act to address those
problems. Climate change, as was alluded to today, is a major
concern for us.
Lastly, we need to work to integrate at the watershed level
the problem-solving process and go across State lines to
address the challenges. This is going to require a lot of
creativity.
In addressing these challenges, there are several
conversations we are going to have to have and briefly:
obviously, what is the Federal, State, and local role in
bridging the funding gap? How can we maintain flexibility to
enable, at the watershed level, limited resources to be
allocated to priority problems? How can we promote, in the
Clean Water Act, that watershed problem-solving? What are we
going to do when we realize traditional approaches contemplated
in the Act may not work for nutrients, pharmaceuticals,
endocrine disrupters? We are going to have to think outside the
box a little here. And, lastly, we are going to have to, as you
have talked today, deal with the Clean Water Act jurisdictional
issue.
In conclusion, we believe the Clean Water Act is sound.
Nonetheless, we encourage that we all consider administrative
and legislative refinements based on lessons we have learned,
our scientific knowledge and advancements, and issues that have
emerged since 35 years ago, when the Act was created. Thank
you.
Mr. Oberstar. Thank you very much. Very thoughtful sweep of
the issues before us.
Ms. Novak. Mayor, thank you for coming.
Ms. Novak. Thank you. Good morning, Mr. Chairman and
Members of the Committee. I am Kathy Novak, Mayor of
Northglenn, Colorado, home of the National League Champion
Colorado Rockies. I just have to say it. It doesn't happen very
often; it may not happen again.
[Laughter.]
Ms. Novak. I am here today on behalf of the National League
of Cities, the oldest and largest organization, representing
over 19,000 local elected officials in America's cities and
towns. I appreciate the opportunity to present the views of
local government on the impact the Clean Water Act has had on
the quality of our Nation's waters and on the quality of the
life of our public.
We appreciate the leadership and the dedication of this
Committee in protecting our Nation's water resources and I am
honored to be part of this hearing that celebrates the 35th
anniversary of the Clean Water Act.
The Federal Water Pollution Control Act passed by Congress
in 1948 funded State and local water treatment systems and
required the establishment of State water quality standards.
With States controlling pollution discharge at the local level
and the Federal Government having control over interstate and
coastal waters, little consistency of laws and regulations
existed nationwide. Amendments to the law passed in 1972 and
referred to as the Clean Water Act established a national
system for controlling pollution and protecting our Nation's
waters.
This national system has served local governments well.
Only about a third of the States have any State level water
standards and protections in place, and, of those, many are
substantially weaker than the Clean Water Act requirements. For
the most part, State water protection programs have evolved to
work along with the Federal Clean Water Act, not in place of
it. Because rivers and streams frequently cross State lines,
protections in one State cannot be undermined by a lack of
protection in a neighboring State. Local governments have
benefitted from a national system for controlling pollution
because water everywhere must meet the same water quality
standards; communities downstream from waterways face less
pollution caused by communities upstream.
The original law passed in 1972 set rigorous goals for all
waters of the United States to be fishable and swimmable by
1983 and called for there to be zero discharge of pollutants
into the Nation's waters by 1985. To help States and local
governments meet those requirements, the legislation also
established a general Federal grant program that provided up to
75 percent of the cost to build wastewater treatment
facilities. Indeed, most of our Nation's water infrastructure
was built in the 1970s. Local governments would not have been
able to meet the requirements of the Clean Water Act without
this grant program.
Today, the program known as the Clean Water State Revolving
Fund provides essential money for local governments to assist
in modernizing our water infrastructure. As the population has
increased to close to 50 percent and continues to grow,
governments at all levels must substantially increase
wastewater and drinking water infrastructure funding in order
to maintain and improve the quality of our water. Failure to
make these necessary investments in our aging water
infrastructure will lead to a serious decline in water quality.
Unfortunately, the EPA has estimated that we are falling far
short on water infrastructure spending by $22 billion per year.
Clean water is the backbone of livable communities and
modern society. Effective sanitary and easy access to clean
water support our Nation's health and economy. But like other
invisible systems, we tend to take them for granted. We turn on
our faucet and assume that the water is safe for drinking and
bathing. We assume that our lakes, rivers, and coastal waters
are safe for swimming and fishing. And while we live in a
Country where typically this is the case, it has not always
been so. The Clean Water Act is the main reason the Nation's
waters have shown dramatic improvement in water quality. The
law has been instrumental in improving the health of our lakes,
rivers, and coastal waters by preventing billions of pounds of
pollution from entering our waterways.
We are now at a crossroad where we must determine the fate
of our Nation's waters. Will we continue to move forward and
make progress or will we let this progress slip away? As beach
closings caused by sewage overflows are occurring at the
highest rates ever and economically crucial lakes, rivers, and
coastal waters are being crippled by pollution, it is clear
that there is much work to be done.
It is NLC's position that we must not let the progress made
under this Act be turned back or negated. We must continue to
move forward. We owe it to future generations to ensure that
they too are able to fully enjoy and appreciate clean water.
While the Clean Water Act has resulted in successes in
cleaning up point source pollution in waterways, future
challenges remain for non-point source pollution. Previous
Congresses have refused to consider attempts to authorize
control over non-point source pollution. Unregulated non-point
source pollution such as trash in our streets, oil and grease
from cars, and fertilizers from lawns seep into our local
watersheds, pollute our water, but pass the cost of remediation
onto our local communities. In setting the future direction for
the Clean Water Act for the next generation, we must address
this issue and ensure that all pollution sources are
considered.
Finally, in order to maintain the quality, the critical
investments to our water infrastructure must be made and local
governments cannot bear the cost of this alone. In 2007, the
loan for the funding for Colorado was $323 million, while the
loan capacity was only $41 million. For cities across the
Country, this shortfall will continue to grow more stringent.
We urge you to fully fund the Clean Water State Revolving
Fund, as it provides essential funds for local governments to
assist in improving and maintaining the Nation's
infrastructure, and we thank the Chairman and Committee Members
in your leadership in passing H.R. 720, the Water Quality
Financing Act of 2007.
I thank you for the opportunity to speak on behalf of
cities and towns, and look forward to your questions.
Mr. Oberstar. Thank you very much, Mayor Novak. Is
Northglenn near Fort Collins?
Ms. Novak. Near is a relative term. We are a Denver suburb,
on the north end.
Mr. Oberstar. Oh, okay. All right. Well, my youngest
daughter lives in Fort Collins with her family.
Ms. Novak. It is a beautiful city.
Mr. Oberstar. She lived in Denver for a time and then in
Steamboat Springs, and now Monica and Callie Jo and Drew are
very happy up there in Fort Collins. They love the mountains. I
don't understand why.
Ms. Novak. You need to spend a little more time with us and
you will see.
[Laughter.]
Mr. Oberstar. You raised a number of issues that are of
significance for this hearing and for this Committee, and I
will address two of those. One is the State Revolving Loan Fund
program. Could I invite you to preach that sermon over in the
other body, on the other side, 200 meters from here? They need
to hear that. We have passed, as you noted, this legislation,
not at the $20 billion level of your testimony, but $14
billion. We had to scale it back in order to comply with the
new pay-go rules of the House.
The issue was raised by the Office of Management and Budget
that if we extend an increase to funding, States will borrow
and they will match the Federal available funds with their
local share that will be in tax-exempt bonds and those will be
a loss of revenue to the Federal Government. Very curious
thinking. They are not borrowing that money now; that revenue
is not being lost to the Federal Government; they are not
getting it now, but that is the way the Office of Management
and Budget thinks, regardless of administration. It makes no
difference if it is a Democrat or Republican. If Castro came
in, they would all grow a beard, the whole crowd down there. I
get very frustrated with them.
So we scaled it back and found offsets and came up with $14
billion, and the bill passed the House. It is waiting for
action by the Senate for five months, six months, in fact,
since we passed that bill. So carry your message across the
aisle. I mean, across the Hill for us.
The State Revolving Loan Fund, by the way, is the
replacement for the grant program of the Clean Water Act of
1972, which had up to $6 billion a year in 80 percent Federal
grants to the major metropolitan areas. At that time, most of
the money was committed, I think rightly so, to cleaning up the
major waste streams discharging hundreds of millions of gallons
of sewage a day into receiving waters, and the intention was
that a major shift would come in the second decade of the Clean
Water Act to those of less than 250,000 population. The problem
is then Ronald Reagan was elected President and he cut the
grant program out and we were saddened with a loan program,
which was the State Revolving Loan Fund. We need to go beyond
the $14 billion.
We also passed legislation through the House,
$1,800,000,000 in grants to municipalities to separate combined
storm and sanitary sewers. That too awaits action over in the
other body.
But you did mention the non-point source issue, which, 20
years ago, I cited as the new frontier, the remaining frontier,
after we addressed and were in the process of addressing the
point sources, the non-point source from developed lands,
shopping centers being built, major housing developments, where
you have land runoff. Those all have to be addressed, and I
would like to have you expand on that, why the National League
of Cities feels that this is a frontier to be addressed.
Ms. Novak. Well, I can speak, for example, using my
community. We did establish a stormwater utility and have gone
to great lengths to educate our citizens about these kinds of
issues. We are a suburban community, a bedroom community to
Denver, and yet we have faced the challenges of trying to deal
with the pollutants that come in to our waste stream and our
water stream from people over-fertilizing their yard and
letting it run in, from the oil and the gas leaking not only on
our streets, people doing oil changes at home and rinsing it
down into the gutter and it gets into our water streams.
Here are things that we are encouraging our citizens to do,
and I know throughout the Denver Metro region, building green
roofs, for example, to try and catch some of that. There are
been technological advances in permeable concrete and pavement
that allow the water to come in so it doesn't just drain off,
take those pollutants with it and dump it right into our rivers
and streams.
So I think at the local level we are doing what we can, but
it is difficult because we cannot do it alone, and for us to
bear the total responsibility of cleaning those up, when they
come from sources that are really difficult to determine, is a
burden that is really difficult for us to bear.
Mr. Oberstar. Thank you. Well said and right on point.
Ms. Eichmiller, you suggested creative solutions for States
and localities to develop. What did you have in mind? Can you
give us an example or two of creative solutions that are
promising for the improvement of water quality and what might
be roadblocks we might be able to address?
Ms. Eichmiller. Yes. Building on the mayor's example, I
think Minnesota is a very good example of that, where you have
very complicated, very vibrant stakeholder groups that have a
myriad of Federal agencies, State agencies, regional agencies,
universities, and citizens that have had to convene to see how
are we going to solve our watershed problems, and the role of
the State water pollution control people--and I think the role
of the Clean Water Act--is to help facilitate that process.
If there is a barrier, help remove that barrier and help
encourage all of these actors that have to work together to
really solve what is a watershed problem that is coming from
various different levels. And the solution in the upper
Minnesota, upper Mississippi, is not going to be the same as it
is going to be in California in the various different regions.
We see the future of water pollution control very much in this
direction, and the really fundamental issue for the Clean Water
Act is how can we help make these efforts happen, whether it is
institutional barriers, money. You know, we are a partner in
this.
Mr. Oberstar. Well, the partnership theme has been the
cornerstone of the clean water program since 1956; it was
always envisioned a partnership, Federal and State, with the
Federal Government leading the charge because water moves among
States. So thank you. We will work with you to develop those
themes further.
Mr. Grumbles, you cited a number of issues. Oh, and by the
way, I just wanted to mention that we will be having an
extended set of hearings--three, possibly four; certainly three
hearings--on U.S.-Canada water quality agreement that may start
in December, depending on our legislative schedule here;
possibly November, but certainly December and then on into the
next year, to update the hearings that we held 20 years ago.
We, that I held with Bill Klinger, my Republican colleague at
the time, so prepare for those hearings.
You mentioned Water Enterprise Bonds. Four years ago, our
Committee reported legislation to lift the cap on the Private
Activity Bonds. The Administration then was not keen on doing
this. They didn't threaten vetoes, but they sent messages out
that this was not welcome, and the Ways and Means Committee
stripped out of its legislation that authority that we provided
to lift the cap and pointed out that the problem would be that
there would be a decrease in revenue, as I discussed a moment
ago, on the State Revolving Loan Fund program, there would be a
loss of revenue to States that would all have to be offset. The
Ways and Committee didn't want to do that.
So, first, how much are you proposing in Water Enterprise
Bonds and how do you address the issue of offsets?
Mr. Grumbles. Mr. Chairman, first, can I say how excited we
are to hear about your hearings on the Great Lakes water
quality agreement? Sustainable solutions transcend political
boundaries and agency boundaries, and it is important to
identify priority areas to consider whether to revise a
historic agreement.
With respect to the Water Enterprise Bonds, that was four
years ago. As we learn more about the challenges and the
importance of providing new and innovative financing tools, the
leadership of the EPA and the Department of Treasury came
together and are now supporting removal of that State volume
cap on Private Activity Bonds for water and wastewater, because
we view it as a way to increase local choice and opportunity.
When it comes to dollar amounts in numbers, the estimates are
that that change to the U.S. tax code would result in some loss
in revenue--I think it is less than $200 million--but that in
the early years it would result in $1 billion or more in new
money, new revenue for water and wastewater infrastructure and
$5 billion a year or more in the later years of having the cap
removed.
So it is an important tool in this Country--which I think
has one of the most robust capital markets in the world--to
look for innovative financing. So we think now is the time to
move that legislation, just like now is the time for targeted
bipartisan clean water legislation on Good Samaritans, to
remove the potential barriers, legal and bureaucratic barriers,
to true Good Samaritans cleaning up impaired watersheds.
Mr. Oberstar. Thank you. It sounds to me like Treasury has
gone through a fiscal Head Start program here and picked up a
little steam and learned a few things. A change of heart is
always welcome. That is good to hear. Wonderful. And we will
work with you on the issue of the Good Samaritan legislation.
Mr. Boozman?
Mr. Boozman. Thank you, Mr. Chairman.
In June of 2007, the Corps and EPA released guidelines
regarding the Supreme Court decision, Rapanos and Carabell. How
is the implementation of the guidance coming along? Are permit
applications, are they getting reviewed and processed, are
permits being issued? What is going on with that?
Mr. Grumbles. Well, I would just say from the outset, as JP
and the Army Corps lead the day-to-day permitting, what I have
seen in terms of the EPA's role in overseeing the
jurisdictional determinations under the Clean Water Act, that
the guidance is an important step in providing greater clarity
and consistency and predictability. I know that a priority for
the Congress and for the agencies has been reducing the backlog
in permitting that was the result of the confusion that was
created by the Supreme Court decisions, and we have seen a
reduction in that backlog.
Also, a very important part of that June guidance was an
accompanying agreement, a memorandum between John Paul Woodley
and myself to improve the coordination procedures on those
jurisdictional determinations at the field level in the Corps
and EPA offices, that if there is disagreement over those
difficult to call wetlands, that they could be elevated through
a process. We have seen a number of elevations, but it is a
very small amount compared to the day-to-day jurisdictional
determinations that occur in the field.
Mr. Woodley. My comment would be that there is no question
that the implementation of the guidelines is resulting in an
additional amount of work for the individual permit writers on
the individual permit level for each jurisdictional
determination, and that is resulting in necessarily longer
times being taken for jurisdictional determinations to be made.
But with that observation, I will have to say that it is yet in
the early innings for implementation on this. I am generally
pleased with the way it is being implemented. It generally
seems to be successful in its implementation, but we are
evaluating it and I cannot make a definitive statement on it
today.
Mr. Boozman. So I guess kind of a follow-up, then, is you
are comfortable that the word is getting out so that people and
entities will understand in such a way that jurisdictional
decisions are clear, consistent, so that they will understand?
Does that make sense?
Mr. Woodley. Yes, sir. My early indications are that it is
reasonably positive, given the complexity of the requirement.
So I am cautiously optimistic, but in a big program like this,
you start something in June, you ordinarily don't know much
definitive about it even by October or November. But we are
definitely following it very, very closely, and as Mr. Grumbles
indicated, there appear to be fewer issues between the two
agencies than I had actually anticipated, although there are
some and we are working through them one at a time.
Mr. Grumbles. Congressman, I just want to add it is very
important for us, when we issued the guidance, we understood
this isn't the end of the process, this isn't the end of the
story. This is needed detailed guidance with an accompanying
handbook. We are going to see how it is being implemented in
the field and we are also going to take comments from the
public through December to see if we need to revise the
guidance, reissue it, take another track, a different approach.
But so far we have been focused on workshops, getting out
information, and looking very carefully to see are there still
some areas of uncertainty. And it is clear we need to continue
to work on that and oversee it, and help answer, as quickly as
we can, policy questions or legal questions that come up.
Mr. Boozman. Very good. Mr. Grumbles, as you know, the
Committee has done a lot of work trying to improve the
scientific basis of our water programs, particularly focused on
improving water quality standards, improving and monitoring
data collection. What is the EPA doing to help ensure the
success of these initiatives? I know that we faced, and still
do face, a situation--I am from Arkansas. We interface with
Oklahoma and Missouri with water quality issues and things, but
one of the things that we found in doing that was that
literally, as the universities talked from different States and
things, that there was even basic disagreement about the
measurements that are used, just really some very basic things.
Are you all addressing some of those problems to make these
things easier so that we can actually look at data and it kind
of be able to----
Mr. Grumbles. Sir, that is particularly important,
recognizing we are a Nation of rivers and they can be
interstate rivers. As you know and as Linda Eichmiller knows,
there are times when it is really important to start with a
common understanding of the problem and an understanding of
what are the goals and what are the water quality standards
that apply. So the agency is focused on several fronts in that
regard to advance sound science and help decision-making
legally defensible and collaborative efforts to resolve water
quality disputes or problems.
One very important component of that is on the water
quality criteria themselves that States then use for
designating the uses for their waters. We are very focused on
continuing to improve the criteria, particularly in the
recreational waters front pursuant to the Beaches Act of 2000,
but also inland waters, looking at the best available science
to update the criteria that we use for water quality standards.
The other component, Congressman, is the use attainability
analysis process. It is very important for States and
localities to have a viable tool to modify or adjust their uses
based on natural conditions or other changing conditions so
that they can then get the designated uses correct. So that,
coupled with our focus on monitoring, improving the Nation's
water quality monitoring, we think will result in continued
progress under the Clean Water Act regulatory programs, not
just the permits that are based on technology controls, but on
the water quality-based permits, which is more and more
relevant in the 21st century.
Mr. Boozman. Thank you very much.
Thanks to the panel. Your testimony was very helpful.
I yield back, Mr. Chairman.
Mr. Oberstar. I thank the gentleman from Arkansas for very
thoughtful and probing questions.
In response to one of those questions, Mr. Grumbles, you
cited sort of a decline in the number of permits and the time
taken to process them. Yet, the St. Paul District, Secretary
Woodley, of the Corps cited, as has done other district
engineering officers of the Corps, an increase in a number of
permits, a 50 percent increase, in fact, in the number of
permits and in the time taken to process them because of
uncertainty of how to proceed.
Now, in the aftermath of Scalia and Rapanos--I use that
term loosely; Justice Scalia thought he was Senator Scalia for
a time, or maybe Congressman Scalia. He was certainly
legislating from the bench. He certainly did not read the
opening paragraph of the Clean Water Act in making his
decision.
So we have roughly three scenarios: the Scalia test,
relatively permanent waters; the Justice Kennedy test,
significant nexus; and then we have the Administration test,
which combines these two. So what are district offices to do?
What is EPA to do? And how are you going to establish a clear,
consistent, predictable interpretation of the Clean Water Act
that does not raise the fears and concerns that have been
forthcoming over these many months?
And I will let you toss a coin to decide who wants to
answer that.
Mr. Grumbles. I am going to turn to John Paul. I just
wanted to also clarify a statement. If I said, in terms of
backlogs, permit backlogs, I meant jurisdictional determination
backlogs. That since the issuance of the June guidance----
Mr. Oberstar. Oh, I see. Okay. All right.
Mr. Grumbles.--we have seen a significant decrease in the
backlog of jurisdictional determinations, which then leads to
the permitting process.
But when you are having a hearing on the Clean Water Act
and the future of it, permit backlogs is critically important
too. And on the 402 front, the non-404 front, we have
recognized for several years, with the States, that that is a
key priority, and we all, working together, made significant
progress because, as you get these permits up for renewal,
rather than just an administrative continuance of the permits,
it is an opportunity to update, to strengthen, and to improve
those permits.
And on 404, I will turn to JP, but just to say that our
view on it is that we recognize, both agencies, that there is
an added stress on the workload for the government agencies
because we didn't choose to go with one of the tests or the
other tests; we said you can use either one. If one doesn't
meet jurisdictional standards and you don't assert
jurisdiction, you can also go through the other one, and on
those close-to-all areas, do it on a case-by-case basis, don't
just categorically exclude those waters from coverage under the
Act. So that puts added stress on the agencies.
Mr. Oberstar. Thank you. We look forward to working with
both EPA and the Corps, continuing a dialogue on streamlining
the process and streamlining the permitting structure that we
now work under.
Secretary Woodley.
Mr. Woodley. Thank you, Mr. Chairman. I think what our
experience has been to date is that the Scalia opinion test is
not difficult to administer, and there is very little doubt--
there never has been great doubt--with respect to the
jurisdictional status of waters described in that rule. The
issue that we have had that is causing any uncertainty that
exists is the application of the significant nexus test, which
is something that we had never done before, and which is not a
clearly defined, bright line test. Significance of nexus to a
navigable water is not something that can be done readily
determined from easily stated and well understood standards or
data that has been routinely collected in the past or is
readily available from open sources.
The result is that our guidance that we developed with EPA
has sought to, to the maximum extent possible and in the
absence of rulemaking, to indicate what the agency's views are
with respect to those areas that can clearly be found to be
significant, and then to suggest criteria that can be used in
the field to make a significance determination beyond those
areas; and that is, I think, the best we can do at the time.
Mr. Oberstar. Thank you.
Mr. Carnahan.
Mr. Carnahan. Thank you, Mr. Chairman. I appreciate you and
Ranking Member Mica in holding this hearing today on the
successes and future challenges of the Clean Water Act. I
especially appreciated the historic film footage that we got to
see earlier in the hearing. It reminded me--and I have to
acknowledge before I ask a few questions--one of my mentors I
think deserves a little bit of recognition here, but during
that time period, in the early 1970s, we had a young first-term
Senator named Tom Eagleton from Missouri, and he was very
instrumental in crafting the Clean Water Act from his position
on the then Senate Public Works Committee. He just passed away
recently, but I know this was near and dear to him.
I wanted to, I guess, focus my short time in questions to
the Secretary and Mr. Grumbles, really focusing on the
Administration's commitment to the Clean Water Act and, in
particular, local to St. Louis, where I am from and the people
that I represent. We have had a long-term problem with combined
sewer overflows, with, sadly, some of our crumbling
infrastructure dating back to the Lincoln administration, if
you can believe that. In fact, the EPA is currently suing the
St. Louis Metropolitan Sewer District for violations of the
Clean Water Act caused by CSOs.
But, simultaneously, the Administration has refused to
spend substantial funding on combined sewer overflows or other
environmental infrastructure projects. In fact, the Army Corps
fact sheet states bluntly: ``environmental infrastructure is
not a budget priority.'' Well, I think the Clean Water Act
really makes it clear that it is a Federal priority, and I
wanted to ask you both to comment on why you think this has not
gotten the greater priority in terms of addressing this issue
with combined sewer overflows and how we can give them a better
priority. I know St. Louis is not the only part of the Country
that has this issue.
Mr. Woodley. Thank you very much for your question, Mr.
Carnahan. This is an area that has been very troubling to me
during my entire tenure, particularly because when I was
serving as Secretary of Natural Resources in Virginia, two of
our major cities had combined sewer overflow issues, had
judicial orders and consent decrees that they were operating
under--I am referring to the cities of Richmond and Lynchburg--
and were very aggressively moving forward, and when I was at
the State level, I supported State support for those efforts,
although the localities were shouldering the vast majority of
the burden, and I was very grateful for Federal support. At
that time, the Federal support that came was through the EPA
arena, it came as a grant through the EPA process.
The fact sheet that you mentioned I think should be
regarded as specific to the Corps of Engineers program and
should not be regarded as an overall Administration position on
sewage treatment projects within the overall Federal budget.
Our position has been--and this is not just this
Administration, this goes back many years--that that type of
project is not within the core--that is, C-O-R-E--mission of
the Corps of Engineers--C-O-R-P-S. So it is not a question of
opposing them, it is a question of suggesting that when we
devote resources into the Corps of Engineers budget, they
should be, generally speaking, if at all possible, focused on
the Corps of Engineers' primary missions of navigation, flood
control, ecosystem restoration, and other ancillary missions of
hydroelectric power production, and aquatic-based outdoor
recreation.
So when our fact sheet talks about that, that should be
understood very narrowly within the context of the Corps of
Engineers budget process.
Mr. Carnahan. Well, I might suggest--and I will use, again,
the specific example of St. Louis, clearly, within the core
mission of the Corps, as you mentioned, is ecosystem
restoration, and when we have combined sewers that are emptying
directly into the Mississippi River, that that, to me,
certainly squarely fits in that definition. So certainly they
are connected. I think that is really difficult to separate
that out.
Mr. Woodley. Thank you, sir, but it is not within our
definition of aquatic ecosystem restoration. Not meaning to
quibble with you, but it is considered a separate category.
Mr. Grumbles. Congressman?
Mr. Carnahan. Yes.
Mr. Grumbles. From an EPA perspective, environmental
infrastructure is a priority. It is a priority on several
fronts. The State Revolving Fund has, over the years, provided
approximately $8 billion in funding for CSOs and SSOs, at least
by my count. Our position is three-fold. One is from a Clean
Water Act enforcement standpoint, we owe it to communities
downstream, to the Gulf of Mexico to ensure that national
standards on nutrients and pathogens are met, so a commitment
to continue to put an enforcement priority, when the Clean
Water Act is being violated due to CSOs, combined sewer
overflows.
The second step, though, is because we recognize
communities across this Country, like St. Louis, face very
large price tags to bring their systems up to grade and to meet
the Clean Water act. So the question is how best to do that,
and the overall position of the agency is State Revolving Fund
monies, the seed money that the Federal Government has provided
over the years has led to a very strong and successful program
to help further leverage funds, but we need to ensure that
rather than the Federal taxpayer, the local rate payers need to
be the ones who primarily finance those important Clean Water
projects. So working with the communities to instill a sense of
full cost pricing so that the rates reflect the needs of those
important projects is a priority for us.
The third is to look for innovative approaches to reduce
the costs and increase the environmental benefits, and that is
through the concept of green infrastructure. Greening the
watershed and in an urban environment that can be a challenge,
but it can significantly reduce the costs which are extensive
for communities that have CSO long-term control plan needs and
requirements.
Mr. Carnahan. I appreciate the fact that you are going to
be visiting St. Louis later this week, and look forward to
working with you.
Thank you, Mr. Chairman.
Mr. Oberstar. I thank the gentleman.
The gentleman from South Carolina, Mr. Brown.
Mr. Brown. Thank you, Mr. Chairman, and thank you to the
panel for coming and sharing some great information and being a
part of trying to find a solution to where this Country will be
going. I know that my friend from Georgia testified that they
are in a tremendous drought down in his region, and we can
testify to the same. We thought we had a great watershed that
would sustain us for a long, long period of time, but we are
noticing a lot of stumps now where water used to be, and we are
competing, I guess, with Georgia and with North Carolina for
the resources of good clean water, and I know this a major
problem you will have to be dealing with pretty quick in the
future.
One of the problems we have got is we have a hydro system
that is on that lake, and because of the saltwater intrusion
coming up that river, we have to dump some of that good water
that we need for--we also have some water systems tied into
this lake system and, of course, we are competing with those
other entities for that same water. This is going to be a major
problem, as we see, down the road. Are we going to be more
concerned with the saltwater intrusion than we are from the
pure water we have to use in order to keep that from happening?
This is a major concern.
But I appreciate what you have done. I know the Harbor of
Charleston now is a great place to be and once before, I guess
20 years ago, we were dumping raw sewer there, and this is a
major undertaking. We got a $100 million project now replacing
those 100 year old tunnels. It is 100 feet down below the city
and we are grateful for EPA and your support there.
My question would be I know that as we passed the
guidelines based on the Supreme Court ruling. Could you give us
a clear definition of do we have a clear definition each time,
as we try to define what an isolated wetland really is?
Mr. Woodley. Yes, sir. I believe that the work that we have
been doing in the area of isolated wetlands has made the
definition increasingly clear, and I think that we have rarely
had an issue concerning that, although--well, we have very
recently published--in fact, about the same time we published
these guidelines--published a new manual that sought to codify
the best practices; in other words, not to change the rules,
but we did an entire survey of all of our districts and all of
our divisions and asked them how they were applying, in various
situations, whether or not a wetland or stream was isolated,
and we found that there were a good bit of difference between
the various districts, but that in every case there seemed to
be a sort of a center of gravity where most of the districts
were applying the same type of rule.
And we codified that as the best practice from the experts
in the field and we have issued that as a manual, more of a
training guide. It is not a policy, it is not legally
enforceable and doesn't change any of the rules that we use,
but it is a training guide that is available not only to the
Corps of Engineers professionals, but also to landowners and
professionals in the field and surveyors and private engineers
to let them know what is the Corps people looking at when they
ask the question of whether something is isolated.
That is also fairly new, so I really can't make any
representations about how well it is working, but that was an
initiative that I took in response to the finding that I made
when I was out in the field, that they were all trying to
wrestle with these issues and to do the best they could, but
that sometimes in Charleston you have got one rule and in
Wilmington you had the same people trying to do the same thing
and coming up with a slightly different interpretation. So I
hope we can continue to improve that, but it is certainly
something we are focused on.
Mr. Brown. Is part of that dialogue, do you think you will
come up with some standard of what streams are navigable and
which ones aren't? Do you all have any plan to categorize the
different bodies of water that says, well, if you are attached
to this it is isolated wetlands; if you are not attached to
this it is not?
Mr. Woodley. So far, we have not moved in that direction,
and we are dealing with the questions based on who is applying;
and we make determinations specific to particular application.
Then, of course, that will set precedent for any applications
in the future. But I believe and I am hopeful that that is
something that, working with EPA, we will be able to do in the
future because I mentioned that some of these issues have come
forward and been elevated under our guidelines.
One of them, in fact, involved a disagreement between the
field offices as to whether a particular stream was in fact a
navigable water, and that seemed to me something that we really
need to nail down and that we can't be having that level of
uncertainty within the program. But, generally speaking, the
navigable waters are fairly well known, but there is that area
of uncertainty the higher you go up in the watershed.
Mr. Brown. And sometimes we would have some disputes
between what the Corps identifies and what EPA identifies, and
that makes it a conflict with those people that are trying to
accomplish whatever goals they are trying to do out there.
Mr. Grumbles. Congressman, I just want to say that since we
have been working together on this issue over the years, and
certainly since the June guidance in light of the Supreme Court
decisions, there is a commitment of the two agencies to work
together in an integrated fashion and make decisions together.
There are disagreements at times in the field, and we just need
to work through those.
On the isolated intrastate non-navigable wetlands--and the
Supreme Court spoke very clearly about limiting our ability to
assert jurisdiction over those--we are spending a lot of time
trying to provide greater clarity and consistency for
jurisdictional determinations, as JP mentioned, particularly in
those areas where the difference between isolated and adjacent,
and then, as we have committed to do, is use the significant
nexus test or standard that Justice Kennedy articulated; and
that is where we agree we need more field experience and we
need to work with the regulated community to get their views on
how best to make those decisions and use the best science that
is available.
Mr. Brown. I really do appreciate this cooperation between
the two of you; I think it really will help clarify some of the
questions that are out there.
Mr. Chairman, I know my time has expired. Thanks for
holding this hearing.
Mr. Oberstar. Thank you very much for those questions,
which go to a very core issue here for both agencies.
Before I go to Ms. Richardson, Mr. Grumbles, you said
that--or maybe it was Secretary Woodley who said that some 2
million 700 thousand plus acres of wetlands have been restored,
protected, or improved in the last three years. Do you have a
compendium of those? Can you make that available for the
Committee, please?
Mr. Woodley. Absolutely. That has been made public and
published by the White House on an annual basis, and it is a
remarkable record working with, of course, our agencies. But to
be perfectly fair, I think that our agencies played a role, but
that the Agriculture Department under the authorities that the
Congress has given it and the farm bills over the years, and
the Interior Department, working within its authorities, have
made massive contributions as well.
Mr. Grumbles. And, Mr. Chairman, that important goal that
the President laid out, it doesn't rely on Clean Water Act
regulatory compensatory mitigation or the other regulatory
tools. What it was is a goal under cooperative conservation and
stewardship, using various programs that we all have,
particularly Interior and USDA, to make significant progress
and to measure it and to be accountable and identify precisely
how we counted up the acres on that, and that is what we have.
Mr. Oberstar. Thank you. We will receive that for the
Committee record and pertinent parts of it will be included in
the Committee hearing at this point.
In your June 5 guidance document, a footnote says, ``The
Supreme Court held use of isolated non-navigable interstate
waters by migratory birds is not in itself a sufficient basis
for the exercise of Federal regulatory jurisdiction under the
Clean Water Act. This guidance does not address the SWANCC
case, nor does it affect the joint memorandum issued by the
general counsels of EPA and the Department of the Army.''
That raises questions about what rulings you would make on
isolated water. If a previous mitigation project had taken
place in an isolated water, and if we use the EPA core
guidance, is this water now considered non-jurisdictional?
Could mitigation land be redeveloped?
Mr. Grumbles. Well, there are two guidances that we are
working under, the 2003 SWANCC guidance--and the basic point
there is in the guidance we held open the possibility that
there could be circumstances under (a)(3) paragraphs of our
regulations where there could be an assertion of jurisdiction
over isolated interstate non-navigable waters without relying
on the migratory bird rule provisions. As a legal matter, that
is still possible, but as a practical matter we had not
asserted jurisdiction over those types of wetlands based on
that guidance, which is still in place.
The subsequent guidance, the June 2007 guidance, the
Rapanos guidance, we really wanted to focus in on not on the
isolated interstate non-navigables, but on the precise types of
wetlands that were at issue in the Rapanos and Carabell
decisions; and there we took the opportunity to flush out the
principal that we will use either the Scalia standard or the
Kennedy standard and go through that analysis for wetlands and
also for various types of streams and water bodies.
JP?
Mr. Woodley. Mr. Chairman, that is a very good point and a
very good question, and the answer, I believe, straight answer
would be that those mitigation lands might very well be found
to be non-jurisdictional under the Supreme Court decision.
However, there is a bit of a safety net in the program, and
that is that, routinely, we require a permanent easement for
conservation to be filed as a land record in favor of the
United States against any lands that we accept as mitigation
for loss of wetlands, and if that easement was recorded, it
would be enforceable, regardless of the jurisdictional status
of the land that was later determined to be isolated.
Mr. Oberstar. Thank you.
You know, it is ironic that on this 35th anniversary of the
Clean Water Act, that so many questions have been raised about
it in light of the two Supreme Court decisions, and opening an
opportunity for some people who disagree with the Clean Water
Act, many aspects of it, to raise questions and to begin to
undermine it. But the confusion created here, as summed up by
questions that have been raised, that the guidance would
include constructed open water ponds on golf courses and
ornamental fountains or stormwater retention areas as
additional wetlands. I don't think that is your intention, is
it?
Mr. Grumbles. I will tell you one thing that we are all
committed to doing is improving the methodology for the
national wetlands inventory, which I know you are familiar
with. And in the context of that national wetlands inventory,
the methodology that has been used, the cordon methodology over
the last decade or more, has included a category for water
bodies, water features such as the one you described.
What we are committed to doing is working with the Fish and
Wildlife Service and other agencies that, as they take the lead
in preparing the next national wetlands inventory to help
measure progress towards no net loss, that we have special
consideration of those types of water features so that we can
have as accurate and clear a message and picture of progress
that we are making or challenges that remain ahead.
Mr. Oberstar. Thank you. We will be pursuing this matter
with you.
Ms. Richardson, we are about to have a vote. There it goes.
You will have the final word with this panel.
Ms. Richardson. Actually, sir, I think the questions were
well covered, and, in my preparation, not only did I read the
background, but my chief of staff made sure that I watched
Chinatown this weekend, the whole story about the efforts of
water in California. So I enjoyed all the questions and look
forward to serving. Thank you, sir.
Mr. Oberstar. Thank you.
Mr. Boozman, do you have anything further?
Mr. Boozman. No.
Mr. Oberstar. I want to thank this panel for their very
thoughtful comments, excellent preparation, complete statements
that will all be included in the record. And anything you wish
to supplement will be accepted for the record as well.
I will call our second panel, but then we will have to
recess for the vote and resume as soon as we can thereafter.
Our second panel is Ms. Derry MacBride, Chairman of the Garden
Club of America. And I particularly welcome the Garden Club of
America because you were the first ones. You were there in 1955
and 1956, well, let me say, long before you were born. But the
Garden Club of America were there as the original supporters of
the clean water legislation of my predecessor, John Blatnik.
Mr. Christopher Westhoff, Assistant City Attorney, Public
Works, General Counsel for the City of Los Angeles, on behalf
of the National Association of Clean Water Agencies; Mr. Peter
Lehner, Executive Director of Natural Resources Defense
Council; from our State of Minnesota, Kevin Paap, my good
friend, President of the Minnesota Farm Bureau, with whom we
have had many discussions about the Clean Water Act and the
legislation I have introduced to restore it; Mr. Mark
Singleton, Executive Director, American Whitewater, on behalf
of the Outdoor Alliance; and Mr. James King, Jr., President of
Dekalb Pipeline, Conyers, Georgia, on behalf of the National
Utility Contractors Association.
If all of you want to take a stretch and a deep breath, we
will resume in roughly 20 or 25 minutes, depending on the time
it takes to conclude this vote.
[Recess.]
Mr. Oberstar. All right, we will resume our sitting. I
walked over from the votes with Mr. Boozman, who had to stop by
his office for a moment, but he invited me to continue the
hearing, and he will be along shortly.
So we will begin with Ms. MacBride. Again, I want to thank
you and your predecessors of the Garden Club of America for
being the first ones to step forward to support a comprehensive
program of clean water for America. You were there at the
beginning and you are here at the 35th anniversary. On behalf
of my predecessor, John Blatnik, I welcome and thank you.
TESTIMONY OF DERRY MACBRIDE, CHAIRMAN, GARDEN CLUBS OF AMERICA,
NATIONAL AFFAIRS AND LEGISLATION COMMITTEE; CHRISTOPHER
WESTHOFF, ASSISTANT CITY ATTORNEY, PUBLIC WORKS, GENERAL
COUNSEL, CITY OF LOS ANGELES, CALIFORNIA, ON BEHALF OF NATIONAL
ASSOCIATION OF CLEAN WATER AGENCIES; PETER LEHNER, EXECUTIVE
DIRECTOR, NATURAL RESOURCES DEFENSE COUNCIL; KEVIN PAAP,
PRESIDENT, MINNESOTA FARM BUREAU, ON BEHALF OF AMERICAN FARM
BUREAU FEDERATION; MARK SINGLETON, EXECUTIVE DIRECTOR, AMERICAN
WHITEWATER, ON BEHALF OF OUTDOOR ALLIANCE; JAMES KING, JR.,
PRESIDENT, DEKALB PIPELINE, ON BEHALF OF NATIONAL UTILITY
CONTRACTORS ASSOCIATION
Ms. MacBride. What a warm welcome. Thank you so much,
Chairman Oberstar. I really appreciate that. Thank you. And to
Members of the Committee, as well as the Chairman, I thank you
very much for inviting me here to speak today on the historical
relationship between the activities of the Garden Club of
America here in Washington and the history of the Clean Water
Act.
I also wanted to say, Chairman Oberstar, I know you have
been a great supporter of GCA for a long time, and we hear it
from a variety of sources, and we all very much appreciate
that. So thank you.
I would like to briefly introduce myself, tie in a bit of
that history together, and then I appreciate that you mentioned
earlier that my testimony will be entered into the record.
So I am the Chairman of the National Affairs and
Legislation Committee of the Garden Club of America. The Garden
Club of America has 17,600 members in 197 clubs across the
Nation and has long enjoyed an excellent working relationship
with Members of Congress on issues related to our environment.
We greatly appreciate Congress's past consideration of our
views and the opportunity to offer our thoughts on the 35th
anniversary of the Clean Water Act.
Since its founding in 1913, the Garden Club of America has
been a strong advocate of conservation and sustainable uses of
our natural resources, as well as efforts to advance public
awareness of the state of our environment. We have long been
involved in legislative activities since the earliest days. In
1921, one of our founders testified before Congress on behalf
of the national parks.
Many GCA members from across the Nation were active in the
1930s in a battle to save the California redwoods. Ladies
actually traveling from across the Nation and way up into
Northern California, into the depths of the redwoods, came in
full regalia with steamer trunks in toe, no less, and went so
far as to purchase a 7,000 acre redwood grove and donate it to
the State of California.
I actually visited that redwood grove, the GCA redwood
grove, two weeks ago in Northern California, and it is really a
formidable sight to behold. I hope you all get a chance to
visit if you haven't been there.
Much further down the road, during Federal hearings in
1967-68, GCA formally supported the preservation of estuarine
and marine resources. It was at this time that GCA formed the
National Affairs and Legislation Committee to represent its
concerns in Washington. Our NAL Committee follows most
environmental legislation and advocates for protection of our
natural resources, and it works in tandem with the Conservation
Committee, which provides background research and education on
critical environmental issues. Our two Committees then send our
information and policies back to the ground forces in all our
local clubs.
We also surge into your offices every February, after our
annual conference, to make sure that you haven't forgotten us
and our views.
While well intentioned, earlier efforts such as the Water
Pollution Control Act of 1948 did not come close to addressing
the continued contamination of waters. By the end of the 1960s,
it became clear that more was needed. A number of beaches
across the Country had been closed to polluted waters and the
public, as mentioned by the Chairman, had become increasingly
aware of pollution as a national concern when it was documented
in many of the Country's best known waterways, including the
Great Lakes, the Potomac River, and Boston Harbor.
As the Committee knows, and as was also mentioned by the
Chairman earlier, the exhibit A of our national water pollution
crisis was the 1969 fire on the surface of the polluted
Cuyahoga River in Cleveland, Ohio. The fire was triggered by
the mix of industrial waste and marine engine oil, and it
damaged two railroad bridges and convinced many doubters that
addressing water pollution had to be placed in the top tier of
the Nation's public policy agenda.
In 1972, as a result of a broadly based bipartisan effort,
Congress passed a set of amendments to the then 24 year old
Water Pollution Control Act. The new amendments were intended
to reduce the pollution in the Nation's waters through the
regulation of pollutant discharges by business and industry.
These amendments later became known as the Clean Water Act. One
of my predecessors, as chair of our National Affairs and
Legislation Committee, Ellie Kelly, testified before Congress
in support of these efforts.
In 1987, Congress reauthorized the act and added new
provisions strengthening facilities. Roughly the same time,
another of my predecessors, Winston McIntosh, established
something called the Hot Line. At that time, it was an
answering machine with recorded updates of the status of
environmental issues of interest to GCA so that our members
across the Country could stay abreast of activities in the
Capitol. As you might imagine, with the advent of computers and
electronic communication, the Hot Line has been replaced by an
extremely detailed, thorough, and electronically distributed
legislative update and status chart.
Today, the Clean Water Act is generally regarded as one of
the most successful pieces of environmental legislation in
American history. The Great Lakes and numerous urban harbors,
and even the Cuyahoga River, have been revitalized. Despite
population growth, pollution levels in the Nation's waters were
reduced 36 percent between 1972 and 1996, and on the 25th
anniversary of the Act the EPA estimated that--and I am not
going to detail them all due to time--that significant advances
had been made, and they will just be mine in the record, but
they basically had to do with U.S. rivers and lakes, industrial
discharges, sewage treatment, wetland losses, crop land soil
erosion. Indeed, many problems still exist, but these advances
show the need for clearer strong regulations and strict
enforcement.
After the 25th anniversary, GCA was invited by the
Administration to participate in a White House conference on
global warming, the American Heritage Rivers Initiative, and a
small group developing recommendations on the right-to-know
rules regarding safe drinking water. The group consisted of
seven environmental organizations, led by Carol Browner,
Administrator of the EPA.
Okay, I know I am running out of time, so I am just going
to skip a little more along here and just say we also responded
to the increasing volume of legislation by promulgating
position papers that set forth the specific points we wish to
see addressed in legislation. We are very much aware, for
example, of the critical and delicate role our Nation's
wetlands play in water quality, soil maintenance, and watershed
vitality.
Accordingly, our current position paper on clean water
encourages a vigorously enforced clean water and clearly states
our support for ``the preservation and protection of wetlands,
including strict standards for any method of wetland
alteration. Wetlands and their associated streams are an
extremely productive part of the watershed. Even when they are
in a temporarily altered, less visible, or tangible state, they
are still very much functioning and in no less need of
congressional protection.''
The 35th anniversary of the Act marks an opportunity to
honor that Act by sustaining and strengthening its original
objectives. We are particularly pleased that with the
leadership of Chairman Oberstar, many of you have co-sponsored
the Clean Water Restoration Act of 2007, introduced as H.R.
2421. The provisions of this Act are critically needed to
reaffirm the original intended scope of the Clean Water Act,
which guaranteed all Americans the right to clean water.
Congress's response to the water pollution crisis of the
1960s reminds us that the history of strong legislation to
protect our environment is largely one of bipartisanship. The
Clean Water Act of 1972, the Clean Air Act of 1970, and
Endangered Species Act of 1973 were all passed 30 or 35 years
ago under Republican administration in a Democratic Congress.
Indeed, in my own home State of California, the California
Environmental Quality Act of 1970 was enacted by a split
legislature and signed into law by Governor Ronald Reagan.
By and large, these critical pieces of legislation have
served the public well over all these years, and I hope that
level of bipartisanship can continue today with respect to H.R.
2421. We ask that both sides of the aisle recognize that the
pollutants and impurities from which Americans seek protection
travel through aquifers, marshes, and wetlands with no apparent
regard for the visibility of nearby navigable water. The reach
of the Act therefore needs to be expressed as broadly as
possible, lest Congress's intent to maintain protections of the
Act fall victim to simple hydrology.
In conclusion--always a well received phrase--in the 35
years since the enactment of the Clean Water Act, our
population has grown substantially and seriously overtaxed our
limited resources. Those who worked so hard to pass the Act in
1972 may have expected that phenomena, but they probably did
not predict the more recent climate change that is already
having myriad adverse impacts on our resources and outlook for
the future. What we have learned over the last few years surely
demands that we redouble our commitment to this Country's
natural resources announced in 1972.
As in 1972, we look to Congress to act for us as custodians
of our vital, treasured resources. Today's hearing offers me
great hope that the trust we have placed in Congress to protect
these resources on which the very fabric of our future depends
is well placed. You have an important opportunity through this
Committee to leave a positive legacy for the future by
restoring the integrity and intent of the original Clean Water
Act. We certainly support that effort.
And I thank you on behalf of the Garden Club of America,
the National Affairs and Legislation Committee, but more
importantly, however, I thank you on behalf of our children and
future generations who are surely entitled to the broad
protection of the Clean Water Act as envisioned by its
supporters 35 years ago. Thank you very much.
Mr. Oberstar. I thank you for that splendid statement and
for that sweep of history of involvement of the Garden Club of
America and for your presence here today.
Ms. MacBride. Thank you.
Mr. Oberstar. Mr. Westhoff.
Mr. Westhoff. Thank you. Good afternoon, Chairman Oberstar
and Members of the Committee. I am Assistant City Attorney and
Public Works General Counsel for the City of Los Angeles.
Today, I am testifying as President of the National Association
of Clean Water Agencies, NACWA. NACWA is the only organization
dedicated solely to representing the interests of the Nation's
public wastewater treatment agencies who treat and reclaim more
than 18 billion gallons of wastewater each day.
I am pleased to be here today as we celebrate the 35th
anniversary of the Clean Water Act, and I want to thank you for
holding this important hearing as we face some serious
challenges to the goal of clean water as we move into the 21st
century. This testimony will focus on the water and wastewater
infrastructure funding crisis and the need to transition to a
more adaptive watershed based approach that can meet the
complex resource-intensive challenges of the future. NACWA's
short-and long-term recommendations to accomplish these goals
are set forth in a key NACWA report being released today
entitled Recommendations for a Viable and Vital 21st Century
Clean Water Policy.
In the 35 years since the passage of the Clean Water Act,
our Nation has made tremendous progress in addressing water
pollution problems. The Federal-State-local partnership,
exemplified by the Act's construction grants program, led to
the construction of numerous state of the art facilities which
now constitute the most advanced group of regional wastewater
treatment systems in the world. Since that time, the Act's
focus has been on addressing the point sources of pollution
that, at that time, constituted the most immediate concern for
the improvement of water quality.
Communities now enjoy the environmental and economic
benefits of cleaner water, such as thriving waterfront
communities in Cleveland and Chicago, restored fisheries in
Lake Erie and the Potomac River, and increased revenues from
real estate investment, recreation and tourism in many coastal
communities, including Los Angeles.
Today, however, we find ourselves at a historic junction
for the Nation's clean water future with our population
expected to increase by 100 million people over the next 30
years, driving a massive industrial expansion needed to meet
this demand.
The costs associated with this investment in clean and safe
water have also risen, while the Federal contribution to these
clean water improvements has dwindled. The Federal-State-local
partnership that was so successful during the early days of the
Clean Water Act has eroded to the point that municipalities now
shoulder over 95 percent of the costs associated with providing
clean water. Federal Assistance simply has not kept pace with
the financial needs of clean water, declining more than 70
percent since the 1970s. The Nation now faces a funding gap of
$300 billion to $500 billion over the next 20 years between the
current levels of spending for wastewater infrastructure and
the total funding needs, and this is according to the
Environmental Protection Agency, the Congressional Budget
Office, and the Water Infrastructure Network.
In the 1990s alone, Los Angeles spent over $1.6 billion to
upgrade the Hyperion Treatment Plant to full secondary
treatment. This was only one plant, and only a small portion of
this expenditure was funded through the Federal Clean Water
Grant Program. In this decade, Los Angeles will spend more than
$4 billion to address the physical needs of its aging 6500 mile
long wastewater collection system and other wastewater
infrastructure, and there is no grants program. To meet this
aggressive expenditure program, rates have already been raised
7 percent per year for each of the past five years, and in 2008
our infrastructure team will ask our city council for a nearly
9 percent rate increase for each of the succeeding five years.
A new approach to doing business in the 21st century and a
return to sustainable, Federal-State-local partnership to
bridge the funding gap are desperately needed. NACWA
appreciates the Chairman and the Committee's leadership in
passing H.R. 720, the Water Quality Financing Act of 2007,
through the House. This bill marks an important first step, but
NACWA believes that without a long-term clean water trust fund,
clean water agencies will be hard-pressed to carry out their
important mandate to protect the environment and public health
in a sustainable manner.
Also, to achieve water quality progress in a sustainable
manner, NACWA believes that short-and long-term changes are
needed to align current environmental laws into a
comprehensive, holistic watershed approach. In March of 2007,
NACWA formed the Strategic Watershed Task Force, made up of
leaders of the Nation's clean water agencies to investigate how
a watershed approach may still prove to be the solution to
emerging water quality issues. Adopting a watershed approach
allows communities to combine the issues of water quality,
quantity, and habitat together when forming an integrated water
resources management plan.
As a result, coordination between water related programs is
dramatically improved, the division between traditional
regulatory categories are dissolved, and communities have the
needed flexibility to make management decisions based on
achieving the maximum environmental benefit. This ensures the
most effective use of taxpayer dollars, ratepayer dollars, and
other public funding.
Many changes must occur within current water quality
management practices before a true watershed approach can be
implemented. NACWA's Strategic Watershed Task Force has
developed a number of short-term and long-term recommendations
to better facilitate a move toward a watershed approach as the
basis of America's water policy in the 21st century. These are
fully set forth in my written testimony and in NACWA's report.
It is critical to align current laws and regulations with
the watershed approach. Currently, municipalities considering
the watershed approach face regulatory and legislative
roadblocks that hamper cooperation. Different pieces of
legislation--including the Clean Water Act, the Safe Drinking
Water Act, the Clean Air Act, and the Endangered Species Act--
do not currently allow for the prioritization of watershed
needs that can result in greater overall benefits to a
watershed. Also, the separation of EPA's Office of Enforcement
and Compliance Assurance from program offices such as the
Office of Water, often results in the targeting of violations
that have little or no economic impact, creating an adversarial
relationship with those who EPA regulates.
Taken together, our recommendations represent a major
programmatic shift that is necessary to make further progress
in continuing to clean up America's waters. As we celebrate the
35th anniversary of the Clean Water Act, it is again time to
expand our focus from an almost exclusively point source
orientation to one that examines all sources of pollution, from
relying largely on technologically based standards to a net
environmental benefit approach, and from a focus on process to
a focus on environmental outcomes.
We have made tremendous progress in cleaning up our
Nation's waters over the past three and a half decades. These
successes should strengthen our resolve to complete the hard
work ahead and recommit to the Nation's water quality via a
holistic watershed approach. Even a truly holistic watershed
approach, however, cannot eliminate the massive clean water
funding gap facing the Nation's clean water agencies and
communities. Again, we must move forward to address this issue
now through a sustainable, long-term Federal, State, and local
financial partnership via a clean water trust fund. Absent such
action, the funding gap will widen and many of the water
quality gains we have achieved during the past 35 years will be
lost.
NACWA looks forward to working with this Committee to
ensure sustainable water quality progress for future
generations of Americans. Thank you, and I look forward to your
questions.
Mr. Oberstar. Thank you very much, Mr. Westhoff.
Mr. Lehner?
Mr. Lehner. Thank you, Chairman Oberstar and honorable
Members of the Committee. I am Peter Lehner, Executive Director
of the Natural Resources Defense Council, formed in 1970 and
quite involved in the passage of the original Clean Water Act
in 1972.
As someone who has enforced and implemented the Clean Water
Act for almost a decade on behalf of New York City and almost
another decade on behalf of New York State, and now on behalf
of our members in the public at NRDC, it is truly an honor to
be here with you today on the 35th anniversary of the Clean
Water Act and to honor the history of the Clean Water Act by
discussing how we can improve it.
The Act had a terrific youth and early adulthood. We see
successes around us. But while our waters did get cleaner over
the first years of the Clean Water Act, progress has now
stalled. EPA has not yet released a comprehensive water quality
inventory status since 2000, but even back then the trend was
towards increasing percentages of impaired waters. Other more
recent studies also show increasing pollution.
But perhaps that is just middle age for the Clean Water
Act, where the tools of 35 or 20 years ago are not exactly the
right ones for the current problem. What is converting this,
however, to a mid-life crisis for the Clean Water Act are
persistent efforts to weaken the Clean Water Act's protections
and by government failures to implement that Act rigorously and
fund it adequately.
Looking forward, the Act is not spry enough to handle all
of the Nation's water quality challenges alone. The Act needs
both specific tuning up and more general re-examination to
regain the momentum toward clean and safe water in the face of
our growing and changing society and our changing climate.
Prior to 1972, we had a water pollution emergency in the
U.S., much like a number of developing countries face today.
Industrial pollution, untreated sewage, and agricultural waste
degraded our waterways. Two-thirds of them weren't safe to use.
Previous laws relying on a case-by-case approach that,
unfortunately, this Administration is urging with respect to
wetland protection, had obviously failed to get the job done.
The Clean Water Act reversed that notion that discharges were
authorized unless they could be shown to cause a specific
problem in a specific water body. That was one of the principal
and most successful innovations of the Act, that changing of
the burden of proof.
The Act also ushered in a substantial infusion of Federal
money to build new sewage treatment plants and upgrade existing
plants nationwide. The dredge and fill permitting program
reduced wetland loss by three-fourths, and the law recognized
that carefully overseeing self-monitoring and swift, sure
enforcement is a key to ensuring high rates of compliance and a
level playing field.
The wisdom of many of Congress's innovations remain
apparent today. Industrial pollution sources generally have
been addressed effectively by the law's permitting program with
clear enforceable limits, self-reporting, and both citizen and
governmental enforcement. Indeed, I think it is fair to say
that the NPDS program is probably one of the most successful
environmental programs in the Country, if not the entire world.
In addition, for municipal pollution programs such as
sewage treatment and runoff, Federal financial assistance has
been a key complement to effective permits. But the Act is
starting to show its age a bit. The law today does not clearly
protect all kinds of waters, thanks to misguided
interpretations in recent years, and it never established a
truly effective system to address runoff pollution. Funding for
needed infrastructure maintenance and improvements is lagging
and far from early Clean Water Act funding levels. At our
current rate of investment, U.S. EPA has projected that sewage
pollution in the U.S. will be as high in 2025 as it was four
years before the passage of the Clean Water Act. And,
unfortunately, EPA and the Corps have failed to enforce the law
in many key respects.
Five or ten years ago, I might have stopped here, but now
NRDC is increasingly evaluating water resource trends, not just
water pollution trends, and there we are finding a disturbing
picture. There is an upward trend for beach closings, red
tides, dead zones, droughts, floods, coral reef damage,
nutrient pollution, sewage pollution. In addition, global
warming will have numerous adverse effects on available
freshwater resources.
As NRDC reported recently, experts project that global
warming will decrease snow pack in the west, reduce other water
supplies, increase the magnitude and frequency of droughts and
floods, and degrade aquatic habitat. For example, a recent USGS
study found that, as a result of climate change, large storms
that might have, in the past, come once every 100 years could
now occur every 15 or 20 years. And this causes not just
ecological damage, but will overwhelm waste water treatment
systems.
While improving existing programs that limit pollution
discharges into waterways can help reverse the disturbing
trends, the Clean Water Act also needs some new tools. The Act
needs to integrate our management of all water resources. The
distinction between water quality and water quantity is
artificial, and ultimately it is unworkable for many kinds of
challenges such as runoff, aquatic habitat, global warming, and
increasing droughts. The Act must look further upstream into
watersheds and prevent causes of degradation at their source.
We need to protect forests, wetlands, headwaters, soil, and
habitat that naturally cool the surface of the earth, capture
and filter pollution from waterways, recharge groundwater
supplies, provide aquatic habitat, and control flooding. We
need a paradigm shift. Water that falls as rain must not be
viewed as a waste to be gotten rid of as quickly and cheaply as
possible, but, rather, as a resource to green our cities, to be
put to beneficial use by industry, or to be recycled into the
earth.
The first step is to stop letting the natural resources
that safeguard our waters be destroyed. We aren't even doing
that yet.
Mr. Chairman, your Clean Water Restoration Act is
critically important in this regard. However, that bill will
only restore Clean Water Act protections that the Supreme Court
and this Administration have put in jeopardy. As was made clear
in the amicus brief before the U.S. Supreme Court, which I
authored while working at the New York Attorney General's
Office, restoring Federal jurisdiction is helpful to the
States. Indeed, that is why 35 States and the wetland managers
of all 50 States signed on to that amicus brief. But still more
needs to be done.
The second step is to address development that continues to
spread across the face of the U.S. at twice the rate of
population growth, wiping out forests, meadows, wetlands,
headwaters, flood planes, and soil. Unchecked sprawling
development destroys our sense of community, the balance of
natural systems, and our open spaces at the same time. To
address this burgeoning problem, we need to move from talking
about smart growth to implementing it and providing incentives
for it. We need to incorporate green infrastructure into
development so that it is essentially hydrologically invisible.
The same quantity and quality of water will leave an area after
development as before. We need to bring water quality
protections into all transportation planning, one of the
largest and most significant sources of water quality
impairment, and we need to restore water quality resources that
have been lost.
The third step is to start thinking of our water resources
in an integrated way and stop using approaches that merely
shift pollution from surface water to groundwater or from water
bodies to land. A more holistic approach will require major
changes in responsibilities among agencies and institutions at
the Federal, State, and local levels. This effort would require
us to integrate programs that are now largely disparate. We
urge Congress to begin to think how to move to a more cross-
cutting system, including how to provide funding and incentives
for efforts to pioneer such approaches.
In sum, the passage of the Clean Water Act was a tremendous
achievement in protecting the health and welfare of the public,
and it achieved great success in addressing some of the most
egregious water pollution problems of the day, but it is aging
and its wrinkles are beginning to show rather clearly. It is
suffering a mid-life crisis. The world is much different than
it was when the Act was last amended significantly 20 years
ago. A lot of work still needs to be done to carry forth the
mandate of the Act and to provide adequate funding for its
programs.
But even that will not be enough. We need to look again at
the protection of our water resources from first principles,
including the water cycle that we studied in grade school and
the nutrient cycle that is critical on the one hand to food
production and the other to maintaining water quality.
Together, we must begin to construct a system that will ensure
that our children and grandchildren can enjoy the many benefits
of safe and clean water as we have. We should honor the legacy
of the Clean Water Act by moving forward.
Thank you.
Mr. Oberstar. Thank you very much for your splendid
testimony.
To present our next witness, my colleague from Minnesota,
Mr. Walz.
Mr. Walz. Well, thank you, Mr. Chairman, and I truly thank
you for holding this incredibly important hearing; it is
humbling to be here with this important piece of legislation on
this anniversary, and I think aptly named, Successes and Future
Challenges.
I thank all of our witnesses and all of those who are here.
I apologize for, I guess, the House calendar here or the House
schedule that has left so many of my colleagues not here,
because this is important, this testimony is important. The
future of this piece of legislation is critically important,
and I thank the Chairman. We will hear much more about it.
It is a real pleasure for me and an honor to introduce our
next witness here, Kevin Paap. Kevin is a farmer out in the
First District of Minnesota; he is a constituent of mine. He
and his wife Julie own a fourth generation farm in Blue Earth
County, Minnesota, some of the richest agricultural land in the
world. They raise corn and soybeans, and have been active in
many issues. Kevin is here today, and I worked with him in his
capacity of Minnesota Farm Bureau President. He is going to
testify on behalf of the American Farm Bureau. He has been a
steady advocate for farm policy and rural policy across our
district.
During that farm bill process, I found one of the strongest
things in working with Kevin was the ability to educate people
in rural Minnesota, not just Farm Bureau members, but all
members, about the importance and the interconnectedness of
economics, farm policy, and the environment, and has been a
strong advocate for that, bringing those together and
encouraging people, especially young farmers and ranchers, to
get actively involved in this process like we are doing today.
Kevin stays pretty busy with all he does there. He is also an
EMT and he is a Fellow at the Humphrey Institute on Public
Policy at the University of Minnesota.
So it is a real pleasure for me to introduce a constituent,
an expert in farm policy out in rural America, and one of my
constituents that I am very proud to have here today. Kevin?
Mr. Oberstar. Before you begin, I must say that, in our
business, when you get such an introduction, the best thing is
to sit down.
[Laughter.]
Mr. Oberstar. And declare victory and go home.
But I was thinking about your glowing statement about the
rich farmland down there in Blue Earth County that all was
washed down there from Northern Minnesota during the glacier.
You know, when the glacier melted, it eroded the north land,
and that left us with the rocks and you got all the good soil
down there.
[Laughter.]
Mr. Paap. Yes, Mr. Chairman. Thank you for helping the 1st
District out with your district.
Mr. Chairman and Members of the Committee, as mentioned, my
name is Kevin Paap. As my Congressman mentioned, my wife and I
own and operate a fourth generation farm where we raise corn,
soybeans, and boys, boys being the most important crop. I am
President of the Minnesota Farm Bureau, but testifying today on
behalf of the American Farm Bureau and farmers and ranchers
nationwide. Again, I appreciate this opportunity to join in the
celebration of the 35th anniversary of the Clean Water Act.
The Clean Water Act is one of our Nation's most successful
environmental statutes, but is not alone in protecting
America's waters. Specifically, we believe that the soil
conservation and water quality provisions of the last four farm
bills have contributed significantly to the goals of the Clean
Water Act and the Nation's overall water quality protection
efforts. Our Nation's 35 year commitment to clean water has
been successful. In the mid-1970s, 30 percent to 40 percent of
the surface waters monitored met water quality goals. Today,
two-thirds of our Nation's waters meet their goals. Our glass
is two-thirds full.
Wetlands have also benefitted. From the early 1990s to the
1970s, we saw a decline in the number of wetlands; whereas, in
the most recent study period, 1998 to 2004, wetlands are
increasing at a rate of 32,000 acres every year.
After more than three decades of focus on water quality, we
have a better understanding of our most difficult water quality
concerns. Command and control regulations are not the only
solution, nor always the most cost-efficient. Local
governments, individual citizens, community foundations, State
and regional entities, environmental organizations,
agricultural organizations, soil and water districts, these are
the major players today, and they will continue to be the key
players in the future.
Farmers and ranchers have a vital stake in protecting our
Nation's water and streams, for ourselves and for our future
generations. We are proud of our record. We have a strong
history of working to see that our waters are protected, while
American agriculture remains a leader in feeding the world. We
take second place to no one in our commitment to the land and
the water where we raise our crops, care for our livestock, and
raise our families.
Let me remind the Committee that, collectively, farmers and
ranchers own and manage two-thirds of the Nation's land. We are
good stewards of the Nation's soil, air, and water resources,
but the cost of this stewardship is not cheap. Moreover, it
falls primarily on us as individuals, because unlike other
businessmen, farmers are unable to pass along our additional
costs to the consumer.
Over the last three decades, farmers and ranchers have made
great strides in improving our environment. By nearly every
measure, our environment and natural resources are in better
condition now than any other time in more than a century.
We encourage the Members of the Committee to recognize the
important roles that incentive-based programs--such as the
Conservation Security Program, the Environmental Quality
Incentives Program, the Conservation Reserve Program, the
Wetlands Reserve Program--play in achieving the goals of the
Clean Water Act. Conservation, cost share measures and
incentives are essential in providing the producers to make
environmental improvements.
Throughout the 35 year old history of the Clean Water Act,
the regulatory reach of this Act has been a controversial
aspect of the law. This debate is continuing with the proposed
Clean Water Restoration Act of 2007, which many believe would
expand the law well beyond its original scope. There is strong
support within the ag community for the goals of the Clean
Water Act, including the framework Congress established that
respects existing Federal-State relationships.
I appreciate the opportunity to offer these perspectives on
the Clean Water Act and will be pleased to respond to any
questions. Thank you.
Mr. Oberstar. Thank you very much, Kevin, for your splendid
testimony and for your thoughtful remarks, and for the many
hours, I would say, that we have spent together on this
subject, and for also your contribution that you personally and
that of the Farm Bureau to the shaping of the farm bill that
passed the House and now awaits Senate action. It is an
excellent bill.
Mr. Singleton, thank you for being here.
Mr. Singleton. Thank you, Mr. Chairman and Members of the
Committee on Transportation and Infrastructure. I am Mark
Singleton. I live in Sylva, North Carolina, and I am Executive
Director of American Whitewater. Founded in 1954, American
Whitewater is the national membership organization that
represents whitewater enthusiasts and river conservationists
around the Country. Our organization is the primary advocate
for the preservation and protection of whitewater rivers
throughout the United States. Our mission is to conserve and
restore America's whitewater resources and enhance
opportunities to enjoy them safely.
Today, I am testifying as Chairman of the Outdoor Alliance,
a coalition of six national member-based organizations devoted
to conservation and stewardship of our Nation's lands and
waters. The Outdoor Alliance includes the Access Fund, American
Canoe Association, American Hiking Society, American
Whitewater, and the International Mountain Bike Association, as
well as the Winter Wildlands Alliance. Collectively, the
Outdoor Alliance has membership in all 50 States and a network
of almost 1400 local clubs and advocacy groups across the
Nation.
I grew up paddling, and some of my earliest memories are
family canoe trips on Northwood Lakes. As a paddler, I have had
the opportunity to explore headwater streams and rivers around
the Country and the world, and through these experiences I can
speak firsthand about the benefits of clean water to
recreational users and whose communities are dependent on
experience-based economies where water quality shapes the
destination for quality outdoor human powered recreation.
These days, my wife and I are passing along our love of
rivers and the outdoors to our two daughters. Our kids enjoy
their time on the water and anything that floats: inner tubes
on Deep Creek Lake in the Great Smokey Mountain National Park
to rafts and kayaks on the Nantahala and Tuckaseegee Rivers.
Most think of the Clean Water Act as a law that keeps our
waters from becoming polluted. While this is certainly true,
fortunately, the framers, including yourself, of this
legislation not only realized that clean water in America's
streams, rivers, lakes, and wetlands keeps natural ecosystems
in check, but clean waters also nourish our bodies and our
souls. Without the provisions of the Clean Water Act that
protect water quality and water quantity, it is doubtful that
my two girls would have the same river experiences that I have
had.
When the Clean Water Act was enacted 35 years ago, many
rivers were so polluted that they were generally undesirable
for outdoor recreation. The Cheat River in West Virginia was
effectively dead. As a river guide on the Cheat in the late
1970s, I remember days when the river would run orange from the
runoff of mining operations on its headwaters. Paddlers have
witnessed a tremendous recovery of wildlife in the river canyon
with bears, deer, and even river otters now calling the river
home.
And let me come off my page here for a second and say that
many of our American Whitewater members now paddle the Cuyahoga
River in Ohio as well.
Clean water is both a function of water quality and water
quantity, and let me explain what this means from a paddler's
perspective and relay a story that happened near my home in
western North Carolina. The Cheoah River was dammed and
diverted through a massive pipeline in 1928 for hydroelectric
production. Generations came and went. Our resource extraction
and manufacturing economy came and went, and by the dawn of a
new millennium in Graham County, through which the Cheoah
flows, it was the third poorest county in North Carolina.
About 10 years ago, the 50 year old Federal license on the
Cheoah dam neared its expiration and was finally due for re-
licensing. This time, in a world that had the Clean Water Act,
as one of the re-licensing stakeholders, American Whitewater
helped secure test releases of water into a barren riverbed, so
that paddlers could explore and assess the quality of the
river.
What we found surprised everyone involved. The Cheoah was
not merely a good recreational resource, it was a fantastic and
utterly unique resource, and I would have to say, probably the
best in our region. With support of the Clean Water Act, we
helped negotiate a new license for the dam that included
variable year-round flows based on the natural hydrography. In
September of 2005, the gates to the dam were opened and they
will stay that way for the next 40 years.
The new flows have fostered an honest to goodness
whitewater boating economy in Graham County, with each
recreational release day contributing $15,000 to the local
economy, which adds up, considering there are 18 new releases
per year. The Clean Water Act allowed the State of North
Carolina to give the Cheoah River back to Graham County.
While the Clean Water Act has been a tremendous success
both in addressing water pollution and restoring flows,
significant challenges still remain. In a recent survey of our
membership, approximately 70 percent of respondents reported
health effects from paddling on polluted rivers. Sinus and ear
infections are the ongoing health issues that affect most
paddlers.
In closing, I would like to make two points. First, while
the Clean Water Act has been a great tool for restoring rivers
and addressing pollution issues, we still need assistance from
Congress to make sure the key provisions of the Act are not
weakened. Of particular concern is the 2006 Supreme Court
decision that left the fate of our Nation's headwater streams
in legal limbo. Specifically, the Court narrowed protections of
the Clean Water Act to navigable waterways, leaving headwater
areas unprotected. Regardless of their navigability, headwater
reaches are important for all forms of outdoor recreation. The
Clean Water Restoration Act of 2007, H.R. 2421, would restore
those full Federal protections for our rivers and streams.
Second, the Clean Water Act is landmark legislation that
anchors our Country's natural resources and has created this
ongoing legacy of stewardship for rivers and streams. From our
perspective as outdoor enthusiasts, the Clean Water Act
represents a triple bottom line. It has been good for the
rivers and their ecosystems, it has been good for recreational
users who spend their wet dollars in local communities. And it
has been good for communities who are dependent on experience-
based economies, where clean rivers are the destination.
Mr. Chairman, Members of the Committee, thank you very much
for allowing me to make those remarks.
Mr. Oberstar. Thank you for that very inspiring,
heartwarming account of the rebirth of the Cheoah River.
Mr. King?
Mr. King. Chairman Oberstar, Ranking Member Mica and
honorable Members of the Committee, my name is James King, and
I am president of the DeKalb Pipeline Company, based in
Conyers, Georgia. I am a water and sewer contractor doing
residential site development work around Metro Atlanta.
I am grateful for the opportunity to participate and
testify in this hearing as President of the National Utility
Contractors Association, also known as NUCA. NUCA is a family
of more than 1,700 companies made up of contractor members,
suppliers, manufacturers, people that maintain, build, repair
the Nation's underground water infrastructure, as well as gas,
electric and telecommunications systems.
It is a privilege to participate in the celebration of the
35th anniversary of the 1972 Clean Water Act and to discuss the
progress that has been made since its passage, as well as the
continuing challenges facing America's underground
environmental infrastructure. We have come a long way from the
horrific images of burning rivers and waterways of the 1970s,
but the gains are threatened by the lack of attention to our
environmental infrastructure in recent years.
I want to reiterate NUCA's support for your ongoing efforts
to keep the goals of the CWA on the priority list of the U.S.
Congress. NUCA serves as chair of the Clean Water Council, CWC,
a coalition of 30 national trade organizations representing
underground construction contractors, design professionals,
manufacturers, suppliers, labor representatives and others
committed to ensuring a higher quality of life through sound
environmental infrastructure. For your reference, a list of the
CWC members is attached to my written testimony.
I am here today to give you the perspective of a utility
contractor, those who work in the water and wastewater systems
every day and see what it looks like when they fail. Mr.
Chairman, I know you agree that the decrepit condition of this
infrastructure is quickly becoming an environmental crisis.
Take this testimony from someone who sees it up close and
personal every day, the view from the trenches isn't pretty.
For their everyday work, utility contractors build and
repair America's un-glamorous but critical water and wastewater
infrastructure. What is out of sight and out of mind to most
people is clearly visible to NUCA and its members who are
working in the ditches every day.
For example, just recently my company was called on to do
an emergency repair of a sewer system that failed in a shopping
center parking lot. This failure came to light because the
apartment complex that was downstream starting notice an
increased flow through the stream that runs through their
apartment complex. As they started looking, trying to figure
out where that flow was coming from, there was also a strong,
pungent odor. The odor was raw sewage that was running from the
broken sewer line upstream.
We started work on this repair early on a Friday afternoon
and worked all through the weekend trying to solve the problem.
The sewer line was 35 feet deep, and once we had excavated to
16 feet deep, the ground started acting like a sponge. It
started losing raw sewage back out from the time that the line
had been broken and just saturated the ground. By the time we
got down to the bottom of the pipe where the break was, we were
standing in four feet of raw sewage. And then as we started
trying to fix the problem, the pipe really started crumbling
like a cookie as we chased it back up into the parking lot. I
have no doubt that that line will need repair again, as we only
fixed a small part of it.
I realize that the Committee is well aware of the needs
facing our wastewater infrastructure, recognizing that Federal
funding to address this problem has been recently cut from
already low levels. You can't come away with a sense that our
clean water needs are being appropriately addressed.
I do want to focus a little bit on the economic benefits
that come from funding projects under the Clean Water Act.
Investing in this infrastructure increases public health and
safety and helps protect the environment. But it also serves to
maintain a strong economic foundation in a variety of ways.
First, there is job creation. According to several sources,
including the American Public Works Association, more than
40,000 jobs are created with every $1 billion that is invested
in projects to improve this infrastructure. Several positive
impacts on local economies result from this funding, including
direct impacts, jobs created in order to conduct the
construction project. You need to remember, it is very
important to remember that these are quality, high-paying jobs
that can't be outsourced overseas. They are provided right here
in America for American workers.
There are also indirect impacts from the purchase of
materials and supplies. Manufacturers, distributors and
suppliers all benefit from economic impacts. Economic benefits
don't stop with the construction industry. Induced impacts are
supported by spending and re-spending of the workers that are
working on these projects. Induced impacts are often referred
to as the multiplier, or the ripple effect. Increased economic
activity resulting from funding these projects ripples through
local economies and benefits several sectors outside of
construction.
I had the opportunity earlier this week to see this first-
hand in Portland, Oregon, where the Kiewit Corporation is doing
a major CSO tunnel. It is right along the east side, it is
called the East Side Big Pipe CSO. Kiewit has relocated almost
200 workers to the Portland area that are now ratepayers on the
system that they are working to repair.
Inevitably, these economic enhancements collectively help
expand the local tax base, making communities all the more
attractive. In March, this Committee passed legislation that
would authorize $14 billion for Clean Water SRF over the next
four years. I want to reiterate the support of NUCA and the
Clean Water Council of your bill, which would provide immediate
resources over the next few years while seeking long-term
solutions.
The CWC is pushing hard for introduction and action on the
Senate SRF bill. NUCA and the Clean Water Council applaud the
progress the Committee has made in the 110th Congress to
advance several pieces of legislation and support that goes
with the Clean Water Act. Although the purpose of that extends
far beyond financing projects to repair water and wastewater
infrastructure, it is a significant function of the Act and one
that has been in large part neglected by the Federal Government
in recent years.
The Minneapolis Bridge collapse provided new attention to
America's failing critical infrastructure. Our infrastructure
is as interlocking as it is interdependent. Thank you for
making sure that what is out of sight will not necessarily out
of mind on Capitol hill.
Thank you for the opportunity to submit testimony for the
record, and I am happy to answer any questions you might have
about how these systems are built or about the economic
advantages that come with Clean Water funding.
Mr. Oberstar. Thank you very much, Mr. King. I greatly
appreciate the contribution of the Underground Utility
Contractors Association, NUCA. As we moved the legislation
through Committee and through the House to reauthorize the
State Revolving Loan Fund Program, increase its funding up to
$14 billion, we said to the earlier panel, we started out with
$20 billion, but we had to scale that back because of concerns
about the pay-go issue and offsetting funds against that
amount. But if the Senate would just move a little faster, that
bill could be on the President's desk and we have no indication
of objection, of a veto threat by the Administration, although
there were some grumblings about it. But because we have fully
offset it, I think this Administration would sign it.
I want to thank you very much, and I also want to express
at this juncture my continued sense of loss over Scott Hanson,
the NUCA Director for Minnesota, Executive Director for
Minnesota. He did extraordinary service for your association.
It is also ironic that on this day that we celebrate the
enactment of the Clean Water Act, in the course of a veto
override, that we had another vote today on a veto of the
President. We did not succeed in overriding the vote on the
Children's Health Insurance Program, although there was a good
deal of bipartisan support to do so, we didn't reach the
threshold required, a two-thirds vote. It just shows how
difficult it is to overcome a Presidential veto.
But on this issue, children's health, such a very big,
important question for all America, clean water is more
important than any other issue on our agenda in the early
1970s. And it brought together not just a consensus, but an
overwhelming support for this question of available water for
all Americans.
A common theme throughout the testimony of this panel has
been watershed, the watershed approach to managing the future.
Ms. MacBride, to what extent have members of the Garden Club
looked at this issue from this broader scope, not just stream
by stream, river by river, lake by lake, but where the water
originates? What are your thoughts about this?
Ms. MacBride. Well, I appreciate the question, and although
I am not an expert, we do have many vice-chairs that do copious
amounts of research in this area. Just to put it briefly for
you, I think that everything is connected in this regard,
starting at the watershed, which ends up having a huge effect
at the end on our drinking water and filtering pollutants.
I think from what we are talking about today, too, one of
the big problems seems to be, which I briefly mentioned in the
testimony, is the visibility of some of the streams and
tributaries that have come down and that have seasonal water.
What I can just say to that is that we feel also very strongly
that from the watershed on down, even when you find those dry
areas, and I have this on pretty good authority that there is
oftentimes, most often in fact, subsurface water and not
necessarily significant subsurface, just below the surface. And
these all extend and flow in the same direction and attach to
the major waterways. And you can see that when you see
vegetation there, when it appears to be dry. You can even see
it when there is nesting that goes on in seemingly dry areas.
So I think that it is very important from the watersheds
throughout the whole system to think of it as one connected,
very integral system.
Mr. Oberstar. Thank you.
Mr. Westhoff, you touched on a theme that is gaining a
great deal of interest and support, and that is establishing a
clean water trust fund. Now, we have the Aviation Trust Fund,
which was established in 1970, the Highway Trust Fund, which
was established in 1956. The Inland Waterways and Harbor
Maintenance Trust Fund was established in 1978.
They all have a revenue source, they have one thing in
common, there is a source, there is a fuel tax on the
waterways, there is a fuel tax or user fee for the Highway
Trust Fund, there is a passenger fee for Aviation Trust Fund.
Where do we get the revenues, what thinking have you done among
your members of the clean water agencies, a common source for a
dedicated revenue stream to fund this vital need of ours?
Mr. Westhoff. Well, Mr. Chairman, I think you have
certainly hit on probably the most difficult hurdle to getting
to a water infrastructure trust fund. Because you certainly
cited to a number of examples where trust funds have been
utilized to help maintain the Nation's vital infrastructure.
I know that NACWA has looked at a number of potential
sources, and I know that we are certainly open to exploring
them with this Committee, and certainly on the Senate side. I
don't think we have reached a conclusion as to what is the most
viable source of revenue to support it. I think what we
certainly have done is, we have reached the conclusion that
there is a need for it. The problem with our infrastructure for
the most part is that it is out of sight, and therefore in many
people's minds, out of mind.
In addition, we are dealing with a subject matter that
isn't really the most popular conversation at cocktail parties
or dinner parties. We are dealing with the waste stream of
America. And yet every day, people literally want to flush it
and forget it, and yet my agency and all of our neighbor
agencies can't do that, because 365 days a year, 24 hours a
day, we have to be there to receive that waste, and we have to
convey it, we have to treat it.
So I think the need is obviously there for Federal support,
for what we do with this infrastructure. But I don't think we
are at the point where we are able to look you in the eye and
tell you that we have an identified source of the revenue
necessary to maintain that trust fund. I will promise you this,
we will sit down with the Members of the House and the Members
of the Senate and work with them to try and find one that is
even-handed, one that does not burden one set of individuals
over another but hopefully will provide us with a source of
revenue to close that funding gap that has been articulated in
so many past references and talked about in our latest
rendition.
Mr. Oberstar. NACWA's ``Recommendations for a Viable and
Vital 21st Century Clean Water Policy'' is a splendid document,
and well written. I have had the opportunity to skim through
it, and I will digest is more fully later.
You mentioned something, Mr. King, as well, your work is
very underground. My predecessor, John Blatnik, once observed
that we probably ought to require all water and sewer lines to
be built three feet above ground so people will bump into them
and see that they are there and see what you have done for
them. You build a highway, people see it and drive over it. You
build an airport, they fly on it. You improve the locks on the
waterways, they know it is there.
But the water and the sewer lines are out of sight, and
they are also deteriorating out of sight.
Mr. Westhoff. That is very true. I give tours, we give lots
of tours of our treatment facilities. But even there, people
want them screened off from public view. But we are trying to
educate the youth in our community about the need for this
infrastructure. When we were constructing some of our big
interceptor sewers, I actually went down inside the sewer,
because from my perspective as legal counsel for the Department
of Public Works, the more I know about our infrastructure, the
easier it is for me to be their lawyer and to understand when
my engineers talk about their needs, to be able to express that
to the general public and other arenas where I get to talk.
So it is an important infrastructure and it is certainly
something that is on my mind. We would like to see it be on the
minds of the general public.
Mr. Oberstar. Now, I asked the question earlier, I want you
and Mr. King to comment on this of Mr. Grumbles, about the
proposal the Administration has for water enterprise bonds. And
our experience in this Committee four years ago moving to lift
the cap on private activity bonds so that municipalities could
borrow the money they need without limitations, and go to the
market. I heard Mr. Grumbles now say that oh, the
Administration has really made a turnabout on this issue, the
Treasury Department has come around to in fact observe that
while there may be a short-term loss of $200 million, long-term
there is a $2 billion to $5 billion annual gain in revenue from
these, from lifting the cap and using private activity bonds,
including their new proposal for water enterprise bonds.
What are your thoughts about that method of financing the
construction needs in our sewage treatment program?
Mr. Westhoff. Let me preface my statement by telling you, I
cut my teeth when I first got to public works on the Clean
Water Grants Program. So when I started as a public works
lawyer over 25 years ago, the Clean Water Grant Program was
sort of the foundation upon which we were doing it. And
certainly, the City of Los Angeles took advantage of the Clean
Water Grant Program. I was disappointed when the President took
the funding out of that program and we transitioned it to a
loan program.
Mr. Oberstar. I can tell you, I am going to interrupt you
just momentarily, I can tell you that moment in 1981 in June on
the Reconciliation Act, on the Reagan budget, we met in
conference in the Capitol, the exact center between the House
and the Senate. Senate conferees were on one side, there was a
Republican majority and the House conferees on the other side.
While we had a unified position in the House, I asked Senator
Stafford for the Senate position on scaling back to $2 billion
from $6 billion.
Then in the following year of eliminating the grants and
substituting a loan program therefore. He just looked at me,
and he said, the Senate position is five to four against the
House position. And I looked over at Senator Jennings Randolph,
one of the grand names and leaders of the Senate, and I said,
but you didn't even ask Senator Randolph. He said, I can, but
the vote will still be five to four against the House position.
Mr. Westhoff. I can tell you, if I were to create a
hierarchy in my mind, grants would be certainly at the top of
that list, loans would come second, and the private activity
bonds would be somewhere further down that list.
I live in an urban area and work for a municipality that
has the ability to go into the financing market and float
bonds. Because we have a tremendous track record, we have a
dedicated source of revenue. That is our ratepayer revenues
that we collect from our ratepayers. So we actually have the
benefit of low interest rates, because we have triple A rated
bonding capacity. I am not sure that all of the communities
across this Country have that same benefit. So maybe the
private activity bonds may be a source, potentially, for them.
But from my perspective, it is not the answer to the problem.
It is not----
Mr. Oberstar. It is certainly not for the small
communities, by small I mean under 10,000, of which we have a
plethora in Minnesota and elsewhere around the Country. If they
can band together in a regional cooperative association of
municipalities, they might be able to do it. But one by one
they can't.
Mr. Westhoff. I don't think private activity bonds are the
answer to this problem. It seems to be the one that the agency
is sort of latched onto. I think NACWA has been pretty clear,
of our broad-based support for a trust fund and for working to
achieve a revenue source to support that trust fund. But we do
not believe that private activity bonds are the answer to the
question.
Mr. Oberstar. Thank you.
Mr. King, your members are deeply engaged in this issue.
Mr. King. I think the bottom line for us is, we are looking
for funding wherever we can get it. However, I do agree, I
think the private activity bonds are probably not the ultimate
answer. I think they could be a source, that they could be a
tool to be able to help some of these cities to be able to
refurbish their infrastructure.
We are very much in favor of getting the funding back and
utilizing the SRF. The SRF is a good program, it is a program
that continually the money revolves, it comes back to the
Government and it just builds. To us that is probably the best
tool that is out there.
Mr. Oberstar. It is a dedicated stream and it is
dependable. It is an available resource, financial resource out
into the future that municipalities can count on.
Mr. King. I agree. I think that is probably our number one.
But I think that again, from the contractor's standpoint, and
you made the comment that sewer lines and water lines are
buried. I mentioned being in Portland earlier this week. One of
the obstacles that they were encountering when they were laying
right down a city street alongside a water line that was
installed in 1911, what do you think that might have been made
out of?
And their concern was that one line was going to blow out.
You saw the steam line in Manhattan back in the summer. What is
down in the ground is not seen by the American public. I can
tell you from a contractor's point of view, it is in bad shape.
And these cities, they need some real help in how they are
going to solve their problems. I don't know that there is a one
size fits all. I don't think that there is a one answer that
accommodates all of it.
But I think that there has to be some hard looks at what
the solutions are.
Mr. Oberstar. Thank you.
Mr. Lehner, I liked your comment about the Clean Water Act
may be having a mid-life crisis. We need new tools. Is the
watershed approach one of those new tools? And why is the
watershed approach important?
Mr. Lehner. It is one of the new tools, if it is done
right. That is a very big if. This is really for three reasons.
One is that you have to include all sources of water quality
degradation, which is both water quality and water quantity.
That of course relates to your bill, the Clean Water
Restoration Act. You have to go all the way upstream to all the
tributaries, to all the sources, all the sources of protection
of that water, including obviously the wetlands that are in the
watershed, and not draw artificial distinctions based on size
or whether there is a permanent flow. In many areas, there is
quite a connection, but it may only be half the year or a third
of the year. But it is still very much of a water quality and
water quantity connection. So the watershed approach in one
part means you have to go all the way up and take every source
in the whole area.
The second is that it means getting all the sources. Right
now, a big challenge has been, frankly, that point sources have
been pretty well covered, and non-point sources, runoff, have
been pretty poorly covered. There are exceptions, obviously,
but that is the general rule. I think what you are hearing from
many, particularly the point sources, is we need a stronger
program for the non-point sources.
So if the watershed approach means making a more level
playing field and bringing all the sources in, not by weakening
protections and weakening safeguards applied to point sources,
but by strengthening the ones that apply to non-point sources,
which is frankly what many would often argue for, then the
watershed approach can be very important.
Then I note that of course the Clean Water Act in its
wisdom does actually have a watershed approach. The Total
Maximum Daily Load program is in fact a watershed approach. And
it has been largely existing on paper and only very slightly
implemented around the States. We clearly need additional
funding and additional seriousness for the TMDL program.
But again, what is critical there, even that program
embodies this dichotomy between point sources and non-point
sources. We have to break that down so it is not, let's have a
total, find out what the watershed can take and then force all
the point sources to bear the burden or pay the non-point
sources.
Lastly, I think it is a critical difference to recognize
reality. Theory is what existed before 1972, which the theory
beforehand was, let's see where there is a problem, analyze
backwards, see what the sources of the problem are and correct
them. That theory didn't work. What the clear, real wisdom, the
brilliance of the Clean Water Act was having the shift and
saying, no, you can't pollute unless you prove that it is okay.
And that shift was critical.
Similarly, one likes to say that well, let's have a very
detailed program where to deal with the watershed you can have
all sorts of trading and all sorts of detailed analysis. The
State agencies are overwhelmed, the local agencies are
overwhelmed. They can't do that unless there are some
administrative measures to make the process go faster, have
some presumptions that are based in science and based in
reality and let the permitting process move forward quickly.
Mr. Oberstar. Thank you very much. You summed up what we
spent 10 months debating in the conference in 1972, 1971 and
1972 on the Clean Water Act, and arrived at those conclusions.
Mr. Paap, Kevin, you seemed to suggest in your testimony as
agriculture works to increase its productivity and requires
more inputs of fertilizer and limestone, perhaps, and other
activities depending on the soil, that there is runoff and
water quality goes down. Is there necessarily an internal
conflict here? Is this a zero sum game that improvement in
agriculture productivity necessarily leads to a decline in
water quality, or that protection of water quality must result
in a decline in agricultural productivity?
Mr. Paap. Mr. Chairman, as you talked about productivity, I
think back to about a week ago, we are right in the middle of
harvest now in Southern Minnesota, corn harvest. On our farm, I
typically run the combine and my wife runs the tractor and
grain cart. We dump on the go to harvest a little more
efficiently, which means you both kind of go at the same speed.
If you don't, you have the opportunity to feed the pheasants
and the deer a little bit by missing the wagon.
About a week ago, she got out of the tractor and she walked
over to the combine and looked at me, and said, you know what
we need here is more cooperation and a whole lot less
confusion. I think maybe that is kind of where we are in
agriculture. We are committed to work together in a
cooperative, constructive way. I think as you know, Mr.
Chairman, agriculture has changed. Agriculture looks different
than it did when I got out of ag school in 1981, where we have
seen a reduction in the plowing and the tillage methods. We now
have no-till, reduced till, minimum till. With the high energy
prices, the first thing we have learned on the farm is manure
is an asset. It is a very valuable nutrient. And as we look at
nutrient management plans on the farm and implementing best
management practices and soil tests, probably the GPS or the
computer, as we see the GPS in our automobiles, remember, it is
exactly the same in our combines, where we can go ahead and do
site-specific and we know where we are in the field, and only
apply those nutrients in areas where we need them.
And there is an expense to that. As I mentioned in my
testimony, expenses are a lot in agriculture. I think
agriculture has changed where we are looking at not only soil
erosion but water quality, air quality, wildlife habitat. I
think we do have a role. Agriculture, American Farm Bureau, we
want to be part of the solution to this and not be perceived as
part of the problem. We want to be committed to make sure that
we sit down and have that open dialogue and find out, what is
the science, what can we do, what can't we do. We need to have
that scientific discussion.
Mr. Oberstar. In short, you would say there really is not
an internal contradiction here, the two can be mutually
beneficial, with application of modern scientific methods of
mapping out the soils and the soil consistencies and giving a
guy like Burt Peterson of Peterson's mill up in North Branch,
who knew every acre of soil in the county and surrounding
counties, that you can adapt to the needs of the land and not
result in adverse effect on water quality.
Mr. Paap. The great thing about agriculture is it is
renewable. And it is one big circle, whether we tend to our
livestock, we have those nutrients from our livestock as we put
those back on our soil, that helps to grow us the next crop. We
have mother nature and great solar power from mother nature,
and it is a renewable resource, whether it be animal
agriculture or the biofuels, we can make that process work. We
can make that work good for the environment.
Mr. Oberstar. I mentioned earlier the common theme through
the testimony here and in the first panel of watershed approach
to maintaining, establishing and maintaining water quality.
Agriculture depends on watersheds. Agriculture depends on
having high quality of water. I met with the Kanabec County,
Chisago, Isanti County, Pine County farm bureau representatives
back in 1987, 1988. We were talking about non-point source
legislation. And the Snake River runs through those areas. Each
one of them said, well, if you are not maintaining your quality
upstream, and your cattle are discharging it to the stream that
I am using that water down below and it is not good for me or
my livestock or my farm, they all came to the realization that
we have to work together in this watershed to sustain high
quality water that agriculture and our livestock need. Is that
the current view?
Mr. Paap. You are exactly correct, Mr. Chairman. Water does
not recognize or honor jurisdictional lines, whether it is a
county line, a State line. Water kind of goes where it wants
to. And we all need to work together. What works best in
Minnesota and I think work best for agriculture all over is the
voluntary, incentive-based programs. But they need to be
locally designed and implemented, because there are differences
in different watersheds. We need the technical and financial
resources.
But it is, just like agriculture is a big cycle, so is the
water. We can't do anything in agriculture without water. We
also can't do anything in agriculture with too much water. So
it is a fine balance that we need to work together on.
Mr. Oberstar. And we need water in the forestland of
Northern Minnesota, and we have had way too little of that this
year, we are down 12 inches in the north land. It is just
devastating. We are finally getting some moisture. You got all
of it down there in Southeastern Minnesota, all in two days I
think it was, or three days.
One of the issues that recurs in the issue post-SWANCC and
post-Rapanos is management treatment of prior converted
cropland. How do you define prior converted cropland within the
context of the exceptions in the Clean Water Act?
Mr. Paap. As we look at wetlands, and I guess I would go
back to my wife, again, more cooperation, less confusion. It is
hard to understand determinations of wetlands and to do that.
It is a scientific basis. Those of us in agriculture, because
there is a fine line, because we need moisture, but we also
need to have adequate conservation drainage, adequate in our
farms. Those prior converted farmlands are very important. That
is how I make my living, that is how we pay the bills on our
farm, how we pay the college tuition.
We want to make sure we have that balance and that if it is
a prior converted, it has been determined prior converted, that
that land, which is, I am fourth generation, my sons are fifth
generation, we want to continue to farm that in the future. We
want to make sure we have the rights to do it environmentally
friendly, to do it the right way. But we want to be able to use
our prior converted farmland to feed not only the U.S. but feed
the world.
Mr. Oberstar. As long as it is in your hands and those of
other farmers, it is going to be managed, it is going to be
conserved and passed on to the next generation. But what
happens when, as is so prevalent in Chisago County, Isanti
County and others, where exurbia is pressing out into
agricultural Minnesota, and farmers are selling their land and
it is no longer going to be used for agriculture? At what point
does that protection then disappear?
Mr. Paap. I think we have to protect our resources, no
matter what we use them for, whether it is to raise corn and
soybeans, whether it is a pasture, whether it is a parking lot
or a subdivision. We need to make sure we protect our
resources.
That is a good thing about agriculture, as productivity is
increasing, technology, we are raising more crops on less
acres. The reason we are doing that is because we have to,
because we are losing those acres to urban development, to that
sprawl. We have to have smart growth, but we also have to have
smart agriculture to use that technology, whether it be
biotechnologies or the new sciences to make sure we can feed
the U.S. and the world.
Mr. Oberstar. Thank you very much. California is a very
good example of that. My son lives in Sacramento, and I go out
cycling with him in the countryside, and garden parkway. Every
time I am out there, there is a new housing development and
fewer agricultural acres. You are losing watershed and losing
the great open space. But that is what is happening with
development. But along with it comes the loss of water
retention in the land, having more runoff.
Mr. Westhoff. Absolutely, Mr. Chairman. That is the
difficulty you have. People wouldn't be building houses if
there weren't other people to buy those houses. So the demand
for housing obviously drives the construction.
But it has to be done in a smart way. In Los Angeles, we
have our stormwater permit which requires us to develop SUSMPs,
which are standard urban stormwater mitigation programs, to
require that new construction do more to maintain permeability
on the soil, do more to keep at least the first flush of a
storm on a development. That is absolutely sort of the bible
for how we have to approve new development that goes on in the
Los Angeles area. That can act as a model that needs to be
taken care of in California. California seems to be on the
cutting edge of a lot of these issues, but we are dealing with
stormwater and attempting to do it in a holistic way.
What isn't happening is that stormwater, wastewater and
water quantity, water supply aren't getting together. Both
silos still exist at EPA and those silos still exist in the
real world. But in Los Angeles and in California as a whole, we
are dealing with stormwater in a better way. It doesn't mean
that it is addressing the issue of lost farmland. But we are
trying to at least do some smart development, permeable
pavement, green streets, things that are starting to be part of
the green infrastructure movement in this Country and across,
in California and across the Country. Oregon, Chicago, there
are a lot of them popping up all over the United States, where
they are implementing soft solutions for those problems.
Mr. Oberstar. I think those are very significant
developments, especially in shopping centers, permeable
pavement adaptations. A friend of mine was a long-time
specialist with the U.S. Geological Survey, assigned to
California, and given a challenge to measure rainfall that they
had noticed in creeks and ditches, very high levels of water.
But they were puzzled about it, because the rainfall
measurements did not seem to be increasing.
So he, with his team, went out and measured creeks and
ditches and small rivers in various places around the State and
came back with, I will shortcut it all, with a report that he
also looked at housing development and shopping center
developments and other broad-scale paving over of the land and
found that all that water was running off. Rainfall hadn't
increased, runoff had increased. Less water was soaking into
the ground. There was less groundwater recharge. That is a
serious problem which you can attack with permeable pavement
and retention facilities and others.
Ms. MacBride?
Ms. MacBride. Thank you. I just wanted to make one brief
comment, I have to say, is that my father-in-law was very
instrumental in getting the bike trail in Sacramento along the
American River many years ago.
Mr. Oberstar. I have bicycled on it. Very good.
Ms. MacBride. He was a judge appointed by Kennedy. He loved
biking as well.
But what I was really going to tell you is, the Garden Club
of America's Conservation and NEL committees took a trip just a
couple of weeks ago to Montana. And we learned many, many
interesting things, but one of the things I just wanted to
mention in regard to agriculture is that there was really many,
many people testifying to us about the benefits of conservation
easements and how they had gotten State and local groups and
private landowners together to keep the land in the family as
was being spoken about earlier, so that you can farm it and it
won't end up being a strip mall, and yet still preserve it and
there are tax benefits and all that kind of thing.
So I just wanted to throw that in, in reference to the
strip malls.
Mr. Oberstar. Thank you very, very much. Thanks to all of
you, Mr. Singleton, especially for your citing the economic
benefits of reopening a dam and restarting whitewater
activities. We hear so much about the costs. But you cited the
benefits, financial, economic benefits of clean water, and we
are very grateful to you, and grateful to all of the witnesses.
Mr. Singleton. Thank you very much. It has been a pleasure
to be here. I might add that American Whitewater has been
involved in projects like that across the Country, whether it
be the Feather River in California, the Tallulah River in
Georgia. So there are a number of those success stories out
there.
Mr. Oberstar. Well, on a concluding note, let us hope that
the next 35 years show continued progress and protection of
this precious resource, that we pass it along to other
generations. A friend of mine was camping in Alaska some years
ago and had a campsite where they were settling down for the
night and building a campfire. There was a sign on the
woodpile, it said, ``Take all you need. But when you leave,
make the pile a little higher than you found it.`` That is our
charge with clean water.
Thank you all. The Committee is adjourned.
[Whereupon, at 3:55 p.m., the Committee was adjourned.]
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