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



 
                THE CLEAN WATER RESTORATION ACT OF 2007

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

                               (110-116)

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 16, 2008

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure



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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

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

                                  (ii)

                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................    vi

                               TESTIMONY

Adler, Professor Jonathan H., Director, Center for Business Law 
  and Regulation, Case Western Reserve University School of Law..    48
Albrecht, Virginia S., Partner, Hunton and Williams, LLP, on 
  behalf of the Waters Advocacy Coalition........................    48
Buzbee, Professor William W., Director, Environmental and Natural 
  Resources Law Program, Emory Law School........................    48
Card, Joan, Director, Water Quality Division, Arizona Department 
  of Environmental Quality.......................................    96
Cope, Hon. Robert, Commissioner, Lemhi County, Salmon, Idaho, on 
  behalf of the National Association of Counties.................    71
Cruden, John C., Deputy Assistant Attorney General, U.S. 
  Department of Justice, Environment and Natural Resources 
  Division.......................................................    10
Gerber, Darrell, Clean Water Action Alliance of Minnesota........   117
Grumbles, Hon. Benjamin H., United States Environmental 
  Protection Agency, Assistant Administrator for Water...........    10
Hulsey, Hon. Brett, Dane County Supervisor, District 4, Madison, 
  Wisconsin......................................................    71
Jacobs, Hon. Kristin, Broward County Commissioner, District 2, 
  Fort Lauderdale, Florida.......................................    71
Lancaster, Chief Arlen, United States Department of Agriculture, 
  Natural Resources Conservation Service.........................    10
Matthiessen, Alex, Hudson Riverkeeper and President, Riverkeeper, 
  Inc............................................................    96
Munks, Hon. Don, Skagit County Commissioner, District 1, Mount 
  Vernon, Washington.............................................    71
Petersen, Chris, President, Iowa Farmers Union...................    71
Pifher, Mark, Director, Aurora Water, on behalf of the National 
  Resources Association, the Western Urban Water Coalition, and 
  the Western Coalition of Arid States...........................    96
Quinn, Jr., Harold P., Senior Vice President, Legal and 
  Regulatory Affairs, National Mining Association................   117
Recker, Tim, Iowa Corn Growers...................................   117
Runbeck, Linda, American Property Coalition......................   117
Shaffer, Carl, President, Pennsylvania Farm Bureau...............   117
Squillace, Professor Mark, Director, Natural Resources Law 
  Center, University of Colorado School of Law...................    48
Tierney, James M., Assistant Commissioner for Water Resources, 
  New York State Department of Environmental Conservation........    96
Trout, Robert V., Trout, Raley, Montano, Witwer and Freeman, P.C.    96
Woodley, Jr., Secretary John Paul, Assistant Secretary of the 
  Army for Civil Works...........................................    10

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Altmire, Hon. Jason, of Pennsylvania.............................   140
Bishop, Hon. Timothy H., of New York.............................   141
Boozman, Hon. John, of Arkansas..................................   142
Carnahan, Hon. Russ, of Missouri.................................   145
Cohen, Hon. Steve, of Tennessee..................................   148
Costello, Hon. Jerry F., of Illinois.............................   149
Ehlers, Hon. Vernon J., of Michigan..............................   151
Gilchrest, Hon. Wayne T., of Maryland............................   156
Mica, Hon. John L., of Florida...................................   158
Mitchell, Hon. Harry E., of Arizona..............................   163
Rahall, II, Hon. Nick J., of West Virginia.......................   166
Shuler, Hon. Heath, of North Carolina............................   168
Walz, Hon. Timothy J., of Minnesota..............................   170
Young, Hon. Don, of Alaska.......................................   171

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Adler, Johnathan H...............................................   174
Albrecht, Virginia S.............................................   181
Buzbee, William W................................................   209
Card, Joan.......................................................   233
Cope, Hon. Robert................................................   247
Cruden, John C...................................................   260
Gerber, Darrell..................................................   282
Grumbles, Hon. Benjamin H........................................   315
Hulsey, Hon. Brett...............................................   334
Jacobs, Hon. Kristin.............................................   341
Lancaster, Chief Arlen L.........................................   347
Matthiessen, Alex................................................   352
Munks, Hon. Don..................................................   375
Petersen, Chris..................................................   379
Pifher, Mark T...................................................   387
Quinn, Jr., Harold P.............................................   396
Recker, Tim......................................................   406
Runbeck, Linda C.................................................   413
Shaffer, Carl....................................................   420
Squillace, Mark..................................................   442
Tierney, James M.................................................   453
Trout, Robert V..................................................   462
Woodley, Jr., Secretary John Paul................................   469

                       SUBMISSIONS FOR THE RECORD

Mica, Hon. John L., a Representative in Congress from the State 
  of Florida, list of organizations that submitted statements for 
  the record.....................................................     5
Albrecht, Virginia S., Partner, Hunton and Williams, LLP, on 
  behalf of the Waters Advocacy Coalition, responses to questions 
  from the Committee.............................................   206
Buzbee, Professor William W., Director, Environmental and Natural 
  Resources Law Program, Emory Law School, responses to questions 
  from the Committee.............................................   229
Card, Joan, Director, Water Quality Division, Arizona Department 
  of Environmental Quality, responses to questions from the 
  Committee......................................................   245
Cope, Hon. Robert, Commissioner, Lemhi County, Salmon, Idaho, on 
  behalf of the National Association of Counties, responses to 
  questions from the Committee...................................   258
Gerber, Darrell, Clean Water Action Alliance of Minnesota, 
  responses to questions from the Committee......................   312
Grumbles, Hon. Benjamin H., United States Environmental 
  Protection Agency, Assistant Administrator for Water; Woodley, 
  Jr., Secretary John Paul, Assistant Secretary of the Army for 
  Civil Works, responses to questions from the Committee.........   330
Matthiessen, Alex, Hudson Riverkeeper and President, Riverkeeper, 
  Inc., responses to questions from the Committee................   371
Munks, Hon. Don, Skagit County Commissioner, District 1, Mount 
  Vernon, Washington, responses to questions from the Committee..   378
Petersen, Chris, President, Iowa Farmers Union, responses to 
  questions from the Committee...................................   385
Pifher, Mark, Director, Aurora Water, on behalf of the National 
  Resources Association, the Western Urban Water Coalition, and 
  the Western Coalition of Arid States, responses to questions 
  from the Committee.............................................   394
Quinn, Jr., Harold P., Senior Vice President, Legal and 
  Regulatory Affairs, National Mining Association, responses to 
  questions from the Committee...................................   404
Runbeck, Linda, American Property Coalition, responses to 
  questions from the Committee...................................   418
Shaffer, Carl, President, Pennsylvania Farm Bureau, responses to 
  questions from the Committee...................................   430
Squillace, Professor Mark, Director, Natural Resources Law 
  Center, University of Colorado School of Law, responses to 
  questions from the Committee...................................   449
Tierney, James M., Assistant Commissioner for Water Resources, 
  New York State Department of Environmental Conservation, 
  responses to questions from the Committee......................   460
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           HEARING ON THE CLEAN WATER RESTORATION ACT OF 2007

                              ----------                              


                       Wednesday, April 16, 2008

                   House of Representatives
    Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 11:10 a.m., in Room 
2167, Rayburn House Office Building, the Honorable James L. 
Oberstar [Chairman of the Full Committee] presiding.
    Mr. Oberstar. The Committee on Transportation and 
Infrastructure will come to order.
    Today we resume discussion of the future of the Federal 
Water Pollution Control Act, the Clean Water Act of 1972.
    Over the past three decades, this legislation and its 
predecessors, going back to the work of my predecessor in 
Congress, John Blatnik, who once chaired this Committee and 
authored the very--well, not quite the very first, there was a 
1948 Act, but the major restatement of purpose, statement of 
objectives for clean water was in 1956 with the Blatnik 
legislation that set up essentially the structure we have 
today, of grants to municipalities, although the grants are 
gone now, they are now replaced by loans, to build sewage 
treatment facilities. Mr. Blatnik said, at the end of the day 
you have to build a plant to clean up the waste. Two, an 
enforcement program; three, research and development. Those are 
essentially the three structures of the Act today.
    That initiative, the Federal-State partnership created in 
1956 and restated in 1965 and reaffirmed in 1972 is still the 
cornerstone of this legislation, and it has taken us from two-
thirds of the Nation's waters being polluted and unaccepted for 
body contact activities, for fishing and recreational 
activities, to less than one-third of the waters not meeting 
fishable and swimmable standards. We have gone from the days of 
the Cuyahoga River catching fire and soap suds floating down 
the Ohio-Illinois river system, soap coming out of people's 
faucets when they turned on the water for drinking water, to 
dependable sources of clean water.
    For over 30 years, the industrial sector, agriculture, 
municipalities worked in cooperation with States and the 
Federal Government, EPA, and the Corps of Engineers toward the 
purpose of the Act, stated in the opening paragraph: ``to 
restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.'' That is in the opening 
paragraph of the Act.
    And I say, parenthetically, I was chief of staff at the 
time we crafted that legislation. Many of the House-Senate 
conferences meetings were held right here in this room. We 
didn't have as many seats for Members in those days, we only 
had these two rows; that lower row didn't exist at the time, so 
we had a big space. Those were rigorously debated conference 
meetings, over 10 months, not of cameo appearances, but intense 
discussions--Senators on the one side, House Members on the 
other, staff on both sides--and hammered out, piece by piece, 
the purpose and the specifics of that legislation.
    Of course, not everybody was happy with the legislation, 
When Richard Nixon vetoed the Clean Water Act of 1972, Congress 
overrode by a 10 to 1 vote, overrode that veto. That meant that 
90 percent of Republicans and 95 to 100 percent of Democrats 
voted to override.
    Then along comes the Supreme Court and two decisions--the 
SWANCC case, Solid Waste Agency of Northern Cook County, in 
2001, and the Rapanos case five years later--that confused the 
scene. As Justice Stevens said, ``The decision needlessly 
weakened our principal safeguard against toxic water.''
    Left behind in the wake of those decisions was what you can 
charitably call regulatory confusion, maybe even chaos. But I 
believe that we can correct it. I think we can take the effect 
of the two Supreme Court decisions--confusion, inconsistency, 
uncertainty about how to apply the Act--and repair it. The goal 
of the 1972 Act was very clearly to avoid pollution havens. 
Upstream States didn't want to be in a position where 
downstream States could outdo them or attract business on the 
grounds that they wouldn't have to clean up as much as in other 
places. States clearly said to the Congress--the House, the 
Senate--we want a baseline consistent Federal standard so that 
industry could not be enticed from one State to a laissez faire 
State; and that is largely what prevailed over the ensuing 30 
years.
    Now we have a regulatory miasma. It wasn't created by the 
Congress, but it is our duty to clarify it. We need to look 
back at the fundamental principles of the Clean Water Act and 
its predecessor legislation to reaffirm the partnership between 
the Federal Government and the States to restore and maintain 
the integrity of the Nation's waters, and to proceed to 
continue with the central thrust of the Clean Water Act: a 
watershed approach to establishing and maintaining clean water.
    A central purpose of the Clean Water Act was control of 
point sources--and establishing a basis for dealing with non-
point sources was to be done in time--and to provide Federal 
financial support to the States to carry out their end of the 
bargain. The Clean Water Act, as amended, recognized very 
distinct categories of unique activities: agricultural return 
flows in the 1977 Act, agriculture return flows exempted; 
stormwater runoff from oil, gas, and mining exempted; 
maintenance of structures such as dikes, dams, levees, riprap, 
breakwaters, causeways, transportation structures exempted; 
construction or maintenance of farm or stock ponds and 
irrigation ditches, again, clear consensus, exempted; 
construction of temporary sedimentation basins exempted; moving 
of mining equipment, construction or maintenance of farm roads 
and forest roads, or temporary roads for mining equipment also 
exempted; and activities where States have an approved program 
to manage. All those were part and parcel of the Clean Water 
Act which now are put in question by the Supreme Court 
decision.
    Over the last seven years, I have laid on the table a 
proposal to address this regulatory uncertainty and chaos by 
what I consider to be misguided Supreme Court decisions, and 
after years of no action and no consideration, we have had a 
major hearing, we have launched a major debate nationally, and 
discussion within the Committee on the proposal I have set 
forward. The goal of the legislative proposal is to restore the 
Clean Water Act protections in place prior to the Supreme Court 
decision and not to extend the reach, not to go beyond that 
purpose. The pre-SWANCC and pre-Rapanos regulatory era define 
the universe of the Clean Water Act very broadly: to allow EPA 
and the Corps of Engineers and the States to address the water 
quality concerns where they found them and this broad, and 
largely undefined structure worked relatively well for over 30 
years.
    Now, implementation has also needed streamlining. There is 
no question about that. To the extent we can simplify 
practices, streamline permitting process, we ought to attempt 
to do that, provided we do not shortcut environmental values; 
and I welcome recommendations. Previous practice also was 
backed by science, viewing the natural water environment as 
interconnected, and that is a matter that needs to be 
continued, stressing the role of protecting geographically 
isolated, intermittent, in some cases so-called ephemeral 
headwater streams, to protect total water quality. It is a 
common sense approach. It is cost-effective and it is, in a 
practical sense, effective in protecting pollutants from 
entering a water body, much more efficiently than trying to 
remove them once they go downstream.
    My legislation is not intended to ignite old debates that 
existed 35 years ago and that were resolved with the enactment 
of Clean Water Act, but to put the Clean Water Act back on the 
track that it was prior to these two Court decisions. We had a 
previous hearing in which we received a wide range of views. 
The purpose of today's hearing is to continue to receive 
specific recommendations from a wide range of affected and 
interested parties on how to proceed in the post-SWANCC-Rapanos 
era and what specific adjustments they recommend to the 
introduced bill.
    I invite constructive proposals and remain open to 
adaptations to this bill, and I look forward to working with 
Mr. Mica and Mr. Boozman, along with Members on our side of the 
aisle, on constructive proposals to make these adaptations. And 
I reaffirm that the introduced bill is not an inflexible 
document, but a starting point for discussion, and I look 
forward to today's hearing.
    I now recognize the distinguished gentleman from Florida, 
Ranking Member Mr. Mica.
    Mr. Mica. Well, thank you, Mr. Chairman. I am pleased today 
to participate in the hearing on H.R. 2421. We are going to 
have an opportunity to carefully review Mr. Oberstar's proposed 
legislation that would fundamentally alter the course of water 
regulation. I believe Mr. Oberstar has some very good 
intentions, but we have to look at the consequences of the 
language that we have before us.
    Mr. Oberstar and I usually try to work out our differences 
on most issues before the Committee, and I appreciate his 
willingness to work with us. However, in its present form, H.R. 
2421, I do not agree with the way the language has been 
drafted. And I might say that my interpretation is similar to 
hundreds of organizations representing millions of citizens 
across the Country. In fact, this is just some of the 
organizations, and I am going to ask if we can list them in the 
Congressional Record.
    Mr. Oberstar. In the hearing record.
    Mr. Mica. What did I say? Congressional Record. Sorry. In 
the hearing record.
    [Information follows:]
    [GRAPHIC] [TIFF OMITTED] 41961.001
    
    Mr. Mica. In addition, I have to say, again, in 16 years--
and certainly in my short tenure as Ranking Member--I have 
never heard from so many people opposed to one piece of 
legislation. In fact, this is just a sampling--and I won't ask 
to have all these put in the record. This is just a sampling of 
correspondence I have in opposition to this particular piece of 
legislation. I did not solicit one letter or request.
    I will have a request--I don't want to put these and some 
of the others in the record--I think it wouldn't do justice for 
the taxpayers, because it is pretty extensive--but I will have 
a request later on at the end of my remarks for unanimous 
consent to put some principal organizations' comments and 
letters in the record.
    I am afraid, too, as Americans begin to realize the 
potentially harsh consequences of the legislation in its 
current form, that opposition will expand even beyond what we 
see here. Unlike the initial description of this bill, it in 
fact is far from being a simple restoration of what has been 
termed prior regulatory regime or practice. Put very simply, 
this legislation represents a hallmark example of pushing an 
agenda item right now that I think could be very disastrous to 
the economy and could have disastrous consequences to 
agriculture, personal land rights, the rights of States and 
localities to manage their own water resources.
    It is said that this action is needed to clarify the 
jurisdictions of the Clean Water Act after recent Supreme Court 
decisions allegedly created some ambiguities. Again, I think 
Mr. Oberstar has very good intentions, but, again, we have to 
look at the consequences of the language and the action the 
legislation would institute. Some believe that the solution to 
this problem is just to expand Federal Government regulatory 
authority over everything, so under this bill, if you do that, 
there will be no limit. Certainly there will be no ambiguity 
because there is no limit to Federal jurisdiction over all 
things involving water. Unfortunately, the results would be an 
unprecedented and historic Federal jurisdictional grab, and I 
don't think that is the intent.
    A person does not need to be a rocket scientist to 
recognize when you remove the word ``navigable'' from the 
jurisdictional description, navigable waters of the United 
States, what will really result is we will have a massive 
expansion of Federal regulatory authority. To suggest otherwise 
sort of defies any common sense interpretation of what you have 
done, again, with changing this language.
    To subject ditches, retention ponds, stormwater runoff, 
water in a field, or pool in a backyard to be a body of water 
in need of Federal regulation somehow defies common sense. 
Federal regulation of virtually every wet area in the Country 
is not needed and it is not necessary. Unfortunately, there are 
some folks who do support this, and some on both sides of the 
aisle. Some of them may feel this is a quid pro quo for their 
environmental agenda.
    However, creating the tools which will effectively cripple 
U.S. agriculture, energy production, economic development which 
will end up in a morass of lawsuits, new legal interpretations 
and entanglements, and over-reaching regulation, that is my 
fear. By throwing out 35 years of Clean Water Act 
jurisprudence, we will create chaos, I am afraid, unlike 
anything we have seen in the courts--Federal courts, the 
Supreme Court--and attempting to redefine the new 
constitutional limits of Federal authority.
    The reality is that there is no evidence that any 
endangered wetland or other important aquatic ecosystems are 
being destroyed or being harmed around the Nation as a result 
of the Supreme Court cases and the agency's new guidance. The 
guidelines in place protect the natural interest in clean 
water, while respecting the rights of individuals, States, 
Tribes, and local governments to manage their own resources.
    The Committee has not even given time for the ink to dry on 
the new guidelines the Administration has issued with respect 
to specifically help move along the permitting backlog and also 
provide even more clarification beyond that of the 35-year 
legal structure. Unfortunately, sometimes facts are not allowed 
to interfere with political rhetoric or agendas and, in the 
end, H.R. 2421, I am afraid, will simply muddy the waters, 
ponds, pools, gutters, spouts, ditches in courtrooms across our 
great Nation. In fact, what I am concerned about is it will 
cloud, rather than clear, our water's future in this Country.
    There are a large number of witnesses today, and the 
comments of the last panel may not be heard over the noise of 
the nightly cleaning crew that comes in late. This is going to 
go on for some time, folks. So let me share a couple of points 
that they make, not that I am making.
    Mr. Oberstar. I will be here to hear them.
    Mr. Mica. I am sure. And they will be part of the record, 
but I want a couple of them made up front here.
    Mr. Shaffer, of the American Farm Bureau Federation, states 
that activists have already used the courts to drag agriculture 
operations into a regulatory quagmire. If H.R. 2421 were to 
become law, the Farm Bureau predicts that we can expect more 
litigation, more regulation, and an escalation of the cost to 
comply. The results will be harmful to the Nation's ability to 
competitively produce food and fiber. That is Mr. Shaffer of 
the American Farm Bureau.
    Mr. Quinn, representing the National Mining Association, 
testifies that the proposed changes will greatly increase the 
time and costs required to move through the permitting process. 
The result would be a permitting system that is not capable of 
producing reasonable decisions in a reasonable time frame.
    In addition, I am going to ask to have submitted by 
unanimous consent a letter from the United States Chamber of 
Commerce. They comment in a letter to the Committee that the 
existing State and local permitting programs will be made in 
conflict, if not completely eradicated, by H.R. 2421. Again, 
these are their comments, not mine. Land and water use 
decisions, the Chamber also says, that once belonged to State 
and local governments would become the jurisdiction of the 
Federal Government and the cost of complying with new 
regulations and requirements would amount to an unfunded 
mandate on the States.
    These are a few of the comments, again, and I have a 
request. I would like, if I could, the Chamber of Commerce, 
Associated Contractors of America, and National Stone and 
Gravel Association, American Road and Transportation Builders, 
American Forest and Paper Association, American Petroleum 
Institute, the Central Arizona Water Conservation District, the 
California Association of Sanitation Agencies, the Imperial 
Irrigation District, and the Oregon Cattlemen's Association as 
a sampling of these letters I received. I would like unanimous 
consent that they be made part of the record.
    Mr. Oberstar. The Chair will evaluate the length of the 
documentation----
    Mr. Mica. And if at least reference would be made.
    Mr. Oberstar. Not all of the documentation is necessary, 
but it will be received for the hearing record, but not all 
documentation.
    Mr. Mica. So, finally, a point that I want to make at this 
time, this probably couldn't come at a worse time, because 
right now we have troubled economic waters and this 
legislation, I am afraid if we move forward with it, would put 
another nail in our economic coffin, creating even more 
uncertainty than we already have in the marketplace and driving 
up the cost of producing almost any kind of U.S. product.
    This legislation would also make it harder for our crippled 
housing industry, which has really taken some blows, to come 
back from its downturn and will require more regulation, spawn 
more litigation, and generally increase the cost of every new 
home constructed in America. This legislation would also have a 
dramatic negative impact on America's agribusiness. If you 
think food prices are high now, you have been to the store and 
seen sticker shock, this has potential for creating even higher 
food prices, cause further damage to United States 
manufacturing ability, and create an unprecedented flight of 
jobs to third world countries, because people will move those 
activities where you don't have this kind of regulation and 
litigation that will result.
    I appreciate Mr. Oberstar's incredible dedication to values 
of clean water. He is committed, as I am, to making certain 
that our waters are clean and our streams, rivers, and 
navigable waters of the United States are protected. However, I 
believe that the Federal response must be measured in order to 
accomplish the ultimate goal and not actually take steps back. 
So I can't support the proposal in its present form, but I 
sincerely offer all the resources of the Committee.
    I know Mr. Boozman is committed to work--he has just taken 
over as our Ranking Member--will work with Ms. Johnson, Mr. 
Oberstar, and the staffs are ready to work with you 24/7. So if 
we do correct some of the flaws in this legislation, we do it 
together in the best interest of the Country.
    Thank you, and I yield back the balance of my time.
    Mr. Oberstar. There was no balance of time.
    [Laughter.]
    Mr. Oberstar. The gentleman has as much time as he needs to 
express his views, and I appreciate the alarmist statement on 
the introduced bill. As I said at the outset, this is a 
proposal. For six years we haven't had a hearing on this 
legislation. We have now had one and we are going through a 
very extensive second hearing. We open this to all viewpoints 
and seek common understanding to address worst fears, worst 
concerns of people.
    As I said in my opening remarks here and in the previous 
hearing, I invited constructive proposals and open to 
adaptations. This is not an inflexible document, the introduced 
bill. It is a starting point for discussion, and we need to 
understand what people's concerns are and to address this. The 
objective is to return to the pre-Rapanos, pre-SWANCC state of 
management of the Nation's waters and to assure that all the 
water we ever had and ever will have on earth is with us today 
and that we pass it on to the next generation in a better state 
than we found it.
    I appreciate the gentleman's statement about letters and 
statements that he has received. We have got at least as many, 
if not more. We have over 300 organizations that are supporting 
the introduced bill. But, as I said, the objective is to make 
adaptations to move ahead, and we have our starting panel of 
very distinguished witnesses with specific expertise in the 
subject matter and very technical issues before us, and we will 
start with Assistant Secretary Woodley.
    Mr. Young. Mr. Chairman? May I ask for unanimous consent to 
submit for the record an opening statement?
    Mr. Oberstar. The gentleman from Alaska is recognized and 
the opening statement will be submitted without objection.
    Mr. Rahall. Mr. Chairman, do all Members have that 
opportunity?
    Mr. Oberstar. All Members will be given unanimous consent 
to include their statements for the record. It goes without 
saying.
    Mr. Boozman. Mr. Chairman?
    Mr. Oberstar. Mr. Boozman.
    Mr. Boozman. Could I say something in my new position?
    Mr. Oberstar. The gentleman is recognized.
    Mr. Boozman. Thank you, Mr. Chairman. This really is 
important. I want to thank you, first of all, for your hard 
work and the fact that you were there and a player in the 
original Clean Water Act. I think that this is something that 
we can look at. Sometimes Government screws things up, but the 
tremendous gains that have been made as a result of the Clean 
Water Act I think Congress can be very, very proud of.
    I grew up in Fort Smith, Arkansas and occasionally went 
fishing on the Arkansas River, and in the 1960s, early 1970s 
the place was a cesspool. Now, people water ski and things like 
that, again, as a direct result of the actions of this.
    I do think, though, that the Supreme Court made a correct 
decision based on the Constitution in that there are boundaries 
over Federal intrusion on State and local jurisdiction. The 
extent of Federal jurisdiction should not be boundless. State 
and local governments and, indeed, private property owners 
should have a role in managing their resources. The Federal 
agencies are getting experience with the new guidelines. I 
think we would like to see some recommendations at a later date 
from the agencies that suggest legislative changes that need to 
be made, if any, to help them run a program in an efficient 
manner and in a way that protects the important water 
resources, but also protects the rights of States, local 
governments, and personal property owners to manage their own 
resources.
    I am concerned that the Chairman's bill, H.R. 2421, the 
Clean Water Restoration Act, will substitute a more reasoned 
approach to the regulation of important waters and, instead, 
expand it to the fullest extent to cover activities that were 
never intended to be covered. And I think we will hear 
testimony today that that even extends perhaps even to 
activities that take place on dry land and even in the sky. We 
don't even truly know the extent of the bill's reach. That 
would be determined over time to the extensive litigation that 
the bill would cause. But it is hard to imagine a more 
expansive piece of legislation.
    So I look forward to hearing the witnesses today. And then 
again, I hope that if we do embark on a significant change, 
that we will do the due diligence that was done in the last 
Congress, that if we look at the history, the testimony, the 
tremendous amount of work that went into that as we tinker with 
this, I hope that we will do the due diligence of the future.
    Thank you very much, Mr. Chairman.
    Mr. Oberstar. Thank you for your comments. I look forward 
to working with the gentleman and with Members of both sides of 
the aisle to achieve the purpose of this legislation, simply to 
restore the original purpose and operation of the Clean Water 
Act.
    Now we will begin with Mr. Woodley. Secretary, welcome. 
Thank you.

   TESTIMONY OF SECRETARY JOHN PAUL WOODLEY, JR., ASSISTANT 
 SECRETARY OF THE ARMY FOR CIVIL WORKS; CHIEF ARLEN LANCASTER, 
  UNITED STATES DEPARTMENT OF AGRICULTURE, NATURAL RESOURCES 
   CONSERVATION SERVICE; THE HONORABLE BENJAMIN H. GRUMBLES, 
   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ASSISTANT 
 ADMINISTRATOR FOR WATER; AND JOHN C. CRUDEN, DEPUTY ASSISTANT 
 ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT AND 
                   NATURAL RESOURCES DIVISION

    Mr. Woodley. Good morning, Mr. Chairman and Members of the 
Committee. I am pleased to be here this morning to speak to you 
about the Army's Clean Water Act Regulatory Program and its 
implementation.
    This Administration has supported the Regulatory Program 
and wetlands protection by requesting increases in funding from 
$138 million in fiscal year 2003 to $180 million in fiscal year 
2009, a 30 percent increase. The Corps will continue to 
administer this program to the best of its ability with the 
resources provided, but certainly, Mr. Chairman, we will need 
the Administration's fiscal year 2009 request to be fully 
funded if we are to provide the level of effective 
environmental protection and timely service to permit 
applicants that we have provided in the past.
    We have also worked to improve the program performance 
predictability and transparency. A new compensatory and 
mitigation rule was published earlier this month; new and 
improved nationwide permits were issued in March of last year; 
a new web-based tool is now on record and document information 
on authorized activities and mitigation; and we have 
implemented the GAO recommendations related to documentation, 
mitigation monitoring, database development, and interagency 
coordination.
    Now I would like to briefly discuss how the two Supreme 
Court decisions, SWANCC and Rapanos, have affected the 
regulatory program and how we have responded.
    In SWANCC, the Supreme Court held in 2001 the Corps could 
not assert Clean Water Act jurisdiction over isolated, non-
navigable, intrastate waters based solely on their use as 
habitat by migratory birds.
    Clarifying guidance was published by Army Civil Works and 
EPA reflecting this decision on the use of the migratory bird 
rule as the sole basis of jurisdiction. As a result of that 
decision, the Corps--and then in Rapanos, in 2006, the Supreme 
Court required that Federal jurisdiction extended only to water 
bodies that are traditional navigable waters or that 
significantly affect the physical, chemical, or biological 
integrity of traditional navigable waters.
    As a result of the Rapanos decision, the Corps will 
continue to, first, categorically assert clean water 
jurisdiction over traditional navigable waters, wetlands 
adjacent to traditional navigable waters, relatively permanent 
tributaries, and wetlands directly abutting such relatively 
permanent tributaries. Second, the Corps will determine whether 
certain waters have a significant nexus with traditional 
navigable waters. This means the Corps will determine and 
document whether or not a tributary, together with its adjacent 
wetlands, has more than an insubstantial or speculative effect 
on the chemical, physical, and/or biological integrity of the 
downstream navigable water. The kind of water falling into this 
category includes non-relatively permanent tributaries, 
wetlands adjacent to such tributaries, and wetlands adjacent 
but not directly abutting relatively permanent tributaries. 
Third, the Corps will generally not assert jurisdiction over 
erosion features, upland swales, small washes, and many ditches 
excavated wholly in and draining only uplands.
    Based on the 62,000 comments received, of which 1500 are 
substantive, and 18,000 jurisdictional determinations made, the 
agencies are considering whether to revise, reissue, or suspend 
that guidance.
    Mr. Chairman, I understand that the intent of H.R. 2421 is 
to recapture those isolated and ephemeral features and 
associated wetlands that were determined not to be 
jurisdictional in the Supreme Court holdings in SWANCC and 
Rapanos, regardless of whether they affect the physical, 
chemical, and biological integrity of navigable waters. The 
Supreme Court in these decisions limited its jurisdiction based 
on interpretations of the intent of Congress, and in 
implementing the Court's decision, our approach has been not to 
focus on a particular physical or geographical target for 
limits of jurisdiction, but to make these determinations based 
on a scientific, fact-based analysis with the potential effects 
of these waters and their adjacent wetlands on the physical, 
chemical, and biological integrity of navigable waters the 
focus of the current law.
    We do have several serious concerns with the draft 
legislation as we understand it. First, it appears the general 
consequence of the legislation would be to extend jurisdiction 
beyond those waters determined not to be jurisdictional under 
SWANCC and Rapanos. This appears to go beyond the original 
intent of Congress in establishing jurisdictional reach of the 
Clean Water Act, which reflected a careful balance between 
legitimate and important Federal interest in protecting water 
quality and equally important and longstanding interest of the 
States in managing and allocating water within their 
boundaries.
    In addition to these serious concerns, we have a number of 
questions that we would like to ask and the Committee may 
consider: Is it appropriate to upset the Federal-State balance 
established in the original Clean Water Act? How will removing 
this term ``navigable'' from the Clean Water Act affect the 
implementation? Will this extension of Federal jurisdiction 
significantly increase cost to small landowners and other 
interests? And what would be the budgetary workload and 
processing time implications for Corps regulatory jurisdiction?
    Because the bill specifically refers to perennial and 
intermittent waters, one might conclude that the bill intends 
that ephemeral features, which are currently evaluated under 
the Corps significant nexus test are intended by the bill to 
actually be removed from Federal jurisdiction. Further, it is 
not clear whether the phrase ``activities affecting waters of 
the United States'' might mean, as the term seems to be 
essentially without boundaries.
    Mr. Chairman, certainly, we look forward to working with 
the Committee to explore these questions and to ensure that any 
legislative change in the Clean Water Act is carefully thought 
through with all of its implications considered.
    Mr. Oberstar. Thank you, Mr. Secretary. I think those 
comments are very targeted, very specific, and I will come back 
to you with questions about specifics.
    Now, Mr. Lancaster, Chief of the Natural Resources 
Conservation Service at USDA. Thank you for being with us.
    Mr. Lancaster. Thank you, Mr. Chairman, Members of the 
Committee. Thank you for the opportunity to discuss the 
activities of the National Resources Conservation Service. My 
full statement has been submitted for the record.
    Mr. Oberstar. Without objection, the statement will be 
included in the record.
    Mr. Lancaster. NRCS works to assist producers in meeting 
their conservation goals through our technical and financial 
assistance programs. We support private landowners and 
conservation partners in efforts to restore, enhance, and 
maintain our Nation's natural resources, including valuable 
water and wetland resources.
    It is clear from our experience that farmers and ranchers 
know that profitable farming and maintaining clean water 
supplies go hand in hand.
    Based on data from NRCS's national resources inventory, 
farmers and ranchers are protecting and restoring wetlands at 
historic rates. Between 1997 and 2003, agricultural producers 
across the Nation achieved an average net gain of 44,000 acres 
of wetlands each and every year. USDA is also contributing 
significantly to the President's goal for overall increases in 
wetlands by protecting, improving, and restoring 3 million 
acres of wetlands by 2009. On Earth Day last year, progress 
towards that 3 million acre goal stood at nearly 2.8 million 
acres.
    A number of USDA's activities greatly contribute towards 
those wetland and water quality objectives, including our 
conservation compliance activities, STET voluntary land 
retirement programs, and our conservation cost share assistance 
programs.
    USDA utilizes conservation compliance authorities to 
discourage the production of agricultural commodities on 
converted wetlands and highly erodible lands. For purposes of 
the Food Security Act, wetlands compliance, known as 
Swampbusters, and highly erodible land requirements must be 
met. Violations result in loss of eligibility for USDA 
benefits.
    Through Swampbuster, producers have sharply reduced wetland 
conversions from agricultural uses, from 235,000 acres per year 
before 1985 to 27,000 acres per year from 1992 through 1997; 
and our reviews of Swampbuster efforts indicate continued 
increasing producer compliance levels for the program.
    Highly erodable land compliance associated with our 
conservation programs has resulted in a reduction of nationwide 
soil erosion of 43 percent from 1982 through 2003, and a 
corresponding reduction in nitrogen and phosphorus entering our 
Nation's waters.
    I would be remiss if I did not also mention USDA has 
proposed a third compliance mechanism for the next Farm Bill. 
The Sodsaver proposal would discourage conversion of range land 
and native grassland in a manner similar to the current 
Swampbuster provisions for the conversion of wetlands.
    USDA also offers important land retirement programs that 
assist in the creation, improvement, and restoration of 
wetlands. The Wetlands Reserve Program, or WRP, is a voluntary 
program through which landowners restore and protect wetlands, 
in most cases with long-term or permanent easements. Private 
landowners have enrolled over 1.9 million acres in this program 
through fiscal year 2007, and demand for WRP continues to grow 
as producers seek to continue to enroll their lands in this 
important program.
    The Conservation Reserve Program helps producers safeguard 
environmentally sensitive land. Producers enrolled in CRP plant 
perennial vegetation to improve water quality, control soil 
erosion, and enhance wildlife habitat in return for rental 
payments.
    A majority of the over 34 million acres enrolled in CRP 
consist of environmentally sensitive upland fields; however, 
USDA has also enrolled 2 million acres of wetlands with 
associated protective buffers in this program.
    One of the key focuses of NRCS regarding water quality 
improvements are a voluntary working lands program such as the 
Environmental Quality Incentives Program, or EQIP. EQIP helps 
producers achieve both their conservation and business goals, 
as well as meet regulatory challenges. Between 2002 and 2006, 
nearly 185,000 participants received more than $3 billion in 
cost share and incentive payments under EQIP for the 
implementation of structural and management conservation 
practices.
    An example of work in the regulatory realm, since 2002, 
NRCS has helped producers develop 32,000 comprehensive nutrient 
management plans that can help animal feeding operations comply 
with regulatory requirements should their operations fall under 
the Clean Water Act's Concentrated Animal Feeding Operation, or 
CAFO, provisions.
    In summary, USDA believes that NRCS authorities for 
wetlands compliance and restoration activities under the Farm 
Bill would not be affected by the proposed legislation. Since 
our authorities are not associated with the Clean Water Act, 
the change in definition would not impact our implementation. 
It is, however, possible that enactment of H.R. 2421 would lead 
to more producers falling under the regulatory purview of the 
Clean Water Act, which in turn could lead to increased 
compliance costs for producers and demands for our already 
over-subscribed assistance.
    As we look ahead, Mr. Chairman, it is clear that farmers 
and ranchers are making significant wetland improvements and 
water quality gains through voluntary incentive-based 
activities. We want to build on that success. The challenges 
before the Nation to protect and improve wetland resources will 
require the dedication of all available resources, the skills 
and expertise of NRCS staff, contributions of volunteers, 
continued collaboration with partners--including local, State, 
and Federal agencies--to provide farmers and ranchers the best 
information and assistance possible to better able them to 
continue to protect, enhance, and restore our wetland 
resources.
    I would be happy to respond to any questions.
    Mr. Oberstar. Thank you very much. I appreciate your 
excellent statement, which I found very fascinating. I read the 
entire statement. I appreciate very much your contribution.
    Now Ben Grumbles, Assistant Administrator, U.S. EPA, but 
better known as a former staff member of the Committee.
    Mr. Grumbles. Thank you, Mr. Chairman. Always an honor to 
appear before you and your colleagues on this great Committee.
    As you know, the objective of the Clean Water Act is to 
restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters, and that includes wetlands. 
All wetlands and waters have value. All wetlands and waters 
have some ecological functions. But not all wetlands and waters 
are subject to Federal regulation under the Clean Water Act, 
and I think you know that very well.
    This Country has made tremendous progress to achieve that 
objective of the Clean Water Act as it relates to wetlands. In 
the 1970s, this Country was losing 290,000 acres a year of 
wetlands. Now we estimate that there is actually a net gain of 
wetlands, 32,000 acres a year. That doesn't mean we can't and 
shouldn't stop working hard to use the regulatory tools, 
because we are losing certain valuable wetlands and we need to 
continue to be vigilant. And in that regard, this 
Administration is fully committed to protecting and restoring 
wetlands, and not just ensuring no net loss, but as the 
President stated on Earth Day, moving towards an overall gain 
in the quality and quantity of the Nation's wetlands.
    John Paul Woodley and I are very pleased with the 
compensatory mitigation rule that was recently issued. We feel 
that that is a market-based way to help ensure no net loss of 
wetlands and it is a sign of 21st century ways to conserve 
wetlands and protect them.
    The SWANCC and Rapanos guidance are very important; they 
are in response to the Supreme Court decisions. The Rapanos 
guidance that John Paul Woodley and I issued in June of last 
year we believe provides needed clarity and helps to increase 
consistency and predictability in light of the Supreme Court 
decisions. But we also realize much more work needs to be done. 
The guidance laid out specifics of not just one of the tests, 
the Scalia test or the Kennedy test, but described both of them 
and that we would use either one; and it was accompanied by a 
very detailed handbook and instruction manual.
    We took nine months of comments and have been field-testing 
that guidance. The received comments, essentially, to summarize 
it crudely, many in the regulated community thought we went too 
far, and some in the environmental community thought we didn't 
go far enough. We also got some very good comments about 
suggestions on how to streamline the process in terms of 
jurisdictional determinations. We are taking that very 
seriously and we are looking to our next steps to review, 
revise, or suspend the guidance in the coming weeks.
    In terms of your legislation, H.R. 2421, Mr. Chairman, I am 
encouraged by the comments you have made at this hearing about 
being open to change and clarification and adaptability. As is 
stated in our written testimony, in mine, we do have concerns 
about the legislation in its current form, programmatic impacts 
in particular. I think it is very important to be able to 
answer those relevant questions about the prior converted crop 
lands and about waste treatment systems, very important 
existing exemptions that aren't addressed directly in the 
legislation.
    I also think it is very important to look at other areas, 
such as permit streamlining and how can the agencies and 
Congress work to provide more incentives and encouragement for 
States to assume the 404 program under 404(g) and (h). Only a 
couple States have done that to date, and we think, in the 
interest of federalism and increased wetlands conservation, 
that is a very important area for the Congress to look at.
    Mr. Chairman, we stand ready to work with you and your 
colleagues to improve the legislation. We are very committed to 
ensuring continued progress on implementing the guidance and 
working to use the tools under the Clean Water Act, as well as 
other tools, cooperative conservation tools, with our partners 
at USDA and Interior to continue to work to protect and restore 
America's wetlands and waters. We feel that by working together 
we can all make progress towards that objective of restoring 
and maintaining the chemical, physical, and biological 
integrity of the Nation's waters, including wetlands.
    Thank you.
    Mr. Oberstar. Thank you very much, Mr. Grumbles, Mr. 
Secretary, for your contribution, for your thoughts. I know 
that in you we have a seasoned, experienced practitioner and 
that we can work our way through these issues. Your comments on 
streamlining, I think, are very important. We look forward to 
pursuing your further thoughts about that and your 
reaffirmation of the no-net loss policy of the first Bush 
Administration and affirmation, as Mr. Woodley said, that the 
Clean Water Act is a key part of the President's wetlands 
policy. Those are very, very important contributions.
    Mr. Cruden, we do have a vote in progress; we have 10 
minutes remaining. I would like to have your statement on 
record before we break for the vote.
    Mr. Cruden. Mr. Chairman and Members of the Committee, 
thank you very much for inviting me to testify. You have my 
full statement. I am a Deputy Assistant Attorney General with 
the Environment and Natural Resources Division at Department of 
Justice. We do all of the Federal environmental litigation, 
including well over 7,000 cases involving over 70 statutes. An 
important statute, one that we are dedicated to enforce and 
protect is the Clean Water Act, and we normally do that on 
behalf of the Environmental Protection Agency and the Corps of 
Engineers. They, of course, have broader authority and 
administrative enforcement, which we are not often involved in.
    When we litigate any of our cases, but particularly those 
involving the Clean Water Act_whether or not we are enforcing 
against a company that is illegally discharging or we are 
trying to protect wetlands_our first step is always to look at 
the statute. And, as has been repeated today many times 
already, that statute directs us to restore and maintain the 
chemical, physical, and biological integrity of the Nation's 
waters.
    The cornerstone of that great statute is section 301, which 
prohibits the discharge of a pollutant from a point source 
without a permit. As all of you know, the discharge of a 
pollutant is defined by the Act as any addition of any 
pollutant to navigable waters, and navigable waters is further 
defined as the waters of the United States. EPA and the Corps 
of Engineers have regulations defining and implementing that 
term, and we have been litigating those issues for many years.
    A significant trio of Supreme Court decisions have focused 
on Clean Water Act issues in general, and more specifically, 
section 404, which is the wetlands protection section.
    The Riverside Bayview decision in 1985 addressed one key 
issue, and that was whether or not the Corps was authorized to 
require landowners to obtain permits before discharging fill 
material into wetlands adjacent to navigable bodies of water 
and their tributaries. The Supreme Court unanimously agreed.
    Then later, in SWANCC, the Supreme Court decided that 
isolated, non-navigable, intrastate waters did not become 
waters of the United States based solely on migratory bird 
usage.
    The Rapanos case, however, requires a bit more explanation. 
The judgment of the Supreme Court was to vacate the two 
decisions of the Sixth Circuit, but there was no majority 
opinion. Instead, we had five separate opinions, including a 
plurality opinion authored by Justice Scalia and a concurring 
opinion by Justice Kennedy.
    But I want to point out one thing that is often overlooked 
about the Rapanos decision. The one issue that all Justices 
agreed on is that they rejected the position that waters of the 
United States were limited to navigable_in fact_waters. That 
was rejected.
    But the plurality opinion has a two-part test: whether the 
wetlands in question are near waters with a relatively 
permanent flow and, if they are, whether the wetlands are 
adjacent to those waters in the sense of having a continuous 
surface connection. Justice Kennedy concurred in the judgment 
of the Court, but he had a different standard. He asserts that 
we should be looking at whether or not the specific wetland in 
question possesses a significant nexus to the traditional 
navigable waters.
    Applying Rapanos has been challenging. The Department has 
vigorously litigated the position that we can establish 
jurisdiction by meeting either the test authored by Justice 
Scalia or the test authored by Justice Kennedy. We believe that 
is the best way to fulfill the statutory mandate and is in 
keeping with the decision.
    In the 22 months since Rapanos was decided, the Department 
has now filed more than 45 briefs in over 30 Federal court 
proceedings in which this issue was in question. Right now we 
have about 20 decisions applying the Federal Rapanos standards. 
In my prepared testimony there is a table summarizing those 
decisions. We have done well in many cases, but not in all.
    Our intent at the Department of Justice is to move 
aggressively forward in every case to protect wetlands and to 
do that consistent with the statute, the core regulations, and 
applicable case law.
    I look forward to your questions. Thank you.
    Mr. Oberstar. Thank you for a very thoughtful and far-
reaching discussion of the Act and of the court cases, and for 
the substantive backup in your written statement, which will be 
included in the record. I want to explore those issues further 
with you.
    But we will recess for the vote and resume within 15 
minutes after completion of the last vote in this series.
    Committee stands in recess.
    [Recess.]
    Mr. Oberstar. I have a question for Mr. Cruden that I 
thought would be the lead-off question, but we will wait until 
he returns.
    Mr. Grumbles and Mr. Woodley, when he returns, what would 
be the effect of leaving in place the term ``navigable waters'' 
where it appears in the Clean Water Act, not deleting that 
reference, as proposed in the introduced bill, and including 
legislative reference to the prior--that is, prior to Supreme 
Court decision--regulatory rules published by EPA and the 
Corps?
    Mr. Grumbles. A reference to all of the regulatory rules 
published by EPA and the Corps or some of them?
    Mr. Oberstar. Or some selected ones that are pertinent to 
the issues that we are concerned about. Pertinent to, let us 
say, the eight exemptions provided in the Clean Water Act on 
which there is a regulatory body.
    Mr. Grumbles. Well,----
    Mr. Oberstar. And a reference to prior converted farmland.
    Mr. Grumbles. And waste treatment systems?
    Mr. Oberstar. Yes.
    Mr. Grumbles. My initial response is--well, the obvious 
initial response is that this would be something that we would 
want to look at, the lawyers in the agency, EPA in particular, 
to see how that would play out, the new language you are 
adding. I am assuming your question also assumes that you would 
keep in language in the bill that uses a new term, in lieu of 
using the term ``discharge'' uses the term ``activities,'' that 
any activities affecting waters of the U.S. would be subject to 
permitting. So I think that would still----
    Mr. Oberstar. The question is--that is a separate issue----
    Mr. Grumbles. Okay.
    Mr. Oberstar.--because the question with respect to that 
matter is does that extend beyond the reach of the Clean Water 
Act as we knew it prior to SWANCC.
    Mr. Grumbles. Right.
    Mr. Oberstar. That is a separate question you can answer.
    Mr. Grumbles. I think there could also be some questions 
asked about the applicability date or retroactivity of the 
language of the legislation. I would say that we would need to 
look at it closely and carefully. I would also say that by 
leaving in the term ``navigable waters,'' that would be a step 
towards reducing a potential wave of litigation over 
constitutional issues. It still, I think, would be important to 
look at the full array of what the bill would look like, even 
if you change it to leave in the term ``navigable waters'' and 
then, as I understand the question, you would then be 
referencing in some way--and I think it would be important to 
see exactly how you would reference all the existing regs that 
the Corps and EPA have issued; you said eight exemptions or 
provisions. So it is something we would commit to look at and 
to give you our best guess on what the impact would be.
    Mr. Oberstar. I don't know if you can read it up there on 
the screen. This is a document of the specific EPA and Corps 
regulations: all waters currently used, were used in the past, 
or may be susceptible to use in interstate or foreign commerce, 
including all waters subject to the ebb and flow of the tide 
and the regulatory practice associated therewith.
    Mr. Grumbles. If the intent is to try to more closely 
restore, rather than expand, jurisdiction, that is probably an 
important step in the right direction. I think, seriously, we 
would need to have our lawyers for the EPA and the Corps look 
at it more carefully, but----
    Mr. Oberstar. Would you say conceptually that that would 
remove, subject to parsing words, uncertainty about application 
of the Clean Water Act post-SWANCC-Rapanos to a status quo 
ante?
    Mr. Grumbles. Then I would ask what is the bill doing. You 
are attempting to overturn certain aspects of the SWANCC 
decision and the Rapanos decision to prevent the application of 
a significant nexus test or a relatively permanent waters test. 
I think by leaving in navigable, that is a step towards 
reducing potential constitutional litigation. I think what we 
would want to focus on in your question is exactly how you 
would reference what stature you would give in the reference to 
those existing regs while you are also adding additional 
provisions in the bill, new terms.
    Mr. Oberstar. Since the concern is that changing the 
language as I initially proposed to do would create a great 
deal of uncertainty about the future, then let us leave in 
place navigable waters, return to the language of the 
conference report that said the Committee of Conference intends 
the widest possible application of the term ``navigable 
waters'' and ``waters of the United States'' to include 
watersheds, and that is the spirit in which the Act was 
administered up until SWANCC-Rapanos. So I want to restore the 
status quo ante.
    And then the separate question is prior to SWANCC-Rapanos, 
did EPA and the Corps need to identify a jurisdictional nexus 
to a navigable water in order to assert jurisdiction of the 
Clean Water Act?
    Mr. Grumbles. Well, John Paul, if you want to also weigh in 
on this. Prior to SWANCC and Rapanos, under our regulations, we 
laid out at least seven different ways to assert jurisdiction 
over waters, including wetlands. One was traditional navigable 
waters test. We did have, in particular, one for tributaries, 
asserting jurisdiction over tributaries and also for adjacent 
wetlands. The SWANCC case was focused in on the (a)(3) waters 
of the regs, which is intrastate, non-navigable, isolated 
waters, and there we have taken the view that there needs to be 
some connection to commerce, an interstate commerce connection.
    Mr. Oberstar. Have any waters lost protection as result of 
the two Supreme Court cases? Are there bodies of water that 
were considered protected pre-SWANCC-Rapanos and lost that 
protection subsequently?
    Mr. Grumbles. Well, in our guidance and, so far, lessons 
learned in the nine months since implementation of the 
guidance, the June 2007 guidance, our guidance did not 
categorically exclude, and we didn't interpret the Supreme 
Court various decisions to categorically exclude certain 
waters. What we have found is there has been a slight, not 
significant, decrease in coverage in some respects, and, Mr. 
Chairman, obviously, when you get further up in the watershed, 
towards the headwaters, more into some of the ephemeral streams 
that are really based on the weather patterns, we have observed 
that there may be less likelihood of jurisdiction under the 
Federal Clean Water Act in those cases.
    Mr. Oberstar. And that is a very important point. If you 
consider the case of New York City, which acquired the entire 
watershed upstate, from which their drinking water is drawn, in 
order to have total control of it, so they wouldn't have to go 
through regulatory proceedings--they just bought the land--they 
understand that the watershed is the beginning point of any 
introduction of toxics into the stream. So they acquired the 
watershed.
    Mr. Grumbles. The other point is the truly isolated, 
intrastate, non-navigable waters, such as ponds or certain 
wetlands. The SWANCC case was clear that the agencies could not 
rely on that migratory bird, the language in the preamble of 
the regs, to assert jurisdiction over those. So the record is 
very clear that we have not seen jurisdiction asserted over 
isolated, intrastate, non-navigable waters in many instances.
    Mr. Oberstar. I will come back to the migratory birds.
    I just want to ask Secretary Woodley to give your response 
to the question I raised. Although you weren't here for the 
first part of the question, but you understand what I am 
getting at.
    Mr. Woodley. Yes, sir. I think that the reduction in 
asserted jurisdiction was much more significant under the rule 
in the SWANCC decision than we have experienced under the 
Rapanos decision, although the Rapanos decision has yet to have 
enough experience under it to say for sure. The difference is 
that under the Rapanos decision, you are essentially 
questioning how far in the tributary system the Federal 
jurisdiction should go, so that you assume that the waters are 
connected to larger water bodies, and the question is how far 
up that tributary system should we extend Federal jurisdiction.
    The previous rule under the regulation was that we would 
assert jurisdiction over any tributary that showed an ordinary 
high water mark, whether ephemeral, intermittent, or perennial, 
and our guidance is, we believe, in line with the decision or 
with the opinion of Justice Kennedy, which was that the 
ordinary high water mark is a consideration and should be used, 
but he seemed to indicate that it was not sufficient by itself. 
We had been having a rule that the ordinary high water mark was 
sufficient by itself. So what we are looking for now is other 
indications of significant contribution or potential for impact 
on navigable water in addition to the ordinary high water mark.
    Mr. Oberstar. See, there is this very extraordinary 
situation that results from these decisions. Are you doing a 
Scalia interpretation, are you doing a Kennedy interpretation, 
are you doing a somebody else's interpretation? These judges 
are sort of legislating from the bench, and when they were 
appointed they were given the charge to interpret the 
Constitution.
    Mr. Cruden, my last question for this panel is my reading 
of the two Court cases, I do not find any question raised by 
the Court as to the constitutionality of the Clean Water Act.
    Mr. Cruden. Yes and no. Neither of those decisions, as you 
have correctly stated, deal with the constitutionality of the 
statute, and they state that in the opinions. On the other 
hand, I have to say both decisions, certainly the SWANCC 
decision, written by then Chief Justice Rehnquist, and the 
decision in Rapanos, both say they are not dealing with the 
constitutional issues because the opinions are invalidating or 
addressing the regulatory issues. Although that is one way of 
not reaching the constitutional issues, both cases express some 
concern about constitutional issues.
    I will say, in response to the other question about sort of 
the evolution of litigation_maybe this is helpful. When I am 
talking to my own lawyers about how we have evolved through 
these three Supreme Court cases, I very often tell them that we 
have gone through three different eras of litigation, which I 
describe as the test of ``where,'' the test of ``whether,'' and 
the test of ``what.'' By that I mean that before SWANCC we were 
litigating ``whether'' or not something was a wetland, and very 
often we were proving soil hydrology or the ordinary high water 
mark. Then SWANCC came out and then we started litigating 
``where'' the location of the wetland was. By that I mean, was 
there a hydrological connection? I think we are now going into 
a third era of litigation, which is ``what'' is that wetland. 
That is, ``what'' is the value of that wetland or, in Justice 
Kennedy's words, is there a significant nexus between the 
wetland and the traditional navigable waters? So each one of 
these Supreme Court cases have pushed us in litigation in a 
different direction than we had been before that case.
    Mr. Oberstar. Thank you all for your contribution.
    I now recognize the gentleman from Arkansas, Mr. Boozman.
    Mr. Boozman. Thank you, Mr. Chairman.
    Again, I want to thank all of you all for the hard work, 
working as a team. You all have a great story to tell in the 
sense that the agencies have really made a tremendous impact.
    Today, when I read the testimony of the proponents of the 
legislation, it seemed like they were really saying two things. 
First of all, one of their arguments was that this bill would 
just clarify, go back to the criteria that you all were using 
prior to the Rapanos decision, and that there would be no 
additional jurisdiction. The other argument is that the 
language in the bill makes it such that instead of having the 
problems of not knowing what was regulated, this would make it 
much easier in that we would have less litigation.
    Can you address the first one? Again, when we compare what 
you were using prior to the decision that struck things down 
and tightened things up a little bit, can you compare that to 
the scope of the bill in question? In reading your testimony, I 
think, again, to me, it was pretty evident that you feel like 
the scope is going to be changed dramatically. Is that correct?
    Mr. Grumbles. I will start. A couple points I would make, 
Congressman. One is the term activities, by including in the 
bill that it is not just the discharge of dredged or fill 
material that triggers a permitting requirement, but that it is 
activities that would do so, begs a lot of questions for the 
scope, how much broader might that be, does that pick up 
certain non-point source activities, and I think----
    Mr. Boozman. So could that be building?
    Mr. Grumbles. It can be a wide array of different things, 
sources of diffuse pollution, but it could be building or----
    Mr. Boozman. But the reality is it really could be almost 
anything, couldn't it? I mean, that is what it is saying, is 
that whatever it is is affecting, then it is.
    Mr. Grumbles. Well, it is a term that would, just from my 
perspective as an implementor, it would need a lot more 
clarification as to what it really means, and it likely would 
be expanding.
    Mr. Boozman. But it would broaden the scope of your 
jurisdiction.
    Mr. Grumbles. Probably, yes. And the other point is 
findings are findings, but the findings do lay out a ray of 
additional provisions, constitutional authorities that might be 
used, so without further clarification could also be the basis 
for additional litigation, or at least uncertainty as to how 
the drafters really intended the bill to be implemented.
    Mr. Boozman. So you would say that--again, we have got 30 
years of kind of grappling with the other intent--this really 
would put us back essentially starting over, wouldn't it, as 
far as trying to figure out what it means?
    Mr. Grumbles. I wouldn't go that far. I would say that it 
has been a long time since the Congress has amended the 404 
program, the Clean Water Act as it relates to 404 in a 
meaningful way, and that by adding new terms, it would require 
a lot of clarification and probably a fair amount of 
legislative history as well; and when you add new terms to an 
area of the law that has been one of the most litigated in the 
history of the Country, it is likely to add additional 
litigation, even if the bill is not that long.
    Mr. Boozman. Right.
    Secretary Woodley, in your testimony, again, in my reading 
it, it seemed to indicate that you felt like the jurisdiction 
would be enhanced a fair amount. Can you comment on that, 
potentially?
    Mr. Woodley. Yes, sir, probably. And I would certainly 
identify the same thing that Assistant Administrator Grumbles 
identified, and then the reference--I am a little confused in 
that context by the reference to intermittent and non-ephemeral 
streams in that same section, because we now assert 
jurisdiction over quite a few ephemeral streams even under the 
current rule, and if it was intended that those not be 
included, then that would actually be a contraction of 
jurisdiction. So there are certain elements of the statutory 
language that would be very much open to litigation going 
forward is the most I would say.
    Mr. Boozman. H.R. 2421, reading the statute, could that 
apply to groundwater?
    Mr. Grumbles. Well, I was going to say that that is a fair 
question. From an EPA perspective, as we look at the geographic 
scope of the Clean Water Act, it is a fair question to ask. 
Congressman, I don't have a legal conclusion on that; I think 
that is a fair question to ask. And that is another example of 
an area that the Committee might want to clarify, as to it 
intent on the scope, because if the answer were yes, that would 
be a significant change in practice.
    Mr. Boozman. In your testimony, you mentioned that you had 
some concerns about the exemptions, the prior converted crop 
land and waste treatment systems, and the potential implication 
of the omission of those. What are the potential implications 
of omission?
    Mr. Grumbles. One would be litigation, but the most 
important one is, over the years, since 1993, the agency, EPA, 
has had a regulation on the books that said prior converted 
crop lands, if they were converted prior to December 23rd, 
1985, it would not be waters of the United States for purposes 
of the Clean Water Act regulation. It may well be the intent of 
the drafters to leave that in place; it is just that when there 
are certain savings clauses and provisions that are in the bill 
and you leave some of them out, such as the prior converted 
crop land one, it could be interpreted as meaning to change 
that. So that would lead to regulation of those prior converted 
crop lands if that----
    Mr. Boozman. The other thing is, again, for you guys, are 
there other potential regulatory emissions at risk. And then 
also the very fact that you are leaving it out, I mean, that is 
a statement in itself, isn't it?
    Mr. Grumbles. It can well be. The other one that we have 
discussed both in the 402 permitting program and in the 404 
program is the importance of the waste treatment system 
exclusion. And I know the Chairman has mentioned something 
about clarifying that as well, but that is a good example of 
one that people have commented on and that we have asked the 
question as well, is how would the bill, as it is currently 
drafted, apply, would it affect that or change it or reduce the 
ability to use that important exemption.
    Mr. Boozman. Well, thank you, guys.
    Thank you, Mr. Chairman.
    Mr. Oberstar. Mr. Rahall.
    Mr. Rahall. Thank you, Mr. Chairman. And a special thank 
you to you for holding today's hearing at the request of 
several Members of this Committee. The witnesses have been 
certainly very professional in their responses and targeted, 
and all of us deeply appreciate that.
    Mr. Chairman, in my capacity as Chairman of the House 
Natural Resources Committee, I am certainly well aware how 
sensitive issues involving clean water are, and that our 
national parks, forests, and wildlife refuges would be in 
greater peril than they already are if the waters within them 
were not suitable to support their various ecosystems. Our 
Committee has regularly dealt with issues involving reserve 
water rights, Indian water rights, sediments and irrigation 
policies, etc., and what I have certainly found is that old 
maxim out West applies, that is, whiskey is for drinking and 
water is for fighting over.
    [Laughter.]
    Mr. Rahall. Now, I don't mean that to be the case here 
today, certainly not during this hearing, but there are 
concerns, which have already been expressed, that many of us 
have with the current bill as currently crafted, and certainly 
I am very happy to hear Chairman Oberstar mention that it is a 
work in progress and open to a great deal of discussion and 
work as we proceed.
    But the one phrase that has caught a lot of our attentions, 
and I believe you answered part of this question during your 
response to Chairman Oberstar, although I missed the initial 
question, and that is the phrase ``unintended consequences.''
    Now, I do not doubt the intent of the bill's proponents who 
say that the pending measure would simply return things back to 
the way they were prior to the Rapanos decision. My concern is 
that by pulling a thread, we may unravel the universe. In this 
case, by removing the term of art ``navigable waters'' from the 
statute, we may adversely impact the entire Clean Water Act 
regulatory universe.
    So with that, Mr. Chairman, I do want to thank you for this 
additional day of hearings and ask Mr. Woodley, if I might, and 
Administrator Grumbles, Secretary Woodley and Administrator 
Grumbles, in both of your testimonies you mentioned this 
phrase, your concern over the removal of the term ``navigable 
waters'' and the effect other provisions of the Clean Water Act 
may be affected and the regulatory program. So I would like to 
ask both of you, if you would, to just go into that just a 
little bit further and elaborate on what the unintended 
consequences of such an action as removing the term ``navigable 
waters'' would be. As I say, I believe you both have responded 
in some form to this previously, but if you could just target 
in a little bit more on it.
    Mr. Woodley. Yes, sir. I guess the main point is that the 
statute to date has seemed to make a distinction between those 
waters that are and ought to be subject to Federal jurisdiction 
within this program and those which are not, so that 
essentially, there is somewhere on the landscape, a line that 
the Federal Government should remain and the Corps of Engineers 
should remain on its side of that line when it asserts its 
jurisdiction. Right now, that line is tethered to, under the 
cases that we have had, navigable waters, and you define that 
line by its relationship to navigable waters. If there is to be 
no line, then that is a very important decision. But it does 
not appear to be the intent of this Act that there be no line. 
If there is to be a line, then we need to make certain we know 
what it is tethered to. So that is the difficulty with removing 
``navigable waters'' and not using navigability as a base. 
Navigable waters are not the only waters that we regulate, but 
they are the tether to which our regulatory jurisdictional line 
is moored.
    Mr. Rahall. If you pull that thread, then the whole 
universe may unravel.
    Mr. Woodley. That is more dramatic than I would put it.
    Mr. Grumbles. Mr. Chairman, thank you for the question. The 
Administration vigorously defended the Clean Water Act in the 
Rapanos decision, and the SWANCC decision as well, to make sure 
that there wasn't an outcome that said only navigable waters 
or, more precisely, only waters that are navigable in fact are 
covered by the Clean Water Act. In our view, and I know it is 
the Chairman's view, that would be inconsistent with 
congressional intent and the way the Clean Water Act has 
worked. So the key for us has been, in this discussion, this 
debate, avoiding unnecessary litigation or potential 
constitutional litigation, not as it being unconstitutional on 
its face to remove the word ``navigable,'' but really more, in 
my view, as applied to specific circumstances or cases where 
you might get unintended consequences. And as John Paul Woodley 
has stated, we have always used that as a basis--it is not the 
only basis--so it would be a new area if the word were deleted 
from the Clean Water act.
    The other unintended consequence is really, as we said, 
when you are amending one of the most heavily litigated 
sections of environmental law in the Nation's history, it needs 
to be very clear what key terms really mean, particularly if 
you are also deleting some terms from the statute. And we have 
got a lot of regulations, not just for the 404 wetlands 
program, but for the streams and waters under 402, that we 
would want to look at carefully for potential unintended 
consequences by removing terms or adding new undefined terms to 
the statute that the bill would do in its current form.
    Mr. Rahall. Thank you.
    Secretary Woodley, you mentioned in your testimony that 
H.R. 2421 may upset the balance between the Federal interest in 
protecting water quality and the interest of States in managing 
and allocating land and water resources. Could you elaborate on 
that, please?
    Mr. Woodley. Yes, sir. And I bring to this discussion a 
certain perspective I had. Before I joined the Federal 
Administration, I was responsible for, among other things as 
Secretary of Natural Resources of the Commonwealth of Virginia, 
I had responsibility for the State programs for wetlands 
regulation, and I believe that the States are very pleased, in 
general, and are very accepting of the very broad Federal role 
in wetlands regulation. But I believe that is true as long as 
it is clearly tied to the historic Federal interest in 
navigability and commercial navigation in interstate commerce.
    When the Federal Government moves into an area, as you 
know, Congressman, it has a very strong tendency to take over 
everything related to that area, so I believe that the States 
would want to understand_and I think that we on the Federal 
side would want to understand_exactly what role we were leaving 
for the States to undertake in this arena; the Clean Water Act 
gives the States a very important role as it is currently 
established, and we want to be certain that we are not making 
changes to that that people won't like in the future.
    Mr. Rahall. Thank you.
    Thank you, Mr. Chairman.
    Mr. Oberstar. The gentlewoman from Michigan, Mrs. Miller.
    Mrs. Miller. Thank you very much, Mr. Chairman. I am so 
appreciative of all the witnesses being here today. I heard all 
your testimony; I have missed a couple questions, so hopefully 
this one hasn't been asked.
    It is interesting, this entire debate over this piece of 
legislation. As you gentlemen might know, the Rapanos case 
actually came from Michigan and the companion case to the 
Supreme Court actually emanated from my congressional district, 
a piece of property about 20 miles from my home; maybe only 10. 
It is not very far, anyway. So my constituents and our entire 
State, obviously, has been following all the litigation to the 
Supreme Court and the subsequent introduction of this 
legislation. And I appreciate the Chairman's comments at the 
beginning that really the goal of the legislation is not to go 
beyond what the standard was before the Supreme Court action 
and sort of looking at previous practice.
    One of the reasons, probably one of the largest reasons I 
even ran for Congress was because of protecting of our 
magnificent Great Lakes. So I am a huge proponent of, 
obviously, the Clean Water Act, and I would be a person that 
you would think would naturally be predisposed to want to 
support this legislation.
    However, I do have a lot of consternation as well: that it 
is overly broad, that it is too far reaching. And I think much 
of that has been talked about already, but I guess I would just 
throw out generally for the panel do you have any suggestions 
on how our Committee might amend this legislation in its 
current form to really try to achieve our goal, which is to get 
back to previous practice prior to the Supreme Court decisions 
without leading to additional litigation and getting us right 
back into the soup and where we find ourselves today?
    Mr. Grumbles. I would offer a couple observations, 
Congresswoman.
    One is, I think it is a step in the right direction to 
consider revising the bill not to delete the term, navigable 
waters. I think all of us agree that the Clean Water Act 
applies to more than just traditionally navigable waters or 
waters that are navigable in fact, but that could lead to a lot 
of questions and concerns or unintended consequences.
    Congresswoman, I also think that there are some key 
provisions in the bill that need clarification, the use of the 
word, activities, rather than discharge of dredge or fill 
material. But activities, that is not speaking to geographic 
jurisdiction but the types of activities that would trigger 
Federal permitting requirements, and I think that one needs to 
be more focused and discussion on what that really means and 
also what the implications would be. It would probably be 
picking up a lot of previously unregulated types of activities.
    The other, some of the other, as we were discussing, is 
that the bill does incorporate or attempts to reflect a large 
percentage of regulations that the Corps and EPA have on the 
books, but it doesn't do it all in toto. Therefore, you have to 
ask questions about well, by leaving out some of the exemptions 
or provisions, does that mean that those exemptions or 
provisions are affected in some way? And so, that is an area 
that needs to be considered further and clarified.
    Mrs. Miller. Let me just, if I can understand your answer, 
so you think we should delineate the term, activities to more 
closely get to what the Congress' intent is?
    Mr. Grumbles. Well, my view is that that is a controversial 
component of the bill and that the Committee should discuss 
further as to whether or not that is an appropriate approach to 
take in the bill, expanding the activities jurisdiction, 
potentially expanding it.
    But if the Committee were to decide to do that, I think it 
would certainly be helpful to EPA and everyone else to 
understand better what that phrase, that word, activities, 
means because that could apply to a wide array of things and 
actually lead to greater confusion or uncertainty than the 
current situation.
    Mrs. Miller. I only have 30 seconds here, but what about 
prior converted cropland and some of these that are not 
exempted? What is your thought about that language?
    Mr. Grumbles. And there isn't language in the current 
version of the bill on that, and I guess the point is it is one 
of the examples that comes to mind as a regulation that is on 
the books in the EPA regulations that is not specifically 
referenced or waived in or there is not a savings clause with 
respect it.
    So it does prompt the question of what would be the 
implications? Does this bill in some way reduce or adversely 
affect the existing regulation that exempts prior converted 
cropland?
    Mrs. Miller. Thank you very much, Mr. Chairman.
    Mr. Oberstar. Good questions, good points to raise.
    I just want to observe, Mr. Grumbles, that the regulations 
already address activities. I compiled a list of current EPA 
and Corps regulations that I would propose to address in the 
body of the substitute legislation, including the meaning of 
waters of the United States means those waters which are used 
or could be used for industrial purposes by industries and 
interstate commerce, all impoundment of waters, tributaries of 
waters, territorial sea and the wetlands. Those are already 
listed in Corps-EPA regulations as activities.
    If we limit it, does that define the scope of activities?
    Mr. Grumbles. When I think of the provisions, I don't think 
of those so much as activities. I think of those as categories 
of waters--the A1, A5, A7, A3 as categories of waters--more 
than the types of activities that trigger a permitting 
requirement.
    So what I would like to do, Mr. Chairman, is talk further 
with you and your staff about exactly what you are attempting 
to do.
    Mr. Oberstar. The attempt is to define where the waters are 
and to list, describe those waters and to define them as 
activities, but that is fine.
    The term, prior converted cropland, though, does not appear 
in the Clean Water Act, in the body of the Clean Water Act at 
all.
    Mr. Grumbles. Right.
    Mr. Oberstar. We did not make reference and I did not make 
reference in my bill to items that were not in and savings 
clauses that were not in the Clean Water Act as amended, but 
including prior converted cropland is another step that I 
certainly am open to.
    Mrs. Tauscher.
    Mrs. Tauscher. Thank you, Mr. Chairman, for holding this 
hearing, and I think that H.R. 2421, the Clean Water 
Restoration Act, is a very good bill and should be passed.
    These recent Supreme Court decisions have created a 
situation, I think, that really no one can live with. The 
current jurisdiction on certainty is not viable, and we must 
work to clarify this issue.
    I think the current version of the bill is a good step. 
Bills always can be perfected. That is what the process is 
about. We call it curing. So the more we have people give us 
input, the better off we are going to be.
    But I do believe that it is an important step to reaffirm 
the existing Clean Water Act exemptions in the bill because 
manmade conveyances, ditches, treatment lagoons were never 
considered as waters of the United States and are important to 
the successful treatment of wastewater. In California, where we 
lead the Nation in many things, including this issue, we would 
like to know that wastewater treatment exemption is included in 
the legislation.
    So, Administrator Grumbles, you know I am concerned, as 
many people are, about the impact of SWANCC and Rapanos and 
that they are having on our decisions here today.
    Recently, a letter by Associate Administrator, Christopher 
Bliley, to the Committee, the EPA declined to pursue 
enforcement actions 304 times between July of 2006 and December 
of last year because of concerns that the water was not 
jurisdictional due to the Rapanos decision. These instances 
include point source discharges, oil spills and the 404 
program.
    Can you describe what one of these instances might look 
like and, for example, what would a Section 311 oil spill look 
like and what would EPA typically do in that situation?
    Mr. Grumbles. I will take a stab right here, but I think it 
would be best to also commit to get back to you.
    Mrs. Tauscher. For the record.
    Mr. Grumbles. For the record, for something that is more 
thorough and perhaps more accurate because I don't know the 
specifics of it.
    What you have is an example where the agency, using its 
enforcement discretion, makes decisions as to how strong of a 
case it might have and also the gravity of the harm and takes 
these into consideration on whether to move forward with an 
enforcement action. Jurisdictional questions or potential legal 
obstacles to successful enforcement action could include 
arguments that the waters are not jurisdictional under the 
Clean Water Act.
    The 311 program uses the same definition of waters of the 
United States for spills, spills that could be spills on land 
but spills that are close enough that could get into the water 
or potentially have the potential to get into the water, and 
those could be jurisdictional under the 311 program.
    We find that in our efforts to implement the Clean Water 
Act after SWANCC and Rapanos, that based on the tests--and we 
will use either the Scalia test or the Kennedy significant 
nexus test--it may be more difficult to successfully assert 
jurisdiction cases when you go further up to the reaches of the 
watershed where there is less of a connection or less apparent 
of a connection to a traditionally navigable water.
    Mrs. Tauscher. You can see why we are concerned. Three 
hundred and four times in an 18-month period is a lot of times. 
It is a lot of bad things happening, and it is a lot of nothing 
then happening.
    What our concern justifiably is that precedent has not been 
set that these are now not things that are being acted on. 
Precedent, as you know, in this town and in the Federal 
Government sometimes supersedes reality and even wise judgment.
    What our concern is that there is now been this long time 
where many things have happened that are bad and that nothing 
has been done and that the precedent now is set that those did 
not meet a test, and that test is ambiguous because of these 
decisions. So we come right back to where we were, and I think 
that we have real concern about that.
    I am not a lawyer. I don't play one on television, but I do 
write laws which is a very dangerous thing, apparently. So I 
think that what we are trying to do here and what we need help 
and cooperation on is to get out of this ambiguity.
    Mr. Grumbles. We support that, and John Paul Woodley and I, 
our two programs, are committed to increasing the 
predictability, the certainty, the jurisdictional scope.
    Then in addition to that, based on the Supreme Court 
decisions, we know that it is very important to work with the 
States, our State partners to increase stewardship, to help 
develop programs, build capacity for State wetlands protection 
programs so that for those waters that may not be covered by 
the Clean Water Act even before the Supreme Court decisions.
    Mrs. Tauscher. I agree with you, but if the Chairman will 
indulge me, we don't want to go back to a 50-State patchwork 
quilt again. That doesn't help us either because we all know if 
we can all name five instances where these waters area actually 
borders and are shared by numbers of States. So we don't want 
to go to do that either.
    We need the Federal Government to speak clearly and 
predictably, and we need to get past the situation that we have 
now which has too much ambiguity, too much time where bad 
things have happened, and there has been no action that has 
caused a precedent where people cannot expect what will happen 
and where we find ourselves, I think, in a decline of 
protection as opposed to the kind of thing that the American 
people expect us to have.
    I appreciate your efforts. I appreciate your agreement to 
work with us. I know that you have a record of doing that.
    Mr. Chairman, once again, thank you for a great hearing.
    Mr. Oberstar. I thank the gentleman.
    Mrs. Drake, the gentlewoman from Virginia.
    Mrs. Drake. Thank you, Mr. Chairman.
    Thank you, gentlemen, for all being here.
    I think we can all agree that there is just a sort of a 
lack of understanding, a lack of what the definitions are.
    Mr. Chairman, in your opening statements, I really 
appreciate that you talked about improvements that have been 
made since the Clean Water Act has come into play. I think 
often we don't do that, and that is to really recognize that we 
have made some great strides, that we certainly have more work 
to do, but I would want to bet that every person sitting in 
this room wants the end result of this to be to protect our 
environment and to make sure we aren't doing things that are 
harmful and to find the balance that we are all looking for.
    I sat in the first hearing and what really struck me was we 
were all asking the same questions over and over and over 
again, and it was an example of definitions and what does it 
mean by using these new terms and are we really talking about 
unintended consequences and the example of pulling the thread 
and the universe unraveling.
    But my question is have your agencies done something almost 
like a comparison or an outline of this is existing law, this 
is the way you interpret this new bill to be?
    Because we have all heard the Chairman say that he is open 
to recommendations. He wants input. This is a starting point. 
The more I listen to people, including today, I think people 
want an easier process. They want to know that things are being 
done with certainty and that people aren't waiting 8 years and 
$250,000 worth of costs to move a project forward.
    So one of my questions is in trying to understand what this 
bill is and does this bill really clarify like we hear or does 
this bill have such unintended consequences because there are 
no definitions. Even the question of Mr. Boozman about 
groundwater, how do we interpret?
    So have you laid out this is existing law, this is what it 
would be under the new proposed bill?
    Then my other half of that question, if we can get to it, 
is how difficult for you has it been since the Supreme Court 
decisions? Has it been completely impossible to determine how 
you are supposed to regulate this and, at the same time, would 
this bill make it clearer?
    That is where we are all coming from. I think we all want 
the same thing, and we want the same answer. We just want to 
make sure that we lay it out properly, that we all know where 
it is going.
    Mr. Woodley. Congresswoman, certainly in preparation for 
the hearing, the agencies did analysis basically sufficient for 
us to express the areas in which we would like to, going 
forward in particular, work with the Committee to seek a deeper 
understanding of what the actual practical impact of some of 
these provisions would be. So there is some of it. We have 
conducted some analysis. I wouldn't describe it as exhaustive 
or in depth.
    Mrs. Drake. But it is an outline?
    Mr. Woodley. We have begun, certainly, that effort and we 
intend to continue working, as we all said in our testimony, 
with the Committee and with the Chairman and all the Members to 
craft as good a product as we can because we are the ones that 
will end up with it in our in-boxes at the end of the day. The 
one thing that a regulatory program needs more than any other 
is clarity and certainty.
    Then, in answer to your second question, I think that the 
people of our wetlands regulatory program in the Corps have 
responded magnificently to this challenge of having a very 
interesting Supreme Court decision that had no majority opinion 
and gave rise to very interesting questions. We worked with in 
a very collegial way with EPA and throughout an interagency 
process to provide our best understanding to the field of what 
the Supreme Court was doing and what the decisions meant. I 
think that our regulators are taking time to understand that.
    The real fact on the ground is that our old rule that I was 
talking about with the ordinary high water mark was fairly easy 
to administer.
    The new one requires more information, more understanding. 
Some people would say that that is actually a good thing, but 
you have to pay for it like all good things and that means 
people have to do more analysis, more measurement, more going 
out on the ground, more science to establish the significant 
nexus that we require for jurisdiction.
    Mrs. Drake. Are you able to share that comparison with us 
so that we are able to understand what we are doing and what we 
are putting on your plates? Is that possible for the agencies 
to share that with us?
    Mr. Woodley. Certainly, we will, Congresswoman, going 
forward.
    Mrs. Drake. Thank you.
    Mr. Woodley. You can see, as far as sharing, in my written 
testimony, it lays out the main points that we would like to 
raise at this time.
    Mr. Grumbles. I would just add that we feel that the 
guidance that was issued in June has been a helpful and useful 
tool so that we can continue to carry out the Clean Water Act. 
We are making jurisdictional determinations. We have made over 
18,000 since the guidance was issued. We are continuing to 
carry out and enforce the Clean Water Act provisions.
    It does add a complexity since the Supreme Court decision, 
having to make significant nexus analysis. We feel the guidance 
has helped us in that respect.
    But we also know, based on the 63,000 comments we got 
during the public comment period, that we have some additional 
work to do, consideration. Whether it is revising the guidance 
or reissuing it or suspending it and taking another approach, 
we know that we are going to be doing some additional outreach 
and technical assistance and training and workshops to help add 
as much clarity and certainty to the current landscape we have 
since the Supreme Court decision.
    Mrs. Drake. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Oberstar. Mrs. Miller would like to be recognized for a 
brief intercession.
    Mrs. Miller. Just for one other, in full transparency, Mr. 
Chairman, as well, I talked about the Rapanos case and the 
companion case having emanated from the State of Michigan. 
Actually, I got a report from CRS about the Rapanos case and 
what it all means.
    But the original case, Riverside Bayview Homes, that the 
Supreme Court went into in 1985 is in my home township, and I 
was a township supervisor about that time. That was the 
original Supreme Court venture into how far the Army Corps of 
Engineers has to go with their permitting process.
    This was an individual who had a large tract of land, 
obviously wetlands. It is next to a very large beach area 
there. When we were building the Interstate 696, he started 
pulling all of this fill dirt from the interstate and just 
filling this place in.
    The Corps of Engineers stopped this individual, Mr. George 
Schorr, who is subsequently deceased now. He threatened a 
Federal judge. They put him in jail. When he came out, it was 
like One Flew Over the Cuckoo's Nest, this poor guy. But 
anyway, at any rate, he was definitely filling in a wetlands 
area.
    I just mentioned that. So this was back in 1985. I really 
have been following all of these issues. It feels like they all 
come out of my particular region. So we have a lot of this 
activity going on.
    Mr. Oberstar. Are you saying we have you to thank for all 
this litigation and the Supreme Court actions?
    Mrs. Miller. I clearly remember being at the local level 
when this particular development. He was putting in underground 
all the water. The sewer, the fire hydrants were still back in 
this wetlands area, and that was where he was getting all the 
fill dirt.
    But that was the first, I believe, that the Supreme Court 
got into whether or not the Corps of Engineers, where your 
jurisdiction emanated from for permitting. I just mention that.
    Mr. Oberstar. We can't thoroughly blame you. That was Mr. 
Bonior's district at the time. We will blame him.
    Mr. Woodley. Mr. Chairman?
    Mr. Oberstar. Mr. DeFazio.
    Mr. Woodley. I think I should assure the Congresswoman that 
we are operating a national program in every district in the 
Country and not merely in hers.
    Mr. Oberstar. Yes, we fully understand.
    Mr. DeFazio.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Mr. Chairman, I don't think we can live with the 
uncertainty of the Rapanos decision and some of the ill 
intended effects that can grow from that. On the other hand, as 
you know, I have expressed some concern, and you have indicated 
here today some flexibility in terms of the wording of this 
legislation. I am hopeful this hearing will lead us down that 
path.
    I, like Mrs. Miller, have been charged with implementing 
both my State and Federal regulations in this area when I was 
county commissioner and out looking at depressions in the 
earth. In Oregon, those depressions fill with water a fair 
amount of the time in the winter and then determining plant 
structure and soil types and all sorts of things to determine 
whether or not we were dealing with an ephemeral wetland or 
just the Oregon landscape itself. That is what is of particular 
concern to me with the bill as written here.
    When we talk about all intrastate waters, then we talk 
about activities affecting those waters, really the crux of 
this bill is: What is a water?
    Before Rapanos, we had to consider what water was within 
Federal jurisdiction or, in my case, Federal or State because 
we had protections in both areas. Now we have to consider what 
is water and then I guess we would have to go through some 
rulemaking. I certainly think we need some honing in on this 
issue, and I think others from the Northwest might agree.
    At what point does water running down any slope in the 
western side of Oregon, Washington and northern California 
constitute--I mean as raining is running off, which it is today 
since we are having an abnormally late, cold, wet winter--does 
that constitute water that would be regulated by the Federal 
Government when activities affect it: timber harvesting, 
Christmas tree harvesting, other activities, certainly 
building, affect drainage from those areas?
    I mean there is a whole host of issues that I think are out 
there. I guess I would ask these particular experts, do they 
agree with that?
    I have read through all the testimony, and I am getting 
this through reading other testimony that will come later 
because I am not a lawyer. I have been charged with trying to 
implement this stuff, but I am not a expert on it.
    Would you share? Do you think that is a fair 
characterization of where this might take us? What is water?
    Mr. Woodley. Yes, sir. Yes, sir, I do.
    Mr. DeFazio. Then how would we deal with that issue, like 
particularly in the instance I have talked about where we have 
a slope in the State of Oregon today and for 180 or 200 days 
this year there has been water running down that slope, but 
that happens to be all of western Oregon, Washington and 
northern California?
    Would that become potentially regulated?
    Mr. Woodley. Yes, sir, I would think that you would have 
to. As I would read the statutes, it would appear to be 
sufficiently broad to give you a very, very strong argument 
that all of those rivulets that you describe would be 
jurisdictional waters of the United States.
    Mr. DeFazio. Okay. I have a bunch of them in my back yard. 
Does anybody else agree with that or want to comment?
    Mr. Grumbles. Congressman, I would just say that I think 
the key is to be able to clarify what the terms are in the bill 
and that it could, in its current form, it could be more than 
simply restoring, probably is more than simply restoring 
jurisdiction. It could be expanding jurisdiction in some 
respects, and I think that is certainly the case by using the 
activities phrase that you mentioned earlier.
    The other dialogue we have been having in the hearing is 
the need to also make clear that when you are referencing or 
incorporating some of the existing exemptions in the 
regulations, exemptions from Federal jurisdiction, but you 
don't reference them, others are those others like prior 
converted cropland exemption or waste treatment systems 
exemption. Does that mean that those are now repealed or, in 
some way adversely affected?
    So the basic point, I think, from an EPA perspective is 
that we would want to work with the Committee to clarify terms 
and also understand what the provisions mean in the bill 
because, in its current form, it could lead to more uncertainty 
and a broadening of jurisdiction in some cases and certainly 
that could lead to litigation as well.
    Mr. DeFazio. Okay. Thank you.
    Thank you, Mr. Chairman.
    Mr. Oberstar. Mr. Westmoreland.
    Mr. Westmoreland. Thank you, Mr. Chairman. Thank you for 
yielding.
    Just to kind of follow up on that, so it is the belief of 
at least, I think, three of the panel members--I don't know 
about Mr. Lancaster--that this would broaden the scope of the 
Clean Water Act?
    Mr. Lancaster. Let me just clarify on our position. We are 
not the regulatory agency. The authorities for our program are 
not affected, but we work with the producers.
    Certainly when you are looking at the regulatory agencies 
and if there is uncertainty among those agencies of what the 
legislation intends and how they would enforce it, our workload 
may be affected. But in terms of what we do as an agency, how 
we work with producers, how we enforce our small bit of 
regulatory authority, which is conservation compliance, it is 
not affected by the Clean Water Act. So my silence is really 
just a reflection of what our agency's role in regard to the 
Clean Water Act.
    Mr. Westmoreland. Mr. Woodley, I know there for a while you 
all had a very big backlog of 404 permits and people trying to 
get those. Is that backlog down now and do you think that this 
bill, as it is written today, would put more of a burden on 
what the Corps actually does and actually lengthen some of the 
time of this permitting process?
    Mr. Woodley. I believe that we have, to some degree, 
reduced our backlog although it remains unacceptably high. Part 
of that is one of the reasons that we have increased our budget 
for this activity in every year that I have presented a budget 
until the one just presented for 2009 in which we kept it level 
for 2008 to 2009 in spite of the fact that our budget overall 
for the Corps of Engineers Civil Works was reduced.
    My answer is that I don't have a detailed work analysis for 
how this would go. The current is true, that you would have to 
recognize that the Supreme Court decision also calls for a 
great deal of analytical work to be done.
    So if that analytical work was less than had to be done 
under this, then the fact that this might potentially increase 
the geographical scope might wash out. If the geographical 
scope of our jurisdiction led to more permits but each permit 
required less work, we might not have a regulatory burden, but 
I think we would want to understand that.
    In any case, I believe that this program will continue to 
need substantial increases in resources devoted to it just in 
order to make as efficient as it can be.
    Mr. Westmoreland. Should I take that as a maybe?
    Mr. Woodley. Yes, sir.
    Mr. Westmoreland. Okay. I didn't know if it was a yes or a 
no but a maybe.
    Mr. Woodley. A strong maybe.
    Mr. Westmoreland. Okay.
    Mr. Grumbles, what is the EPA's opinion of this as far as 
how you and Mr. Woodley have worked together, the Corps and the 
EPA have worked together as far as coming up with regulations 
that you have put into effect since the two Supreme Court 
rulings?
    It seems to me like those have been pretty effective and 
really have kind of streamlined somewhat of what the system 
really had been before those two Supreme Court decisions came 
down. I look at it as at least getting you two together to work 
and to come up with something that you could both agree with.
    In light of your testimony that these wetlands are actually 
increasing every year, it doesn't seem like the Supreme Court 
decision had a negative impact on what is really happening to 
our wetlands and, if it has done anything else, improved the 
404 process. Am I right or wrong?
    Mr. Grumbles. On the first point, I think there is no doubt 
that we have increased coordination efforts because we wanted 
to and also because we needed to with the uncertainties from 
the Supreme Court. And so, we need to continue to work on that 
and improve that because the regulated community as well as the 
environmental community heed to have as seamless as possible a 
coordination between the two agencies.
    EPA's role is not as the primary permitting agency but 
laying out the guidelines, the procedures and also making the 
ultimate call on geographic jurisdiction or exemption 
questions, but we feel like we have made good progress and we 
work together closely and identify policy issues and elevate 
those to headquarters as needed.
    On the other question or comment, I think there are two 
aspects to look at. One, the President's new goal for the 
Nation that he announced on Earth Day 2004 was, aside from the 
regulatory programs and the no net loss goal that is part of 
our regulatory programs, he wants to see an overall gain in 
wetlands using voluntary stewardship programs and that coupled 
with the regulatory program under the Clean Water Act or other 
regulatory provisions is the way to go.
    There is no doubt in my mind and from an EPA perspective 
that the Supreme Court decisions have caused concern in part 
because of the uncertainties for the regulated community and 
for us on carrying out the Clean Water Act. We think we are 
doing as good a job as we can. We need to review or revise or 
make appropriate changes to the guidance we issued in the 
regulated community.
    But while we do that we think it is very important to use, 
with the Farm Bill tools that they have, the other programs, 
Interior programs and work closely with the States to increase 
their capacity for State wetlands programs. We think that will 
help us all focus on not just the regulatory legal issues after 
the Supreme Court decision but on reaching the greater goal 
which is an overall gain in wetlands, and we feel that we are 
making progress on that respect.
    Mr. Westmoreland. Mr. Chairman, if I could just ask Mr. 
Cruden, a yes, no or maybe?
    Mr. Oberstar. A very brief answer.
    Mr. Westmoreland. That is right, a very brief answer, a 
very simple question. Do you think taking the word, navigable, 
out will cause more litigation?
    Mr. Cruden. I don't think it will reduce litigation.
    Mr. Westmoreland. Thank you.
    Mr. Oberstar. Mr. Baird.
    Mr. Baird. I thank the Chairman for holding this hearing, 
and I thank our witnesses for most informative testimony.
    Mr. Woodley--bluntly, to all of the witnesses--one of the 
things I hear back home a lot is the time it takes to get a 
permit, and it is difficult. You have difficult decisions to 
make, often technical questions to be answered, but also some 
personnel issues and logistical issues.
    Whether or not this bill were to become law, that issue of 
permitting time and speed and efficiency needs to be addressed. 
I wonder if you might comment a little bit about what more can 
be done in that regard and then also if you would add to that 
how this bill would possibly impact or the lack of this bill 
would impact that.
    Mr. Woodley. Yes, sir. We are working on two fronts to 
continue to improve our processing time equation. We have 
established nationwide standards for processing of all types of 
Corps permits and, where they are not met, then we are applying 
these management tools to this issue.
    The first is the one I mentioned. That was that we have, 
and the Congress has strongly supported our efforts, increased 
the resourcing for the regulatory program. We suffered a 
setback in that regard during fiscal year 2007 in which time we 
were operating under a yearlong continuing resolution. Our 
funding was frozen at the 2006 level.
    The passage of the fiscal year of 2008 bill in, I believe 
it was, January of this year has finally freed up the increased 
revenues or increased resources to make a real difference in 
the districts.
    Wherever I go, the district commanders and the regulatory 
chiefs are telling me that they are beginning to see those 
resources. They have recruitment on the streets. So if anyone 
knows a bright and talented young biologist or life science 
person or someone who is interested in regulatory, this is a 
great time to join the Corps of Engineers.
    The other part that we are working on is business process 
transformation, using the principles of the lean system that 
traces back to the Toyota manufacturing for quality and to 
remove as much of the time as we possibly can, and get 
everything put together as quickly as possible and improve our 
business processes. We mapped our business processes for the 
regulatory program, and it was not a pretty sight.
    So we have gone into that process and created the teams 
necessary to eliminate redundancies and really squeeze the non-
value added time out of that, hopefully, by moving the 
resources because we have no intention of solving any problem 
just by throwing money at it. We are moving the resources up, 
bringing the inefficiencies down. We really hope we will see 
substantial increases.
    This legislation, I don't give you any details on what it 
how it would be, but other than the fact that any increase in 
uncertainty or things that people have to relearn is a setback. 
I could tell you that.
    Mr. Baird. I appreciate it. I get that.
    Mr. Woodley. We will make this work. If this is passed by 
Congress, I assure you the Corps of Engineers will move heaven 
and earth to make it work.
    Mr. Baird. Great. I appreciate that.
    Mr. Grumbles, I only one minute left. You seemed ambiguous 
about the issue to which aquifers are protected and who has 
regulatory authority over the protection of aquifers. Do you 
want to chat about that a little bit?
    Mr. Grumbles. Thirty seconds worth, I would say the Clean 
Water Act understands that groundwater is important to surface 
water and to the whole ecosystem, but it doesn't provide 
regulatory authority to the Federal Government for activities, 
discharges into aquifers or groundwater.
    Mr. Baird. Even if an aquifer connects directly to a 
waterway, even though you can trace it?
    Mr. Grumbles. Well, no. Then that is where the interesting 
legal aspects get into it. If there is a close, a very close 
hydrologic connection, then in some cases the courts have found 
that that is sufficient enough of a connection. But, generally, 
the general rule is that aquifers are not regulated under the 
Clean Water Act. Groundwater isn't.
    The point is the question came up about the legislation, 
the bill in its current form. I think it is a fair question to 
ask and it can be answered by the Committee, what is the intent 
of the bill? Would it be changing that general rule in some 
way?
    Mr. Baird. It is an intriguing thing that the source of the 
drinking water for the majority of Americans is not protected 
under the Clean Water Act. I will leave that for another 
hearing at some point.
    Mr. Grumbles. Well, it is in the sense of not in a 
regulatory sense. In terms of planning and financial assistance 
and working with States to use their authorities, there is a 
recognition that it is a holistic watershed approach. But in 
terms of 402 or 404, the regulatory aspects, it is really not.
    Mr. Baird. Thank you very much.
    Mr. Oberstar. You are saying there is a connection, though, 
with groundwater or with aquifers and where that connection can 
be demonstrated, the regulatory process has covered.
    Mr. Grumbles. Yes, that is true.
    Mr. Oberstar. Under current law.
    Mr. Grumbles. Under current law and the definition. I mean 
there is a difference between groundwater and aquifers.
    As John Paul Woodley would say better than anyone, you go 
down certain inches into the soil, water, moisture under the 
surface is part of the definition of a wetland which would be 
regulated under the Clean Water Act, using our current 
regulations.
    Aquifers, the general rule has been discharges into 
groundwater aquifers is that it is not, but it gets into some 
case by case determinations in some situations where a 
discharge into groundwater is so closely connected to a water 
of the United States, that some courts have found that that is 
enough to have Federal jurisdiction.
    Mr. Oberstar. Mr. Larsen.
    Mr. Larsen. Thank you, Mr. Chairman. Really, Mr. Chairman, 
thanks for holding this hearing. I know many of us had asked 
for an additional hearing to hear from additional people. I, 
for one, appreciate it and a little while later, maybe around 
midnight, you will be hearing from Skagit County Commissioner 
Don Munks who is on panel three. I appreciate the chance to be 
here.
    A lot of the discussion between now and actually previous 
has been people for or against H.R. 2421. Just listening to 
this testimony, it sounds like it is really more of a matter of 
are you sort of navigable waters plus or are you waters of the 
United States minus. Maybe if we look at that rubric, we might 
have a better chance of coming to a conclusion on legislation 
to address the problem that the Chairman and many others are 
trying to address.
    For Mr. Woodley, I would be interested. Can you briefly 
describe the difficulty in applying two standards as your 
guidance seems to propose, the plurality standard and the 
Kennedy standard?
    Mr. Woodley. Yes, sir. I don't believe we have had a 
significant difference in doing that because in almost every 
case, if it meets the plurality standard, it will also meet the 
Kennedy standard. There is a theoretical possibility of meeting 
the plurality standard without meeting the Kennedy standard, 
although I don't believe I have ever seen that in the real 
world.
    Mr. Larsen. Also, Mr. Woodley, if the legislation proposed 
was signed into law--and for you, Mr. Grumbles, too--would the 
Corps and EPA have to promulgate new regulations or could you 
simply apply the 2007 guidance document?
    Mr. Woodley. I believe we would be called upon to issue new 
regulations to properly implement the new legislation.
    Mr. Larsen. Mr. Grumbles?
    Mr. Grumbles. You said the bill in its current form?
    Mr. Larsen. In its current form.
    Mr. Grumbles. I think it would behoove both the agencies to 
work to provide some greater clarity or certainty as to what 
terms meant and how we were going to be interpreting those 
terms and implementing them through regulations.
    Mr. Larsen. Yes.
    Mr. Cruden, on page 10 of your testimony, you discuss a 
Seventh and a Ninth District Court decision, the Seventh 
Circuit being the U.S. v. Gerke and the Ninth Circuit, Northern 
California River Watch v. City of Healdsburg.
    On the Ninth Circuit decision, in your testimony, you said 
that the court initially stated that Kennedy's concurrence was 
the controlling law, that the significant nexus test was 
controlling, but that DOJ filed a motion asking the court to 
clarify the statement by recognizing--this is from your 
testimony--by recognizing that jurisdiction may also be 
established under the plurality standard.
    In that case the Ninth Circuit, at least initially, not 
only applied the Kennedy standard but said the Kennedy standard 
only applied?
    Mr. Cruden. That is correct, before they amended their 
opinion. Then, after we filed the brief, they amended their 
opinion and added a few words to limit their decision to that 
particular.
    Mr. Larsen. The language here is for our case.
    Mr. Cruden. Yes, and so we believe that gives us some 
ability in the future in the Ninth Circuit to argue in a 
specific factual setting that the plurality decision, if it was 
applicable, could be used. That was not decided at all.
    Mr. Larsen. Okay. I haven't been through your entire 
testimony, but has there been a case since Rapanos where you 
have filed an amicus brief for the opposite? That is a court 
used the plurality standard solely and neglected to apply a 
significant nexus?
    Mr. Cruden. No. All of the courts that we have dealt with 
so far have been using either the Kennedy test or both tests. 
That has been where we are.
    As I have mentioned in my testimony, we take the position 
we could meet either test. As you know from reading it, the 
First Circuit has agreed with us. The Eleventh Circuit recently 
disagreed with us.
    Mr. Larsen. Disagreed? The Eleventh Circuit disagreed with 
you on applying?
    Mr. Cruden. The Eleventh Circuit applied solely the Kennedy 
test.
    Mr. Larsen. So the Eleventh Circuit applies solely.
    In the Ninth Circuit, they agreed to say in this case, 
Kennedy applies.
    Mr. Cruden. That is correct.
    Mr. Larsen. But, as a general rule, we are going to apply 
both.
    The Eleventh Circuit came to a conclusion that we are only 
going to apply the Kennedy, thank you very much, Department of 
Justice.
    Mr. Cruden. That is correct. It was a case called Robison. 
It was in a criminal context.
    We strongly disagree with the decision. We filed en banc 
very recently. The Eleventh Circuit denied our en banc 
petition, but two judges dissented. That case is under review 
right now.
    Mr. Larsen. Where is the Eleventh?
    Mr. Cruden. Atlanta.
    Mr. Larsen. Atlanta, okay.
    If I just might, Mr. Chairman.
    Mr. Oberstar. Very briefly. We are about to have votes, and 
there are other Members.
    Mr. Larsen. Then that is fine, Mr. Chairman. I appreciate 
it very much. Thank you.
    Mr. Oberstar. Mr. Petri.
    Mr. Petri. Thank you very much, Mr. Chairman. I appreciate 
your scheduling this very important hearing and introducing 
legislation that raises the issue.
    I would just like to state that I hope that as we move 
forward in considering that legislation you are open to, on the 
basis of testimony and other discussion, refine it. As you 
know, there has been considerable pushback to either the 
perceived or actual breadth of the legislation and some 
uncertainty as to how it would actually be interpreted as far 
as some respects of the bill are concerned.
    I think the intent is to try to help clarify things and to 
restore disputes that have come up or differences, resolve 
differences of interpretation in different parts of the Country 
and different courts.
    Mr. Oberstar. If the gentleman would yield, I was very 
explicit in my opening remarks about open to change, open to 
adaptation.
    The purpose of this hearing is to get a range of views on 
the implications of the bill as introduced. I explored with the 
present panel various adaptions of the existing language in the 
bill, and I will be happy to discuss the matter with the 
gentleman further.
    Mr. Petri. Thank you, because I do know that before the 
Supreme Court decision, we had considerable legislative 
business having to do with Corps of Engineers perceived or 
actual jurisdiction down to small subdivisions and other 
developments, and it really was not what you would call an 
elegant administrative situation. They just did not have the 
administrative capability to deal with a lot of the smaller 
issues, and the result was considerable frustration and 
confusion among our constituents.
    So I am hoping that if we do address this, that we do it in 
a way that reduces confusion rather than recreates it.
    I would just ask Mr. Ben Grumbles, who has always sat there 
but has sat on both sides of the legislative divide, being a 
hard-working staff member on this Committee and now being in 
the executive branch, if you have any advice as to how we might 
improve the legislation that is currently before us.
    Mr. Grumbles. Thank you, Congressman.
    As I mentioned a little bit earlier before you came in the 
hearing room, we stand ready to work with the Committee as does 
the Corps, I know.
    There are some key terms in the bill or questions that have 
arisen. One is the reference to activities triggering a need 
for a permit. The other is clarifying whether or not certain 
exemptions that may not be stated in the statute but are in the 
regulations, whether they would be affected in some way by the 
bill in its current form.
    Then we also think it is important to look at some of the 
other aspects of the bill: the Federal-State relationship and 
potential unintended consequences. And, then the key one is 
having further discussion about the advisability or not of 
deleting that phrase, navigable waters.
    So those are some of the areas that EPA and the Army Corps 
look forward to having further discussions with the Committee 
on.
    Mr. Oberstar. Mr. Salazar.
    Mr. Salazar. Thank you, Mr. Chairman. I appreciate, first 
of all, your willingness to listen to us and your willingness 
to have this hearing.
    I think I am the only farmer left in the whole Committee. 
So my question is for Mr. Lancaster.
    As you know, there has been widespread support for the 
wetlands reserve program and the EQIP and WRP programs which 
have apparently netted a net gain in wetlands throughout the 
United States. I guess I would ask you in light of what is 
currently before us, this current legislation, do you believe 
it would have a negative impact on the net gain of wetlands and 
how much of that net gain?
    I think that Mr. Grumbles talked about the 44,000 acres, if 
I am correct. Was it you? Forty-four thousand? How much of that 
is actually agricultural land?
    Mr. Lancaster. For agriculture, the number is 44,000 acres 
a year. I believe that the total number is?
    Mr. Grumbles. Thirty-two thousand through the National 
Wetlands Inventory that the Department of the Interior Fish and 
Wildlife Service issues.
    Mr. Salazar. Okay. What I would like you to focus on, as we 
have been focusing on all the negatives on the current 
legislation, I would like for you to make a positive 
recommendation as to how we make this better as the Chairman 
has clearly stated that he is willing to work with all of us to 
make this a better place for all Americans.
    Mr. Lancaster. Again, I will confine myself to our 
programs. Our programs are voluntary incentive-based programs. 
Landowners choose of their own volition that they would like to 
enroll lands in the Wetlands Reserve Program for 30 years or 
permanently, and those are decisions where they need to take 
into consideration what activities will they be able to 
continue to use those lands for, what liability are they 
incurring as we make these decisions.
    Likewise with the Environmental Quality Incentive Program, 
our cost share program. Landowners are making a significant 
investment. As you know, in agriculture, it is difficult to 
make small changes to your operation. There are significant 
costs associated with those changes.
    So the question really is what certainty does a producer 
have in their decisionmaking? If I agree to enroll my land 
permanently in the Wetlands Reserve Program, to give up my 
right to use that land for anything other than quiet enjoyment 
and whatever compatible use I might negotiate with the agency, 
what risk do I face with regard to the Clean Water Act in any 
definition of activity and what those activities might be?
    So it is difficult for me to answer from an NRCS 
perspective because how we work will not change. Who we work 
with, and when we work with them may change based on the scope 
of how this legislation might be implemented.
    My suggestion again would be to be clear in the intent, 
clear in the legislative language, clear with the regulatory 
agencies so that producers have some certainty. If I am going 
to enroll my land--and many producers, as you know, are land 
rich but cash poor--if I am going to enroll my retirement 
program and my children's retirement program in a permanent 
wetland, what uses will I have, what liability will I be 
subjected to?
    My advice again on this is to work closely with the 
regulatory agencies to make clear the intent of the legislation 
so that the regulations that come out can be as clear as 
possible, so that certainty can be provided for those 
landowners who are, to date, taking great strides in enrolling 
their lands in these programs. Demand for our program far 
exceeds available funding. Producers are doing the right thing. 
They want to do the right thing.
    The question for me from them really is what certainty do 
we have that we will not be penalized in the future for these 
actions?
    Mr. Salazar. Thank you, Mr. Chairman.
    I will yield back so that the other two Members can ask 
questions before we vote.
    Mr. Oberstar. I thank the gentleman and very much 
appreciate his participation and his substantive contributions 
to our discussion on the pending bill.
    Mr. Space.
    Mr. Space. Thank you, Mr. Chairman. Again, thank you for 
calling this hearing.
    Mr. Oberstar. I should observe that there are 9 plus 
minutes remaining on this vote and 426 have not yet voted.
    Mr. Space. Thank you, and I will keep it brief.
    Mr. Lancaster, I want to direct my question to you and 
anyone else on the panel could feel free to contribute if you 
feel it is appropriate.
    You know I am hearing a lot from the farmers in my district 
who are very concerned about the proposed language of 2421. I 
think that there is a lot of hyperbole surrounding this. I mean 
I am getting complaints from farmers who are worried that mud 
puddles and bird baths will become subject to EPA and the Corps 
of Engineers oversight. Clearly, there was some exaggeration.
    I am trying to figure out a way to cut through the 
hyperbole and make an accurate assessment of the kinds of 
producers and activities, in particular with respect to farming 
and agriculture, that might be subject to expanded jurisdiction 
under the revised language that would not be subject to such 
jurisdiction right now.
    In your testimony, you indicate that that is the case. I 
would be curious as to know whether you have any specific 
activities or producers that would be affected.
    Mr. Lancaster. Congressman, again, the question for us as 
we work with producers is the uncertainty. The legislation, as 
introduced, I believe it has both deleted the term 
``navigable'' and changed the term ``discharges'' to 
``activities.''
    Both of those result in questions: What activities would 
now be subject to this? What activities would enjoy the savings 
clause? Which activities would require permits? Which 
activities, as the Corps and EPA might promulgate regulations, 
might be considered normal farming activities if activities 
might change in any way?
    So the question is not this is what the legislation will do 
or won't do for us, but for the producers I have interacted 
with, as we look at implementing our program, it is more a 
question of uncertainty. What could it do?
    I think that is the question that Assistant Administrator 
Grumbles and Secretary Woodley have discussed, which is they 
view this as an expansion which would then beg the question for 
the producer, how am I affected by that expansion?
    Right now, through USDA, we simply don't know. There could 
be no effect on producers who are affected by the savings 
clauses. The legislation may or may not include prior converted 
cropland and how producers might be affected who have those 
designations on their land. But the question really right now 
is just the uncertainty.
    I would have to defer to my colleagues who would be 
implementing it.
    Mr. Space. I guess it would depend on the interpretation by 
the various administrative agencies as well as judicial 
interpretation. We don't have time to go into that. I wish we 
did.
    But I would be curious to know if and, in fact, welcome any 
member of the panel that might offer suggestions to provide 
more clarity in the legislation to avoid those uncertainties, 
minimize permit processing times, and perhaps even expand or 
develop the savings clause or exemptions to help bring clarity 
and brevity to the process.
    Again, I thank you, Mr. Chairman, for this opportunity. I 
yield back.
    Mr. Oberstar. I thank the gentleman.
    Ms. Hirono.
    Ms. Hirono. Thank you very much.
    I have a pretty basic question. There are all kinds of 
fears being expressed about this legislation, and my colleague 
next to me just expressed some from his constituents, and we 
have all heard those.
    My question is, though, since there is so much confusion 
that was attendant to these two decisions which were supposed 
to hopefully clarify the Clean Water Act but they did not, and 
then the guidance, those having guidance based on these 
confusing decisions. There are those who say, well, let's let 
the guidance proceed, let's implement them, et cetera.
    Don't you think that it makes sense for Congress to really 
focus on being the voice that provides the clarification 
because, after all, it is the language that Congress comes up 
with that is going to be interpreted by the courts?
    At this juncture, as we sit here with this bill and in the 
environment of, well, Congress, you don't have to do anything 
because it is too confusing, I don't want us to be in a 
position where we are not moving forward on this bill in a 
reasonable way with your help and with the help of others in 
the community.
    Mr. Grumbles, what are your views on this?
    Mr. Grumbles. Congress has a hugely important role in this, 
obviously, and you are correct as you ask the question.
    EPA believes in working that the Corps, that it is a 
sequencing process where it makes sense for the agencies who 
are closest to the ground to develop guidance as we did, to 
road test, to see how it is playing out which we have done and 
continue to do. Then from there, we can make our decisions 
about whether to revise the guidance or reissue it or suspend 
it and take a different approach while we are working with 
Congress on this issue.
    So we don't have an official position yet on whether 
legislation is needed at this time, but we certainly have an 
official position of wanting to work with the Congressional 
Committees, whether it is in oversight hearings to review what 
is happening or to get views on proposed legislation.
    Ms. Hirono. Well, the reason I ask the question in that way 
is really your guidance is based on very confusing case law, 
and so I don't see why we should proceed in that vein as 
opposed to Congress saying, all right, we are going to provide 
the statutory language that will clarify matters.
    Thank you.
    Mr. Oberstar. We now have four votes in progress, and three 
minutes remaining which could take as much as forty minutes. So 
we will remain. We will be in recess at least until 10 minutes 
after the conclusion of the last vote.
    The Committee stands in recess.
    [Recess.]
    Mr. Oberstar. The Committee will resume its sitting.
    I appreciate the patience of all the witnesses, especially 
those of the first panel who have been here a very long time, 
unfortunately, the interruption of votes.
    I have just one, perhaps one question or a series of 
questions.
    Mr. Grumbles, EPA testifies that waters of the United 
States is an important factor but not the only factor in 
determining whether an NPDES permit is needed for a particular 
discharge. Then your testimony refers to Justice Scalia's 
comment that his construct of the Act does not necessarily 
affect enforcement of Section 402 related to point sources.
    Now there is only one prohibition on a discharge of 
pollutants in Section 301 and one definition of navigable 
waters in Section 502. Is there a distinction to be made 
between waters where it is unlawful to discharge a pollutant 
without complying with 402 and the waters where it is unlawful 
to discharge without complying with Section 404?
    Mr. Grumbles. Well, Mr. Chairman, I think what I am 
attempting to convey is that it is true; we all agree that 
there is one definition, one waters of the U.S. in the Clean 
Water Act, and that applies to 402 and 311 and 303 as well as 
404.
    The point we are trying to make is the point that Justice 
Scalia made, and that is in 402, it doesn't have to be a direct 
discharge into waters. It could be an indirect discharge into 
waters. So that is why he was describing, as I recall, in his 
portion of the case, that the standard or test he is laying out 
in the 404 construct may not affect aspects of enforcement 
under 402 because there could be a 402 discharge further 
upstream that doesn't directly get into waters of the U.S. but 
indirectly gets into waters of the U.S., and that is our view 
as well.
    We recognize in one of the important aspects of this whole 
challenge for us in implementation of the Rapanos guidance and 
considering additional guidance under other sections of the Act 
is working closely with our State partners to see what their 
experiences are, if there are in fact impacts on non-404 
programs.
    Mr. Oberstar. Yes, very good. You did a good job of 
threading your way through the complexities here, but if I were 
a State regulator, if I were a contractor or a builder or an 
advocate for an environmental organization, I would find it 
very difficult to try to understand. Are we dealing with the 
mind of Scalia? Are we dealing with the mind of Kennedy? Are we 
dealing with neither?
    We spent two years holding the hearings, crafting the 
language, ten months in House-Senate conference, writing what 
we thought was very clear, very specific. Then, 30 years later, 
the Court is confused about its interpretation of the bill, and 
now we are confused about what the Court means.
    So I am trying to bring some clarity back to it. You have 
helped with your explanations.
    Further, you have the loosely described Kennedy test and 
the Scalia test. Kennedy discussed traditional navigable 
waters, and Scalia addresses continuously flowing or permanent 
waters.
    Mr. Cruden, is there a distinction or a difference or is 
there a difference without a distinction?
    Mr. Cruden. No. There is clearly a difference. As you 
rightly point out, that is the opinion's wording, that there be 
continuous flowing waters. Yet, there are footnotes in the 
Scalia opinion that elaborate those words, where he makes it 
clear that seasonal flow may well be included in his definition 
of continuous flowing.
    So when we are applying Rapanos_and I told you that our 
position is we could meet the jurisdictional standard by either 
one_we have to apply not only his text but his footnotes as 
well. So that complicates our job of trying to explain to 
courts what we think the correct standard is when we are trying 
to establish and protect wetlands.
    Mr. Oberstar. Secretary Woodley, do you concur in that view 
about these two differing assessments by the two judges?
    Mr. Woodley. Yes, sir. I think that almost any navigable 
water is either subject to the ebb and flow of tide or 
continuously flowing, but there are many continuously flowing 
waters that we would not consider to be navigable.
    But we certainly expect to take jurisdiction over all of 
them if they are tributary, as they almost always are, to a 
navigable water downstream.
    Mr. Oberstar. If you take the Scalia theory or approach of 
indirect discharges, which Mr. Cruden described just a moment 
ago, do rivers and streams then become conveyances under the 
Clean Water Act?
    Mr. Cruden. There is a portion of the opinion by Justice 
Scalia that suggests that as a plausible argument. We have not 
had to make that argument because we have been able to 
establish that the pollutant ultimately found its way into a 
jurisdictional water.
    But you are absolutely right, Mr. Chairman. That is one of 
the things that Justice Scalia suggests might be an avenue to 
distinguish a Section 402 action from a Section 404 action.
    Mr. Oberstar. Well, we certainly could pursue that further 
and try to understand who then is the permit holder, but I 
think for the purposes of this panel and for the purposes of 
revision of the introduced bill, I think we have an 
understanding.
    First of all, the Court did not describe the Clean Water 
Act as unconstitutional, though in your analysis it leaves open 
a question yet to be determined perhaps that could be raised by 
someone else.
    We need to further understand Mr. Grumbles' activities in 
referenced in the language in the bill and its application to 
or inclusion of certain specific provisions in current EPA-
Corps regulations.
    Third, your understanding--yours, Mr. Grumbles, yours, 
Secretary Woodley--of what would be the effect of and how 
appropriately we could word leaving the term, navigable waters, 
where it is exists now in the Clean Water Act, in the existing 
statute, but referencing prior EPA-Corps regulations that are 
prior to the Supreme Court, so we don't leave a lot of 
misunderstandings. We want to continue prior existing 
practices, how we could do that.
    Then, fourth, your assessment or guidance on language to 
include prior converted cropland, which is not included in any 
reference in the Clean Water Act but has come up in 
regulations, and how we could include that term with clarity 
and with reference to regulatory practice in a revised bill.
    Correct?
    And, we can count on your combined legislative counsel, not 
as a statement of Administration position but as a response to 
the clarifying questions.
    Mr. Woodley. Yes, sir.
    Mr. Oberstar. Thank you.
    Mr. Hall.
    Mr. Hall. Thank you, Mr. Chairman, and thank you to our 
witnesses for your patience among other witnesses and your 
expertise.
    I have a strong farming presence in my district, and 
concerns have been expressed to me about reaction to the 
Supreme Court rulings and the future of clean water regulation 
under the CWRA.
    It is my understanding that the savings clause contained in 
the bill would ensure that agricultural activities will be 
treated exactly as they were before the Supreme Court's ruling. 
I would ask you, is that your understanding?
    This will be for everybody. Using my friend, Mr. Boozman's 
term, the plural of y'all, having spent some time in Nashville, 
all y'all being asked this question.
    Is it your understanding that the treatment of agricultural 
activities will be the same as before the ruling, would any 
retroactive permits be necessary for previously unregulated 
activities, and could you comment on your view of the impact of 
this legislation on the regulation of activities like the 
maintenance of diversion ditches, grass waterways, temporary 
wet spots and existing NRCS conservation programs?
    Mr. Cruden, you would like to start?
    Mr. Cruden. I am probably not the right one to address the 
various issues associated with the current legislation. So I 
will actually pass that to Mr. Grumbles.
    Mr. Grumbles. I will, with Arlen Lancaster and John Paul, 
if he wants.
    We have had a lot of discussion in the hearing about 
potential impacts on agricultural activities particularly with 
the bill in its current form.
    I think the prior converted cropland exemption is one of 
the key issues that the bill may raise. It is not addressed in 
the bill. What I have heard the Chairman say is that they want 
to work with us further to recognize that there is an existing 
regulation that does exempt prior converted cropland from 404. 
By not mentioning it in the bill, it raises a question of 
whether or not it would be overtaken, overturned by the bill, 
superseded.
    The other key one, Congressman, is the use of the word, 
activities, rather than the more specific term, discharge of 
pollutant or dredge or fill material. By saying it is 
activities affecting waters that trigger the need for a permit, 
that could bring in certain agricultural activities that hadn't 
previously.
    Mr. Hall. Practices.
    Mr. Grumbles. Practices that had not previously been.
    Now, in the saving clause, there are references to 404(f) 
and the exemptions for silvicultural and agricultural normal 
farming which are intended to preserve those actions. So I 
think from an EPA standpoint, in looking at the jurisdictional 
scope of the bill and potential impacts, I think we still have 
some question and we would need to work on clarifying that.
    Then you raise the issue of retroactivity, and I think that 
is a good question to raise for further discussion in the 
Committee. EPA, with our colleagues, stand ready, willing and 
able to work with the Committee to try to clarify or address 
those concerns about agricultural activities that might be 
pulled in or, in some way, adversely affected by the bill in 
its current form.
    Mr. Hall. Allow me, unless you are dying to add to that, 
since I only have a little bit of time left, to ask Secretary 
Woodley, which specific categories of water bodies would H.R. 
2421 encompass that had never been regulated before under the 
Clean Water Act and where specifically do you see those 
categories identified?
    Mr. Woodley. I think that the most obvious examples of 
that, Congressman, are the playa lakes and prairie potholes 
which are extremely interesting and very significant wetland or 
aquatic resources and which have a great value as wetlands 
habitat and for other purposes.
    But their characteristic is that they are unconnected to 
other water bodies by surface flow. They are connected to each 
other and to other water bodies by groundwater flow typically. 
And so, in times of drought, they will go way down and then 
they will pop back up as the groundwater. But they never 
typically fill up to such a degree that they overflow and form 
a channel that then can be linked downstream to a navigable 
water course.
    That is more an issue related to the jurisdiction 
determination in the SWANCC case than it is related to the more 
recent Rapanos and Carabell cases.
    Mr. Hall. Thank you, Mr. Woodley.
    My time is expired but, Mr. Chairman, I just wanted to 
comment that we have in my district a number of superfund 
sites, and some of them happen to be either on or adjacent to 
wetlands. So we are very concerned about this Solomonic 
decision that we are trying to make about exactly how you 
define where the protection extends to because, sooner or 
later, it all winds up downstream.
    I yield back. Thank you.
    Mr. Oberstar. I thank the gentleman.
    The gentleman from Tennessee, Mr. Duncan, former Chair of 
the Water Resources Subcommittee.
    Mr. Duncan. Thank you very much, Mr. Chairman.
    I am not going to ask any questions, but I would like to 
make a few comments. First of all, I know we need to get on to 
the other panels, but the Congress has done great things in 
regard to the environment over the last 40 or 45 years. 
Chairman Oberstar has been a leader on most of those pieces of 
environmental legislation because most of them have come in 
whole or in part through this Committee, and I think we should 
be very proud of that.
    Mr. Grumbles said a few minutes ago or earlier today that 
in some of his recent work over the last few months in regard 
to the SWANCC and Rapanos decisions, that some of the regulated 
community thought he had gone too far and some of the 
environmental community didn't think he was going far enough. I 
don't know anybody on either side who has worked with Mr. 
Grumbles, who doesn't have great respect for his knowledge in 
this area.
    I am sure that on some of those earlier pieces of 
environmental legislation, probably it was the same way, that 
the environmental community thought they had never gone far 
enough, and maybe some of the regulated community thought they 
were going too far.
    It is true, I think, that this Country has done more in 
regard to the environment than any other country in the world 
really and has gone further, and we have cleaner water. I know 
I have traveled all over Europe and other parts of the world, 
and we certainly have cleaner water than any country I have 
ever been into.
    But can you do more? Can you do better? Sure, you can 
always try and do more and do better, and you should always try 
to do that.
    On the other hand, we have to try to strike a balance at 
some point because some of the environmental laws in the past 
have really hurt the smallest companies or the little guys in 
any industry. I remember a few years ago, when I chaired the 
Water Resources Subcommittee, we had a hearing in regard to 
wetlands, and we had some very small farmers in here who broke 
down and cried because the effect of some of the rulings on 
them and their livelihood.
    I can tell you that one of my grandfathers was a 
subsistence farmer in Tennessee. He had 10 children and an 
outhouse and not much more. So I can tell you my biases and my 
sympathies are with the little guys, and I have been told that 
this legislation could have a very harmful effect on some of 
the smallest farmers and some of the smallest operators in this 
area.
    So I think what we need to try to do is reach some type of 
balance to make sure that we are not just helping the big 
giants that are affected by all of this.
    I read part of the Rapanos decision in which the judge in 
that case said: ``I don't know if it is just a coincidence that 
I just sentenced Mr. Gonzalez, a person selling dope on the 
streets of the United States. He is an illegal person here. He 
is not an American citizen. He has a prior criminal record.
    So, here, we have a person who comes to the United States 
and commits crimes of selling dope, and the government asks me 
to put him in prison for 10 months; and then we have an 
American citizen who buys land, pays for it with his own money, 
and he moves some sand from one end to the other, and the 
government wants me to give him 63 months in prison.''
    The judge said, ``Now if that isn't our system gone crazy, 
I don't know what it is, and I am not going to do it.''
    Then a few months ago, the Knoxville New Sentinel had a 
front page story in which they said: ``Each month's KUB bill 
forces Annie Moore to make some tough choices. The 68 year old 
great grandmother lives on a fixed income from disability 
payments. She recently received a final notice for the $483.96 
she owes KUB for utilities at her East Knoxville home.''
    Then it says, ``After seeing their sewer bills more than 
double in the past two years, Moore and other customers are 
wondering why KUB is proposing water and natural gas rate 
increases. It is making me live like I never lived before, 
Moore said. So she eats simple foods, buys only the most 
important of her medications, goes without luxuries like 
coffee.'' She considers coffee a luxury and so forth.
    I guess what I am getting at in a roundabout, inarticulate 
way is that I think whatever we come up we need to keep people 
like Annie Moore in mind, and we need to keep the subsistence 
farmers in mind because I have noticed over the years that all 
the environmentalists seem to come from very wealthy or very 
upper income families, and that is good for them.
    But we need to keep the little guys in mind and not just do 
some legislation that is only going to help the big giants and, 
hopefully, we can reach some middle ground approach where we 
can do that.
    Thank you, Mr. Chairman.
    Mr. Oberstar. I thank the gentleman for those very thought 
provoking comments and for his own personal experience. It is 
always defining for all of us.
    I have no further questions.
    Mr. Boozman?
    No further questions from the gentlewoman from Virginia?
    So we will hold this panel in appreciation and dismissed 
for the afternoon. Thank you very much for your splendid 
contributions.
    Our second panel consists of Professor Mark Squillace, 
Professor William Buzbee--Professor Squillace from the 
University of Colorado School of Law and Buzbee from Emory Law 
School in Atlanta--Professor Jonathan Adler of Case Western 
Reserve University School of Law and Ms. Virginia Albrecht, a 
Partner in Hunton and Williams in Washington, D.C. on behalf of 
the Waters Advocacy Coalition.
    Oh, and I see that the House has entertained a motion that 
the Committee rise. Well, that is a procedural motion.
    We will begin with Professor Squillace.

   TESTIMONY OF PROFESSOR MARK SQUILLACE, DIRECTOR, NATURAL 
  RESOURCES LAW CENTER, UNIVERSITY OF COLORADO SCHOOL OF LAW; 
   PROFESSOR WILLIAM W. BUZBEE, DIRECTOR, ENVIRONMENTAL AND 
  NATURAL RESOURCES LAW PROGRAM, EMORY LAW SCHOOL; PROFESSOR 
   JONATHAN H. ADLER, DIRECTOR, CENTER FOR BUSINESS LAW AND 
REGULATION, CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW; AND 
  VIRGINIA S. ALBRECHT, PARTNER, HUNTON AND WILLIAMS, LLP ON 
            BEHALF OF THE WATERS ADVOCACY COALITION

    Mr. Squillace. Thanks, Mr. Chairman and Members of the 
Committee.
    My name is Mark Squillace. I am Professor of Law at the 
University of Colorado Law School and Director of the Natural 
Resources Law Center there.
    I am very happy to appear today before this Committee to 
offer my support for the Clean Water Restoration Act of 2007. I 
share the Chairman's view of this legislation, that it does 
nothing more than restore Congress' intent when it adopted the 
Federal Water Pollution Control Act of 1972.
    I want to take a moment to just briefly address this issue 
that has been coming up regarding navigability and whether we 
should preserve this phrase, navigable waters, in the current 
legislation. I think the heart, really, of the proposed 
legislation is the removal of that phrase, and the reason is it 
has always been a square peg trying to fit in this round hole 
of the Clean Water Act.
    The phrase, navigable waters, came from the old 1899 Rivers 
and Harbors Act, particularly Section 13 of that law which was 
known as the Refuse Act, and that statute used the phrase, 
navigable waters. This is part of sort of the history of how we 
got this phrase into the law.
    But when Congress adopted the Clean Water Act in 1972, it 
never intended that navigable waters should be the basis upon 
which jurisdiction was limited. In fact, the statute makes 
clear it was designed to protect the physical, biological and 
chemical integrity of all of our Nation's waters. And so, the 
idea that somehow we should be limited to navigable waters in a 
traditional kind of sense, I think is just wrong.
    One of the great ironies, I think, of what has happened as 
a result of the Rapanos decision is that the Clean Water Act is 
now arguably narrower in scope than the old Rivers and Harbors 
Act itself because the Rivers and Harbors Act in Section 13 
specifically adds the phrase, and their tributaries, to the 
phrase, navigable waters. We, of course, don't have that in the 
Clean Water Act.
    I think it is unfortunate that there is this impression 
that somehow we can keep the phrase, navigable waters, and 
still accomplish the goals that Congress intended way back in 
1972.
    I want to get into some of the more particular issues 
regarding the legislation and my concerns about the 
legislation, and I think there is a lot of reason to be 
concerned about protecting our clean waters.
    We have talked a little bit about wetlands today. It is 
true that we have made some strides, although we might argue 
about how much we have improved our situation with wetlands, 
but it is fair to say that we have lost more than half of our 
wetlands since we settled this Country. Yet, the 5 percent of 
the land base that now remains as wetlands is the sole home for 
one-third or more of our endangered species and it comprises, 
it includes more than 31 percent of our plant species 
throughout the lower 48 of the United States.
    We have also made good progress on our Nation's waterways 
in the past 36 years, but there is a long way still to go. 
Indeed, 40 percent of our waterways still fail to meet State-
established water quality standards for those waters.
    So where do we go from here? How do we improve the current 
situation?
    Unfortunately, I think that the Supreme Court's recent 
decisions in the two cases that have been much discussed today 
have exacerbated the problems that already exist with 
protecting our clean water. These decisions have forced 
agencies into these complex ad hoc, site-specific judgments 
about whether certain waters have a significant nexus with 
traditional navigable waters.
    It is my belief that the implication of this obligation 
seriously compromises our government's ability to protect our 
Nation's waters, and we can only fix this problem through 
legislation.
    We have already heard, at some length, two of the principal 
objections that have been raised to this legislation. One is 
the claim that the proposed legislation usurps State and local 
authority. A second is that the proposed legislation expands 
the scope of Federal authority far beyond what Congress 
originally intended.
    I would like to briefly address both of those issues and, 
if time permits, to suggest a couple of places for improving 
the law.
    First, regarding the proper role of State and Federal 
Governments, it is worth noting here we are dealing with water, 
and we all recall from high school science class that water 
exists in a unitary hydrologic cycle. Trying to draw lines 
between that which should be regulated by the Federal 
Government and that which should be regulated by the States and 
local governments will necessarily be arbitrary, and it thus 
should be no surprise to us that the Supreme Court's recent 
decisions have led to a state of regulatory chaos.
    The Corps is now issuing more than 100,000 time-consuming, 
often complex and difficult jurisdictional determinations each 
year. As we have already heard from Mr. Cruden, the number of 
cases that the Justice Department is seeing, contesting these 
jurisdictional determinations is increasing at a fairly high 
rate.
    Think of the resources we are spending, drawing lines that 
might otherwise be spent protecting our Nation's waters.
    Of course, if the Federal Government really lacked 
jurisdiction or constitutional authority to engage in this 
practice or if the States were clamoring to preempt Federal 
authority in this area, perhaps this issue would have more 
resonance. But Congress plainly does have constitutional 
authority under the Commerce Clause and the Treaty Clause and 
perhaps some other authorities, and the only clamoring I am 
hearing from the States is their enthusiasm for broad Federal 
regulation.
    For me, one of the most telling facts about the Rapanos 
decision was the fact that 34 States and the District of 
Columbia signed an amicus brief supporting broad Federal 
jurisdiction in that case. That hardly sounds like a situation 
where the States are asking for more regulatory power.
    The other concern that we have heard about is the fact that 
the Clean Water Act does more than restore but really expands 
the scope of the regulatory power under the law. I know that 
the proposed legislation has raised some special concerns for 
some of the people in the western States who believe that it 
may interfere with the States' authority to regulate water 
rights, and I would like a moment, if I can, to try to address 
that issue.
    Mr. Oberstar. I would like you to summarize it because we 
are running short.
    Mr. Squillace. Okay, I will try to do that.
    The bottom line here is that the statute preserves in its 
language, the Wallop Amendment protecting States' rights. It 
preserves the specific exemptions from Section 404 for the 
construction and maintenance of stock ponds and irrigation 
ditches and for normal farming and ranching activities and, 
under Section 2, for discharges comprised entirely of 
agricultural return flows.
    If I could make just one more point, Mr. Chairman, and it 
concerns my State of Colorado and some of the issues that are 
raised with regard to navigability there. We have talked a lot 
about the problem of navigability here, and it is not well 
known that there is a 1913 decision from the Colorado Supreme 
Court that essentially finds that there are no navigable waters 
in the State of Colorado.
    That may sound surprising, but there is a 1979 case, not so 
long ago, where the Supreme Court of Colorado held that the 
Colorado River itself is not a navigable water, and I think it 
won't be long before someone, at least, decides to challenge 
the authority to even regulate under the Clean Water Act in the 
State of Colorado.
    Thank you very much, Mr. Chairman.
    Mr. Oberstar. Thank you, Professor Squillace.
    I see we have six minutes remaining on this vote. I think, 
since there is only one vote, we should break at this point and 
come back promptly, forthwith.
    [Recess.]
    Mr. Baird. [Presiding.] The Committee will reconvene.
    We apologize for the interruption, and the situation is 
that we expect another series of votes in a little bit. But so 
that we can continue with the testimony, I know some of you 
have flights to catch. We apologize for the duration of this 
proceeding, and we are grateful for your indulgence.
    I think we left off with Mr. Buzbee about to speak.
    Mr. Buzbee, thank you. We look forward to your comments.
    Mr. Buzbee. Thank you very much, Mr. Chairman and Members 
of the Committee.
    I am Bill Buzbee. I am a Professor of Law at Emory Law 
School in Atlanta. There, I direct the Environmental and 
Natural Resources Law Program.
    I have been involved with issues concerning what are 
protected waters of the United States for several years, first 
representing a bipartisan group of EPA administrators before 
the Supreme Court in Rapanos in an amicus brief, and I have 
testified in two previous rounds of Senate hearings involving 
this issue.
    I am going to make three basic points. The first is that 
the Restoration Act is necessary in light of weakening of the 
Clean Water Act by the Supreme Court in SWANCC and Rapanos.
    Mr. Chairman, my clock is not working, in any event.
    Mr. Baird. Then your time is now up.
    [Laughter.]
    Mr. Buzbee. Thank you so much. I am glad I traveled here.
    As I was saying, there are three main points I am making. 
The first is that the Restoration Act is necessary in light of 
weakening of the Clean Water Act by the Supreme Court in SWANCC 
and Rapanos. The second is the Restoration Act is a sound, 
limited, focused amendment restoring the reach of the law. 
Then, third, I want to address some of the criticisms and 
questions about the reach of the restoration act raised today 
and in testimony submitted for today.
    So, first, regarding the weakening of the Clean Water Act, 
I would say the current situation is not acceptable. I think 
every witness agrees the Clean Water Act has been a resounding 
success, but that doesn't mean it can remain unchanged.
    It has been substantially weakened by the Supreme Court. 
The Supreme Court, in SWANCC and Rapanos, unsettled a 
bipartisan, three decade, broadly protective view about what 
counts as waters. Now the decisions and the responsive guidance 
have undercut the Act in three ways:
    It has undercut this broad, shared view about what counts 
as waters and removed many waters from protection, especially 
after the SWANCC case.
    As the previous panel said, it has fostered a confusing 
regulatory and jurisprudential mess with splintered judicial 
approaches, regulatory interpretative uncertainty, delay, 
regulatory inattention and inertia_a wonderful situation.
    The cases substituted judicial views of policy that really 
downplayed or ignored the Clean Water Act's integrity goals, 
disregarded previous Supreme Court precedents and, especially 
important, they eliminated longstanding deference given to 
agencies in this area.
    Very important, as the Chair said shortly before the break, 
the weakening of the Clean Water Act here is not just about 
Section 404 and wetlands as some people seem to imply in their 
focus. The provision about what counts as waters of the United 
States is the jurisdictional hook for the whole statute, 
including the industrial pollution discharge permits and oil 
spill provisions. Anyone looking at the reach of the statute 
has to think about this repercussion of these cases.
    So there are four options:
    One is to do nothing. I don't think that is an option. 
There are real harms happening. I was happy to hear a consensus 
that there is a need to do something here today.
    A second is just allow litigation to work it out. I don't 
think that is going very well.
    Another is to implore regulators to fix the mess. That 
would be the third option. Because the Supreme Court's rulings 
are direct Clean Water Act constructions, I think there is 
greatly reduced latitude for a regulatory cure.
    Then last is to pass a curative piece of legislation. So, 
let me turn to that.
    It is hard to imagine a more limited and focused corrective 
piece of legislation. What it does is it takes a key 
interpretative regulatory definition and makes it part of the 
statute, and that is all it does. It is very focused.
    It makes clear the statutory intent to reach water within 
Federal constitutional powers. This is important because 
concern about the intended reach of the statute has driven some 
of the Supreme Court's limiting constructions.
    It is also very important because it does not monkey with 
other provisions. Its very focused aspect is part of the beauty 
of it.
    Then, lastly, in the findings, it has sound factual and 
scientific findings that are clearly well based and important 
to consider.
    Today, there has been some confusion about this language of 
activities which is in that key definitional clause. Let me 
turn to that for a moment. The language of 404, Subsection 24, 
lists off. It enumerates the sorts of waters that are protected 
by name and then it says, ``to the fullest extent that these 
waters or activities affecting these waters are subject to the 
legislative power of Congress under the Constitution.''
    What this provision does, this is kind of a jurisdictional 
sweep-up provision that says these sorts of waters are 
protected if they are within Federal constitutional power or 
activities affecting them are. It is not separately creating a 
category of activities that is subject to regulation.
    Only if the enumerated waters are implicated are they 
reached. Then you have to turn to the separated operative 
provisions of the Clean Water Act, and only then if you have a 
point source discharge under Section 301 and it doesn't fall 
within the nationwide or other sources of flexibility does the 
Federal Government have jurisdiction. So I think people have 
misunderstood and looked at that word in isolation instead of 
in context.
    Second, as Professor Squillace said, leaving in this 
``navigable waters'' language would completely undercut the 
entire purpose of this bill. The Supreme Court has twice, in 
very important and recent cases, fastened upon that word and 
used that word in part to drive the limiting constructions of 
the Act. If you leave that word in, I think this bill will 
basically do little or nothing, and that would be a mistake.
    Now, let me address a few criticisms in my few remaining 
seconds. One, is this limitless Federal power, as several 
people have said? The answer is no. It is all linked to these 
enumerated waters. It is not unprecedented. The sorts of waters 
protected have been in the regulations for three decades.
    Second, does it reach every conceivable sort of colorable 
waters such as ditches, drains and bird baths? The answer is 
clearly not. They are not listed there. I looked very hard. 
Okay.
    Is groundwater reached? No. They are not among the 
enumerated waters. The Clean Water Act can reach groundwater 
through some other provisions as Mr. Grumbles stated in the 
previous panel. I don't see these particular language choices 
as upsetting that particular statutory balance.
    Lastly, is this constitutional? Is the language about 
legislating to the limit of constitutional power appropriate 
or, in any way, itself a constitutional problem, as some 
commentors suggested? On that front, I would say definitely 
not. You all have to legislate against the background of what 
the Supreme Court has done, and the Supreme Court has read the 
statute not to reach to the limit of Federal constitutional 
power. If you want to reach that far, you need to state so or 
the Supreme Court and lower courts will find it to be 
inadequate.
    Then, lastly, there is this kind of theory that this law 
would crowd out, and then I will stop--this is truly my last 
point--would crowd out or undo the federalism balance in the 
Act, and it does no such thing. All of the cooperative 
federalism provisions remain in the Act. All of the savings 
clauses remain in the Act. There is nothing in this law that 
does more than take the regulatory provision regarding 
protected waters and make it statutory.
    Thank you.
    Mr. Baird. Thank you, Professor Buzbee.
    Professor Adler.
    Mr. Adler. Thank you, Mr. Chairman and Members of this 
Committee. It is certainly a pleasure to be here today, and I 
appreciate the opportunity to present my views on the Clean 
Water Restoration Act to this Committee.
    My name is Jonathan Adler. I teach environmental, 
administrative and constitutional law at Case Western Reserve 
University. Case Western is in Cleveland.
    Earlier this morning, it was mentioned that the Cuyahoga 
River no longer burns and that this is a tribute to the Clean 
Water Act. I should just note, being that I live in the 
Cleveland area now, the Cuyahoga River is not the only 
industrialized river in the United States that burned. In fact, 
rivers in the United States used to burn quite a lot in the 
late 19th and early 20th Century, and that problem was largely 
dealt with and solved well before the Clean Water Act was 
adopted. Being from Cleveland, I feel I just need to point that 
out.
    On the Clean Water Restoration Act, I just want to make 
three brief points:
    First, this bill asserts authority well beyond the 
regulatory authority that was understood and applied under the 
Clean Water Act originally.
    Second, the bill will do nothing to reduce regulatory 
uncertainty--uncertainty that, I should note, predates SWANCC 
and Rapanos--and in fact, this bill may increase regulatory 
uncertainty.
    Third, this bill will do little, if anything, to improve 
Federal environmental protection or encourage a meaningful 
Federal-State partnership.
    As written, the Clean Water Restoration Act would assert 
authority over all bodies of water and wetlands irrespective of 
any connection to navigable waters.
    Some of my colleagues on this panel may think that the 
definitions of ``all interstate and intrastate waters and their 
tributaries'' and ``all impoundments of the foregoing'' are 
self-evident and necessarily limited. I don't share that 
confidence. Without a rulemaking by the agencies implementing 
this language, it could certainly be interpreted quite 
expansively by courts.
    This would be the first time that a Federal statute would 
assert authority without any reference to the Federal 
Government's historic interest in navigability and interstate 
waters, and I think that adoption of this law could provoke 
conflict and backlash in this area not seen since the 1989 
revisions to the Federal Wetland Delineation Manual, the action 
that is often credited with sparking the rise of the property 
rights movement.
    The uncertainty in the scope of Federal jurisdiction over 
waters and wetlands did not begin with SWANCC and Rapanos. 
Specifically under Section 404, there has been uncertainty and 
conflict in litigation since the Clean Water Act was enacted. 
In fact, the Army Corps of Engineers and the EPA disagreed on 
the scope of the Clean Water Act initially, and it took 
litigation in Federal District Court to resolve that dispute. 
There has been litigation and uncertainty ever since.
    As I noted before, in the 1980s and 1990s, several 
different agencies had varying and competing delineation 
manuals as to what constituted a wetland. The General 
Accounting Office issued several reports during that period, 
noting that different agencies had different definitions of 
what constituted a wetland. Even within the Corps of Engineers, 
there could be differences about what would constitute a 
wetland or what could be subject to Federal regulation.
    In 1989, the Tabb Lakes decision invalidated the Migratory 
Bird Rule and held it couldn't be used in the Fourth Circuit. 
So, at least in the Fourth Circuit, the scope of Federal 
jurisdiction that was determined in SWANCC had already been the 
law because of that court's decision.
    The claim that this legislation asserts jurisdiction to the 
limits of constitutional authority doesn't provide certainty, 
and it doesn't answer the question of the scope of Federal 
authority. In fact, it asks the question because to say the 
Federal Government is going to regulate to the limits of its 
constitutional authority still leaves open the question of how 
broad the Federal Government's constitutional authority is. The 
Supreme Court hasn't answered that question.
    What it has said in both the SWANCC and the Rapanos 
decisions is that there is a limit to Federal regulatory 
jurisdiction and that the Clean Water Act, if read more broadly 
than the Court interpreted, could reach those limits and could 
raise constitutional difficulties.
    The Court was explicit about this in the SWANCC decision 
and, in both the Scalia and Kennedy opinions in Rapanos, the 
Court was explicit about this again: that to read the Clean 
Water Act to reach beyond those waters that have a significant 
nexus to navigable waterways is to raise difficult 
constitutional questions. To pass a bill that reaches those 
limits is to force agencies and courts to spend years figuring 
out precisely what those limits are.
    The problem of site-specific and case by case jurisdiction 
determinations which the agencies now struggle with can be 
addressed through rulemaking. In fact, we have known since the 
Lopez decision in 1995 that the Corps of Engineers' and EPA's 
regulations had federalism difficulties. Many commentators 
noted that at the time. We have known that before the SWANCC 
decision they had difficulties.
    The agencies have refused to issue new rules and refused to 
have new rulemakings that could resolve this. In the Rapanos 
decision, three justices specifically called upon the agencies 
to go through a rulemaking process so as to resolve this 
ambiguity.
    I should just lastly note that if the goal is to enhance 
the protection of waters and wetlands, what the Federal 
Government should be doing is not trying to cast as broad a net 
as possible, to rope in and assert jurisdiction over all the 
lands and waters it possibly can. Rather it should focus 
limited agency resources on those areas that the Federal 
Government, as the Federal Government, can do the most good.
    The reality is the EPA and Corps of Engineers do not have 
unlimited budgets. They do not have unlimited man hours. We 
have a choice of either telling them they can regulate many 
things without providing them with priorities, without giving 
them a guide to where they should be focusing their resources, 
or we can target their efforts and focus on those water 
resources and those resources related to waters where the 
Federal Government has a distinct interest that States and 
local governments are not capable of addressing.
    The question is not do States want to regulate more but 
whether or not they would and are capable if the Federal 
Government focused on those things where the Federal Government 
has the greatest interest. I think that is the direction that 
both the agencies and this Committee should look if it wants to 
improve the quality of environmental protection under the Clean 
Water Act.
    Thank you.
    Mr. Baird. Thank you, Professor Adler.
    Ms. Albrecht.
    Ms. Albrecht. Thank you for the opportunity to testify 
today.
    My name is Virginia Albrecht. I am a partner at Hunton and 
Williams here in Washington and really have spent about the 
last 25 years of my professional life thinking about the Clean 
Water Act, getting permits all over the Country.
    Today, I am here representing the Waters Advocacy Coalition 
which is a very large group of public and private organizations 
who have gotten together over the last 15 months in response to 
H.R. 2421 and who have shared concerns, many of which have been 
raised and I think quite well developed in the earlier phases 
of this hearing. We are very glad to be here today and also to 
hear the Chairman say that he is interested in hearing some 
comments and options for this legislation.
    I wanted to make four points today about the bill. The 
first, of course, is that it doesn't merely restore the 
previous Clean Water Act, but it does in fact expand, and I 
think that has been very well developed earlier.
    The one point I would like to make in addition is that the 
use of the term, navigable waters, as Mr. Woodley pointed out 
and I think the government was pointing out, was that use of 
that term is really an expression by Congress that there are 
some waters that are Federal and some waters that are State. It 
is a recognition that we need to draw a line.
    If you don't use the term, navigable waters, you are going 
to have to have something else in the legislation that will 
clearly be a base line for saying what is Federal and what 
isn't Federal, unless the purpose of the legislation is to say 
everything is Federal. We would think that that would be a big 
problem if the Clean Water Act were changed to eliminate the 
idea of any State waters. So that is one point.
    The second point is, just to make it clear, it is not true 
that the Clean Water Restoration Act is merely a repeat of the 
existing regulations under the Clean Water Act. We have this 
little side by side comparison up there, and you can see when 
you look. Actually, I don't know if you can read that. It is a 
little far away.
    On the left side is H.R. 2421 and on the right side are the 
Corps' and EPA's existing regulations, and there are some very, 
very significant differences here. One is the indication of 
trying to regulate all intrastate waters. The other is the 
regulation of activities and, whatever that means, it is 
ambiguous and it will invite litigation.
    When litigation comes, the language of this statute will 
matter. In a careful reading of the way this bill is written 
right now, it says they are going to regulate all intrastate 
waters. Courts will look at that and say, all means all, just 
like daily meant daily for total maximum daily loads.
    It will be very, very hard, in the face of a statute that 
regulates all intrastate waters, for the agencies to create any 
exemptions or for the courts to recognize something less than 
every water.
    As Professor Adler pointed out, that gives rise to the 
question: What are the waters? What is a water body? All those 
questions are out there.
    Then three, thinking about returning, and I wanted to make 
the point that we are talking about returning to a time when 
jurisdiction was certain and the permitting program ran in a 
smooth and functional way. As one who has been very actively 
involved in this permitting program really since the early 
eighties, I can tell you for sure that there never really has 
been a time when it was clear and concise.
    In 1993, working with another colleague who had actually 
recently retired from the Corps of Engineers, I did a year-long 
FOIA study of all 38 Corps districts and how long it took to 
get through the permit process. In 1993, which is 15 years ago, 
it took about a year for the average permit to get through the 
process. We also found in 1993 that half the permits 
applications that were submitted were withdrawn before a 
decision was made.
    I think that is still happening today, but the point is 
that in 1993, that period of time in which we did the study, 
what we found was a permitting process that was already broken. 
So there isn't a pre-SWANCC nirvana to return to is the basic 
point.
    If what is happening now is that there is some concern 
about some features not being regulated, I think the point 
would be to identify the features that are of concern and then 
think about what protections are out there and what could be 
done for those features. But we haven't really understood that 
so far, and so it has been kind of difficult to come to grips 
with that.
    We are very glad to be here today, and we would be happy to 
take questions.
    Mr. Baird. I thank our witnesses.
    The situation is we are now about six minutes from a vote, 
so we will have to go to that. There are two votes, I 
understand, following this. We would expect, hopefully, to be 
back in about 20 minutes at the earliest, more likely 25 
minutes, I would guess.
    Those on the panel might not want to run away too far, but 
the rest of you can probably count on we probably won't likely 
reconvene sooner than 20 to 25 minutes.
    It is my understand that the Chair, Chairman Oberstar, 
intends to convene the third paneling after questioning of this 
panel. The questioning of this panel could easily take a half 
hour or so, I would wager.
    So we appreciate your indulgence, as those of you who are 
trying to plan flights. For what it is worth, we go through 
this every week ourselves. It is no consolation to you, but we 
will be back in about, hopefully, 15 to 25 minutes, somewhere 
in there.
    [Recess.]
    Mr. Oberstar. [Presiding.] The Committee will resume its 
sitting, with apologies again to witnesses and participants for 
the repeated interventions on the House Floor, but that is part 
of the legislative process, and with great appreciation to Mr. 
Larsen and Mrs. Drake for sitting in while the last votes were 
underway and I was caught up with other things.
    Oh, and Mr. Baird also was here. So I greatly appreciate 
it.
    I would like to ask this panel a question I asked the 
previous panel. What would be the legal implications of leaving 
the word ``navigable'' associated with waters, in the various 
places it appears in the body of the existing Clean Water Act 
but attaching to it, fixing to it reference to pre-SWANCC and 
Rapanos practice, that is, the administrative regulations 
issued?
    Mr. Squillace. I will try that one, Mr. Chairman.
    My sense is that if you leave the phrase, navigable waters, 
in the statute, that it is an invitation for additional 
litigation over the issues.
    Justice Kennedy's concurring opinion in particular in the 
Rapanos case, I think suggests that he is not willing to read 
out the word, navigable, from the statute. If you use the word, 
navigable, or you use the phrase, navigable waters, he wants to 
give it some meaning and he wants to give it a traditional kind 
of meaning.
    As I testified earlier, it is just my sense that that is 
not what the statute is about. I think that if we are going to 
be honest about what we are trying to accomplish with the Clean 
Water Act, it is not anything to do with navigation. So my 
strong preference would be to see this phrase eliminated from 
the statute.
    Mr. Oberstar. Thank you.
    Professor Buzbee?
    Mr. Buzbee. Yes, thank you.
    I would concur. As I said earlier in my brief, very quick 
remarks, the Supreme Court has twice focused on the word, 
navigable, and given it a separate content, and that has partly 
shaped the decisions that have limited the reach of the Clean 
Water Act. I think that the Supreme Court looks at legislation 
and judicial opinions as an interactive process. If you all 
come back with a new piece of legislation that retains the 
word, navigable, I think they will read that as a well-advised 
decision to retain navigable as a limitation on jurisdiction.
    It also important what the Restoration Act does is takes 
the regulatory definition. There has long been that legislative 
history about the intent to legislate to the limit--I think the 
exact language by Representative Dingell, I won't quote--but to 
legislate broadly, and that wasn't enough already for the 
Supreme Court. So even if you try to do it now in effect but 
leave in the word, navigable, I think it will largely undercut 
the reason for this very statute.
    Mr. Oberstar. Ms. Albrecht?
    Ms. Albrecht. Yes, I think the word, navigable waters, can 
have an extremely broad meaning as we have seen over the years. 
And so, you can use the word and go back to the word, navigable 
waters, and still get very, very, very broad jurisdiction.
    Mr. Oberstar. But if we tie with it, you are not forgetting 
the second point I made.
    Ms. Albrecht. Right. Yes.
    Mr. Oberstar. Tying with it the preexisting regulation or 
regulatory scheme.
    Ms. Albrecht. Right, and I think that second question about 
preexisting regulatory scheme, I think I would have to know 
more about exactly what it was that you are talking about 
because there is some ambiguity there.
    But I think that the use of the term, navigable waters, is 
a way to express that there are some waters that are Federal 
and there are some waters that are State. It gives heft to the 
idea of cooperative federalism and that the role of the States 
in managing their land and water resources is important, and we 
are not going to override that.
    Mr. Oberstar. You think that the two separate Court 
opinions were making that distinction, drawing a distinction 
between the extent of Federal jurisdiction and the extent of 
State jurisdiction?
    Ms. Albrecht. I think that they were recognizing that there 
was a place for the States and that when Congress passed the 
Clean Water Act, that it was building on the idea that the 
States have a very, very important role, and they were trying 
to give effect to that. So the phrase, navigable waters, is an 
expression of Congress' recognition of that important role.
    I think that if you keep the phrase and you still say we 
are trying to go broadly, you would have a lot of possibility 
of getting there, what you are trying to get to.
    Mr. Oberstar. Mr. Adler?
    Mr. Adler. Well, I certainly agree that leaving the word, 
navigable, in the statute would indicate that Congress 
understood that there are some waters that are not Federal 
waters and that are State waters.
    But I think that if the legislation were to try and adopt, 
either by paraphrasing or using direct language, the pre-SWANCC 
regulations that were on the books, there would still be 
problems. One reason is that certainly the Migratory Bird Rule 
that was invalidated in SWANCC had already been invalidated in 
the Fourth Circuit some 20 years earlier, or not 20, some 10 
years earlier.
    Mr. Oberstar. Was the Court saying that the Migratory Bird 
Rule is not sufficient to establish authority for regulating 
such waters?
    Mr. Adler. I think that after the Supreme Court's Lopez 
decision in 1995, it has been recognized by many commentators 
that the regulations on the books, in particular, Section A(3) 
of the EPA-Corps regulations were problematic because they 
asserted authority over waters and wetlands in excess of the 
sort of authority discussed in Lopez.
    Mr. Oberstar. Had the term, Migratory Bird Act or Rule, 
been left out of the regulation, would the Court have come to a 
different conclusion?
    Mr. Adler. In SWANCC, I don't think so. I think in both 
SWANCC and Rapanos, the Court recognized that Federal 
regulatory jurisdiction is not unlimited and that in the 
absence of a very clear line, either from Congress or from the 
regulatory agencies, the Court would try and craft one. I think 
in both SWANCC and Rapanos, that is what the Court tried to do.
    I think what the Court signaled in both cases, consistent 
with its prior federalism decisions, is that the one answer 
that is not acceptable is a regulatory interpretation that 
asserts authority over all waters, Federal and otherwise.
    Mr. Oberstar. Can you, Ms. Albrecht, craft bright-line 
language to distinguish between Federal and State jurisdiction? 
Not here
    Ms. Albrecht. I was going to say, here today?
    Mr. Oberstar. Not right here, not right here and now. But, 
yes or no, do you think that is possible?
    Ms. Albrecht. Yes, I think it might be, but I can't do it 
today.
    Mr. Oberstar. Well, neither could I.
    Ms. Albrecht. I think that the problem with A(3) right now 
and the problem with A(3) since the Lopez decision was that 
A(3) premises Federal jurisdiction on a potential effect on 
commerce. What the Court really said was potential effect is 
kind of this limitless, boundless kind of idea.
    In fact, in Lopez, what they said was we need an actual, 
not a potential, effect. We need a substantial, not--what was 
it?
    Mr. Adler. Substantial effect.
    Ms. Albrecht. We need a substantial and actual effect.
    I think if you kind of take those kinds of ideas and you 
begin to think about what you can do under traditional 
authority over navigable waters, there are ways to do things. I 
am not quite sure, sitting here today right now, but I would 
love to have an opportunity to think about it.
    Mr. Oberstar. Give it some thought.
    Let me ask Professor Squillace and Professor Buzbee the 
same question. Can you make a distinction, if necessary?
    Mr. Squillace. I don't think one can make a distinction 
that is not simply going to lead to more litigation. I think 
the problem that we have here is that in order to adequately 
regulate the Nation's waters, we need to have the Federal 
Government in charge of the program.
    We have the States involved in adopting their own 
permitting programs. Most of them have done so under the 
Section 402 program. Most of them have opted not to do that 
under the Section 404 program, but certainly that opportunity 
is there for them. I think only in that way can we avoid what 
has become almost a nightmare of litigation and difficulty in 
terms of trying to distinguish waters that are supposedly 
jurisdictional and those that are not.
    I think we would be much better off if we just got rid of 
that distinction and had the resources of the Federal 
Government and the State Governments focusing on protecting our 
Nation's waters.
    Mr. Buzbee. I would agree with those comments.
    I just had a couple points. One is in looking at this and 
your figuring out your power, I don't agree with the commentors 
to my left who suggested that Lopez declares Section A(3) 
unconstitutional.
    I think if you look at the Supreme Court's decisions from 
Lopez through the Morrison case up to the case of Gonzalez, the 
Supreme Court has made quite clear that this Committee has 
abundant power, as does Congress, to regulate waters that are 
important to commerce, commercial activities that harm waters, 
and that really does cover almost all situations you can 
imagine, that people just tend not to destroy waters of the 
United States or pollute unless they are imbued with commerce.
    Mr. Oberstar. Very important distinctions, very important 
contributions, and I appreciate it.
    Before I go to other Members, I just want to say I would 
have loved to have the opportunity to argue this case before 
the Supreme Court from my perspective and at least cause the 
justices to read the opening paragraph of the 1972 Act.
    [Laughter.]
    Mr. Oberstar. The purpose of this Act is to establish and 
to maintain the chemical, physical and biological integrity of 
the Nation's waters. That covers everything in the Act.
    But justices don't do this. They don't go to the Committee 
report. They don't go to the report of conference because 
justices say, if Congress meant what they said here, then they 
would have written it over there in the law. I know. I have 
been through this for 40 years.
    Yet, in the Committee report, we were very clear to say 
with the term: Maintaining the term, navigable waters, we 
intend the broadest application of that term, so as to manage 
by watershed.
    Well, now we have a whole body of regulatory action and 
court cases, and we have to untangle this, as they say in 
French, pannier des crabes. We are thinking our way through it. 
The translation is basket of crabs, but we would say a can of 
worms.
    [Laughter.]
    Mr. Oberstar. Mrs. Drake.
    Mrs. Drake. Thank you, Mr. Chairman.
    I would like to thank all four of you for being here and 
listening to your testimony, I think, really encapsulated what 
we as Members of Congress have been struggling with in the 
first hearing and in the hearing today. Two of you said 
something exact opposite of the other two of you.
    I would like to challenge, Mr. Chairman, that when you are 
working on the line, if the four of you could work on some 
definitions that maybe we could agree with because we still, 
underneath it all, hear the same argument that we want 
clarification and we don't want to diminish the Clean Water 
Act, but we want to have that clarification and definitions and 
not feel like we are taking an action that is doing something 
totally different than what we thought.
    I would like to follow up on the testimony with two 
questions, two follow-up questions.
    First, Professor Adler, to follow up on the Lopez case, I 
wonder if you could tell us how that 1995 Supreme Court 
decision would impact jurisdictional decisions in the future if 
2421 were enacted.
    Mr. Adler. Well, I think it would still color the way that 
Federal courts would interpret the scope of the Federal 
Government's constitutional authority, and I think that is not 
only because of the Lopez decision itself. It is because SWANCC 
and Rapanos made that clear.
    The SWANCC decision said that it was interpreting the law 
narrowly because it doesn't want to declare an act of Congress 
unconstitutional and to not interpret the law narrowly would 
have forced the Court to look closely at whether or not 
portions of the Clean Water Act were unconstitutional.
    In the Rapanos decision, Justice Kennedy's concurrence made 
very explicit that he was adopting the approach that the SWANCC 
court adopted and made very explicit again that that approach, 
in his view, was necessary to avoid potentially troubling and 
constitutionally questionable interpretations of the law.
    So from Lopez through SWANCC and Rapanos, we see the 
Supreme Court saying consistently that the Federal Government's 
authority is very broad, it is very extensive, but it is not 
unlimited. If Federal legislation does not contain language 
that clearly limits the scope of that or the scope of 
regulatory authority to ensure that it stays within 
constitutional bounds, then the courts may have to challenge 
the constitutionality of the statute.
    What the Court did in SWANCC and Rapanos is it used the 
word ``navigable'' as a way of saying: Okay, this is an 
indication that Congress understood its power was not 
unlimited, and so we are going to use that as the way to 
understand that there is a limit on Federal power. There is a 
point at which Federal power ends and exclusive State power 
begins.
    That is a principle that I don't think we can get away 
from. It has been a principle since our Nation's founding, and 
it is a principle the Court continues to reaffirm.
    I think this statute, on the lines of the statute, either 
the statute particularly asserts authority over all intrastate 
waters without defining what that means and is asserting 
authority beyond the scope of Federal jurisdiction, in which 
case we have lots of legal problems and lots of litigation, or 
it is simply asserting the tautology, that it is asserting 
Federal authority as far as Federal authority goes without 
giving us any idea of where that line is.
    Either way, courts and agencies are going to have to figure 
that out to avoid the sorts of constitutional problems that the 
Supreme Court was trying to avoid in SWANCC and Rapanos.
    To say we are going to regulate as much as we can but not 
say how much that is leaves to other parties to answer that 
question. I think the legislation, as written, does that. So it 
doesn't avoid the constitutional problem, and it doesn't 
provide clarity because it doesn't answer the most important 
question, which is how far ultimately does the regulation go?
    Mrs. Drake. Thank you for that.
    Professor Squillace, it sounded like from your testimony 
that you believe all water should be considered Federal water. 
What we have just heard from Professor Adler, I think, you 
would disagree that we have the authority to go to that.
    Mr. Squillace. Yes. I am glad you raise that question 
because I do want to be clear about this. What we are talking 
about in this new definition is not a regulatory provision. 
That is we are not talking about the Federal Government having 
regulatory responsibility over all of these waters just because 
that is what they are.
    What we are talking about is defining the scope of those 
activities that might be subject to regulation under the other 
provisions of this statute such as 404 and 402. So, for 
example, if someone is discharging dredged or fill material 
into the waters of the United States as newly defined, that 
would be subject to Federal regulation. If someone was 
discharging a pollutant into the waters of the United States 
from a point source, that would be subject to regulation under 
Section 402 of the Act.
    So I think it is important to recognize that just because 
the waters are named in the definitional provision, in the 
provision that is in the new definition of waters of the United 
States, that does not translate into broad regulatory power 
over those provisions, absent some other regulatory standard.
    Mrs. Drake. If I could just ask Ms. Albrecht if you could 
comment on what we just heard and your understanding of that.
    Ms. Albrecht. From what I understand, I don't think I agree 
with it.
    I think if you call something a water of the United States, 
you are saying that it is subject to Federal regulation when 
certain activities happen in that place. If the outcome of this 
legislative effort were that every single water in the United 
States was a water of the United States, every single water 
would be subject to Federal permitting requirements.
    Now one of the interesting and puzzling questions in the 
bill as it is now written is, as the Clean Water Act now is, it 
regulates discharges of pollutants from point sources to 
navigable waters, the language that you came up with in 1972 
which has served us very well.
    What this present bill has is the language also about 
activities affecting. Although it is not exactly clear what is 
meant by this language about activities affecting, I think one 
plausible reading of it is that that is an attempt to regulate 
not only discharges but to regulate activities that would 
affect these waters of the United States, which would take you 
probably or possibly outside the waters of the United States. I 
mean outside the waters.
    So if you had an activity up here that was affecting a 
water of the United States, the activity up here might be 
regulated. Just, there is some ambiguity here about what is the 
meaning of that.
    I think that whenever you have new legislation, you are 
going to have to have a rulemaking. The agencies are going to 
have to figure out what it means. There will be litigation 
about what do these words mean.
    The words that are in H.R. 2421 are very absolute. You have 
the words, all intrastate waters. You have the words, to the 
fullest extent of Congress' legislative power under the entire 
Constitution, not just the Commerce Clause. Those are very 
broad words, and a court looking at that will say--I mean could 
say--could say that means that Congress intended to regulate 
every single water to the extent of whatever its authority is.
    As Professor Adler is pointing out, it sort of begs the 
question, what is that authority and where does it end?
    And so, the only way you would find it really is ultimately 
through litigation. So, in a way, what would happen is that 
Congress would end up throwing it back to the courts, which I 
don't think is what you want to do.
    I think you are trying to solve a problem here, and I 
respect that, and we want to work with you on that.
    Mrs. Drake. Thank you. I believe that we are trying to 
solve a problem, but it sounds to us that we are making the 
problem bigger.
    So, thank you, Mr. Chairman. I will yield back.
    Mr. Oberstar. Very good, very good discussion of a very 
complex subject matter. I just point out that what is intended 
is a three-part test, the point source discharge from that 
point source and the waters.
    Mr. Larsen.
    Mr. Larsen. Thank you, Mr. Chairman.
    For Mr. Squillace, I don't understand what you were saying 
regarding navigable being in the statute. It is in the statute, 
perhaps with the qualifications that the Chairman has pointed 
out, and it is in the conference report apparently from 1972.
    I haven't seen that, but since the Chairman was here then, 
working on that, I am certainly not going to doubt him nor 
would I doubt him if he said it without evidence. I would 
certainly stand behind what he had to say.
    So I don't understand your comments. To me, it makes it 
sound like either you disagree with it or that Congress made an 
error. Your conflict isn't a legal conflict. It is that you 
just don't think it ought to be in there.
    Mr. Squillace. Yes, fair point, and let me try to address 
it as best I can.
    I think when Congress chose to use the phrase, navigable 
waters, they were simply borrowing that language from the 
Rivers and Harbors Act, and I frankly don't think they really 
thought about it in the context of traditional navigable 
waters.
    I take that in part from the fact that, as the Chairman has 
already noted, Congress said quite explicitly in the conference 
report in the bill that it intended the broadest possible 
constitutional interpretation of that jurisdiction under the 
Clean Water Act. That is not navigable waters, and so that sort 
of explanation of what Congress intended didn't fit that 
phrase, navigable waters.
    As I have already mentioned, and I think it is absolutely 
clear if you look back at the legislative history, there is no 
doubt in my mind that Congress intended to go well beyond the 
Rivers and Harbors Act in a particular Section 13 of the Refuse 
Act in setting out the jurisdiction of the Clean Water Act. 
Yet, the Rivers and Harbors Act provision specifically includes 
tributaries of navigable waters as well as navigable waters.
    Mr. Larsen. Right.
    Mr. Squillace. We are in this ironic situation now where, 
because of the Rapanos case, we have a court interpretation 
that seems to be narrower than the Rivers and Harbors Act on 
which it was based. Ironically, I say because I think Congress 
clearly intended it to be broader.
    Mr. Larsen. Okay. For Professor Buzbee and Professor Adler, 
I will just pick on you two rather than have all four of you 
because it seems that perhaps you two differ maybe on some 
things, and so it might be more fun.
    Listening to Secretary Woodley from the Corps, he seemed to 
say, and I think I will mix up some metaphors here, but that 
there was a need for the agency to draw a line to which to 
tether regulator guidance. At least that seemed to be his point 
of view, from the Corps' point of view presumably.
    So, on this issue of drawing a line or having a stake in 
the ground, whatever metaphor you want, upon which the 
regulatory agencies can attach themselves in order to create 
guidance, does it not make sense to have a tether, a bright 
line, whatever terms we have been using or, if it doesn't, then 
upon what should the agencies develop their regulatory guidance 
because they are going to have to based it on something because 
they are going to have to defend it sometime?
    Mr. Buzbee. Well, I would say that perhaps most importantly 
the best way to get clarification is to take what, at this 
point, is a statute that doesn't define waters of the United 
States, take that regulatory definition as does the Restoration 
Act and put it in. That would be the biggest clarification of 
the Clean Water Act you could imagine because then the Army 
Corps and EPA would know exactly what the key provisions are 
they need to look to and it would make them statutory.
    I thought it was striking that when one of the 
representatives, Congressmen, asked Mr. Cruden, would the 
Restoration Act lead to an increase in litigation. His answer 
was it would not lead to a decrease in litigation, and so he 
was very careful with this.
    I think that this would add clarity. So I think that is the 
best way.
    As far as drawing a bright line, if you are suggesting that 
maybe there is some way without legislation you can get a 
bright line, I don't think you can.
    I think that this an area that is pervaded by blurry edges 
and judgment calls. You need agencies exercising expertise, and 
they long have. I think the idea behind the Restoration Act is 
to give that power back to regulators who are much better at 
this than our Supreme Court justices.
    Mr. Adler. As you suggested, I do disagree with my 
colleague a little bit.
    First of all, the legislation, as it is written, doesn't 
simply incorporate the existing regulations. It omits certain 
phrases. It summarizes certain phrases. I think, in some 
respects, it is potentially even broader than at least portions 
of the existing Federal regulations.
    And, as I have already noted and as many commentators have 
noted, the existing regulations have problems and have had 
problems since the Lopez decision for a variety of reasons. The 
Army Corps of Engineers and EPA have decided for the last 13 
years not to revise their regulations though, as I know Ms. 
Albrecht has pointed out on numerous occasions, they have said 
I think probably at this point 15 or 20 times, that they were 
going to issue new regulations and clarify the scope of their 
rules. They haven't done so.
    That is going to be necessary whether legislation passes or 
not because unless legislation is going to have the level of 
detail and intricacy that is possible through a notice and 
comment rulemaking, the agencies are going to still have to 
spell out: Okay, how do we know that this water is within 
Federal authority? How do we know it is something that may 
affect commerce or that has a substantial effect on commerce?
    The agencies are still going to have to spell that out.
    What I would argue is important to do if we want clarity 
now and want to get away from the very difficult and very time-
consuming, case by case, situation-specific analysis that the 
agencies are forced to go through now is this Committee--I 
don't know if you could force them but essentially encourage--
strongly encourage the agencies to do what, again, three 
justices in the Rapanos decision called upon the agencies to 
do; which is to use their expertise, use their understanding of 
ecological interconnection to spell out what it is that 
constitutes a significant nexus to navigable waterways because 
that would both take care of the constitutional problem, 
because it would tether the assertion of jurisdiction to the 
ultimate source of Federal authority in this area which is some 
connection to interstate waterways and navigability.
    It would also allow for regulatory definitions to take into 
account contemporary scientific understanding.
    As the Kennedy opinion, the Roberts opinion, the Breyer 
opinion all made very clear, the Court will be very deferential 
to that sort of decision and that sort of rulemaking and, in 
fact, courts will be more deferential to the Corps of Engineers 
and the EPA laying out what it is that establishes the 
significant nexus than they will be to ad hoc, case by case 
jurisdictional determinations made in the context of a given 
enforcement action or given case of litigation. The Robison 
case in the Eleventh Circuit bears that out.
    The courts are going to be less deferential to the 
arguments made by a given enforcement agent in a given context 
much as Justice Kennedy notes, though, they will be a lot more 
deferential to the agency saying, in most cases, these sorts of 
ecological features are indicative of a significant nexus.
    Justice Kennedy made very clear that the agencies can be 
over-inclusive. If they give a reason why in most cases a 
certain ecological feature is going to provide that significant 
nexus, as Justice Kennedy said in his concurrence, that will be 
good enough. In fact, he justified the Riverside Bayview Homes 
decision on precisely that ground.
    I think that is the only way to get not perfect certainty, 
not an absolute bright line, but at least to get a dramatic 
step towards the level of certainty that this Committee and the 
environmental community and the regulated community all want.
    Mr. Larsen. Thank you.
    Mr. Oberstar. The gentleman's time has expired.
    Mr. Ehlers.
    Mr. Ehlers. I have no questions at this time, Mr. Chairman.
    Mr. Oberstar. Mr. Salazar.
    Mr. Salazar. Thank you, Mr. Chairman.
    I have a couple of questions for Professor Squillace. In 
your testimony, you talked about how there were two court cases 
that actually declared the Colorado River not navigable, right, 
but it is my understanding that the river is still handled and 
regulated under the Clean Water Act, correct?
    So I guess what I am asking you is what difference would it 
make whether the river is not navigable or navigable? For 
example, many of my friends have actually floated down the 
river on rafts, and so I would consider it navigable to a 
certain extent.
    Could you expand on what you meant by that statement?
    Mr. Squillace. Sure. I hope I can call you as a witness to 
that effect if we get into litigation over whether the Colorado 
River is navigable. There is more discussion about that.
    I was expecting this question. I am not surprised to hear 
it. I guess what I would say is that there is a real problem 
with the way in which the current law has been construed in the 
Rapanos case in this specific regard.
    There is a case out of, I want to say, the Eleventh 
Circuit, the Robison case, that involves a decision, a 
situation just as you are talking about, where the individual 
who was subject to the Clean Water Act got an NPDES permit, 
accepted that he needed one, had it for years, and ultimately 
was caught essentially violating, deliberately violating the 
statute.
    He was indicted on 25 criminal counts for violating the 
statute. He told his employees to lie about the violations. It 
was really a parade of horribles in this case.
    His defense was, well, these weren't waters of the United 
States. Ultimately, I think the case has not been fully 
resolved, but essentially he won in the Eleventh Circuit. The 
Court sent it back to determine whether or not it meant the 
significant nexus test that Justice Kennedy set out.
    There was all along an acceptance, and there has been for 
years in many of these cases, that the Clean Water Act applies. 
But now the Rapanos case, I think, has allowed an opening, if 
you will, to challenge all of these issues.
    I share your sort of skepticism, I guess, about the 
validity of these decisions of the Colorado Supreme Court. You, 
fairly I think, point out that perhaps there is more than one 
test for navigability that might play out.
    The Court really hasn't been very helpful in ferreting that 
out for us, and I honestly think that the only way to address 
this problem is to really get beyond navigability. It has never 
been about navigability with the Clean Water Act. It has been 
about clean water.
    There are lines that we need to draw. We should talk about 
where those lines are, but I think that we ought to do that in 
a way that doesn't deal with a concept that really doesn't have 
much meaning in terms of keeping our Nation's waters clean.
    Mr. Salazar. But you do agree with me that the Colorado 
River is regulated under the Clean Water Act?
    Mr. Squillace. I would agree.
    Mr. Salazar. Whether it is navigable or not?
    Mr. Squillace. I would agree that, as for now, people 
accept that they are subject to regulation when they discharge 
pollutants from a point source into the Colorado River.
    Mr. Salazar. Just briefly, could you expand a little bit? I 
know that in your testimony, you talked about water is an 
article of commerce. I am not quite sure what you mean by that.
    Mr. Squillace. Well, the Supreme Court has made clear in an 
old case called Sporhase v. Nebraska that water is an article 
of commerce. In that case, they specifically prevented the 
State of Nebraska from denying a Colorado farmer the right to 
take water from Nebraska into Colorado. So we know from that 
Supreme Court decision, water is in fact an article of 
commerce.
    That doesn't mean--and I want to emphasize this--that the 
Congress has not been deferential toward the States in allowing 
each State to adopt its own system of regulating water, but it 
does mean at the end of the day that the Federal Government has 
a broad authority to regulate water as commerce.
    Mr. Salazar. Thank you.
    I yield back, Mr. Chairman.
    Mr. Oberstar. I thank the gentleman and the witnesses.
    Mr. Hayes? No questions.
    Mr. Hall.
    Mr. Hall. Thank you, Mr. Chairman, and thank you to our 
witnesses for your illuminating testimony.
    We have in New York, I think, a strong sentiment in favor 
of, certainly an official position in the State of New York, 
which I share, is strongly in favor of the passage of the Clean 
Water Restoration Act with some concerns on both sides about 
the possible expansion.
    I know some people who have private ponds or, in some 
cases, natural ponds or lakes on their property which have no 
inlet but do have a seasonal outlet. They are concerned about 
their lakes suddenly becoming Federal regulated, or ponds, 
something quite small, because they flow into something that 
flows into something that eventually is navigable and/or that 
eventually will fall into this definition whether the word, 
navigable, is not.
    As a sailor, I can tell you that I totally agree with Mr. 
Squillace's statement that navigability has really nothing to 
do with it. It was just a way of trying to define where the 
line was. I have sailed through some pretty polluted waters and 
some very clean waters, and the boat doesn't seem to care.
    [Laughter.]
    Mr. Hall. I will just speak about my own home on a hillside 
in Duchess County, New York, where we have two neighbors living 
up the hill from us with leach fields. When it rains heavily, 
when we have the three 50-year floods that we had in the last 
four years, some of the driveways look like they might be 
navigable.
    My next neighbor down the hill has a stream. It is a full 
year-round stream and a pond flowing behind the house. It runs 
eventually into, I think, the Great Swamp and from there into 
the Ten Mile that goes to Connecticut and eventually into Long 
Island Sound.
    So it is very hard to draw the line, and I agree that we 
need, if it is possible without using the word, navigable, to 
find the clearest possible line especially because the courts 
will change. This Court seems to be less friendly to regulation 
than some. Some of us hope that we will, in the future, have a 
court that will be more friendly to regulation, but that 
vacillation should be reined by the legislation.
    In the wake of the rulings of the Court and subsequent 
Administration guidance, it seems as if several polluters that 
were previously required to obtain permits are now trying to 
buck that requirement by arguing that the waters should never 
have been regulated in the first place. If this trend continues 
without a restoration of an original congressional intent, what 
would the impact be on the effort to ensure that our waters are 
fishable and swimmable?
    This would be to Mr. Squillace, first, please.
    Mr. Squillace. I think we don't know is the answer. At 
least I don't know the answer to what impact that is going to 
have. I think what we can say, though, is that there will be 
many discharges that will simply not be regulated, at least not 
by the Federal Government.
    Now one of the difficulties that we have here is that many 
of the States have good programs to try to regulate beyond what 
the Federal Government does, and I don't want to take away from 
what the States are able to do, but I think it is difficult 
when we don't know exactly where these lines are for us to know 
who should do what.
    I think part of the reason that the States have been so 
overwhelmingly supportive of broad Federal authority is because 
it is simply easier to have the Federal Government broadly in 
charge of most of our waters in this Country and allowing the 
States to play a role through the process that is established 
under the Clean Water Act. The States seem entirely comfortable 
with that.
    I think that if we don't do that, then I don't know what 
exact impact that is going to have on our waters. Certainly 
there is at least a significant risk that there will be adverse 
impacts on those waters.
    Mr. Hall. Professor Buzbee?
    Mr. Buzbee. I would agree with that.
    Just, there are several instances. The Robison case was 
mentioned, where criminal law violators of Section 402 have 
sought to escape the Federal Government's jurisdiction based on 
this.
    There are cases involving oil spill regulations that the 
American Petroleum has litigated and claimed that the spill 
regulations can no longer reach as far as the Federal 
Government has asserted because of these laws cases.
    Then there are several instances involving some lakes and 
ponds, and also I have heard of some of these permits out West 
where a permittee has claimed the Federal Government cannot 
reach them any longer.
    So I think your question is does the law, as it stands now, 
cut back on Federal protections? The answer is clearly yes.
    Even more important is everyone, including the witnesses, 
clearly agree the SWANCC case clearly cut back on Federal 
jurisdiction. I think every witness here would agree the SWANCC 
case cut back on Federal protections. So, in that respect, 
Rapanos is having the effect we are seeing now, and SWANCC has 
long been understood to reduce Federal protections.
    Mr. Hall. Mr. Chairman, my time is expired, but would you 
allow the other witnesses to answer the same question, please.
    Mr. Oberstar. Very good.
    Mr. Hall. Thank you.
    Mr. Adler. Yes. I would just say very briefly, certainly 
Federal regulation has been restricted some, but it is not 
clear that that necessarily means meaningful environmental 
protection has been restricted. The most expansive Federal 
regulation is not always the best way to protect the 
environment both because, in many cases, State and local 
governments are capable of intervening and they are more likely 
to intervene if the boundaries between the State and the 
Federal Government are clear.
    If the States know there is a gap to fill, they are more 
likely to fill it than if it is unclear that there is a gap to 
fill. Evidence of that, for example, is after the SWANCC case, 
quite a few States including my own Ohio introduced legislation 
to regulate isolated waters. Some passed very quickly and those 
that didn't pass stalled once the Army Corps of Engineers and 
EPA, contrary to most commentators, said: We can, through our 
guidance, kind of wave our hands and pretend as if the SWANCC 
decision didn't do anything, which is one of the things that 
ended up leading to Rapanos.
    When they reintroduced uncertainty into the scope of 
Federal jurisdiction, the States were suddenly much less 
aggressive in trying to fill that gap. It is not that States 
wouldn't like the Federal Government to regulate for them, just 
as the States wouldn't like the Federal Government to pay for 
their roads or pay for other things.
    The question is will States, if they recognize there is a 
gap and the definition of that gap is clear, act to fill that 
gap and to protect those waters that are important to States 
and local communities? I think they will do so a lot more than 
we have given them credit for and are more likely to do so 
where we can clarify the nature of the boundary between the 
Federal and State governments.
    Ms. Albrecht. I rest.
    Mr. Hall. Thank you, Mr. Chairman.
    Mr. Oberstar. Thank you very much.
    I just point out that there are at least 25 States that 
have legislation establishing no more restrictive requirement 
or stringent requirements than those that exist in Federal law. 
So there could be some very significant gaps.
    I hold this panel dismissed with a great appreciation for 
your comments and for the striking divergence in views.
    Ms. Albrecht, Professor Adler, I asked for your comments 
and your legislative suggestions on prior converted cropland, 
navigable waters and the accompanying regulatory framework and 
other items, and I hope you can do that within the next 30 
days.
    Ms. Albrecht. Okay.
    Mr. Adler. Sure.
    Ms. Albrecht. We will work on it.
    Mr. Oberstar. Thank you very much.
    Mr. Squillace. Thank you, Mr. Chairman.
    Mr. Oberstar. On our next panel, we will make one 
adaptation for a witness who has a flight problem. That is if 
he doesn't get out of here soon, he will miss his flight.
    Chris Petersen, President of the Iowa Farmers Union; Brett 
Hulsey, Dane County Supervisor, Madison, Wisconsin; Kristin 
Jacobs, Broward County Commissioner, Fort Lauderdale, Florida; 
Robert Cope, Commissioner, Lemhi County, Salmon, Idaho speaking 
for the National Association Counties; and the Honorable Don 
Munks, Skagit County Commissioner for the State of Washington, 
Mount Vernon.

     TESTIMONY OF THE HONORABLE BRETT HULSEY, DANE COUNTY 
  SUPERVISOR, DISTRICT 4, MADISON, WISCONSIN; CHRIS PETERSEN, 
 PRESIDENT, IOWA FARMERS UNION; THE HONORABLE KRISTIN JACOBS, 
   BROWARD COUNTY COMMISSIONER, DISTRICT 2, FORT LAUDERDALE, 
FLORIDA; THE HONORABLE ROBERT COPE, COMMISSIONER, LEMHI COUNTY, 
    SALMON, IDAHO ON BEHALF OF THE NATIONAL ASSOCIATION OF 
     COUNTIES; AND THE HONORABLE DON MUNKS, SKAGIT COUNTY 
       COMMISSIONER, DISTRICT 1, MOUNT VERNON, WASHINGTON

    Mr. Hulsey. Thank you, Mr. Chairman.
    It is a pleasure to be here today. I decided to give a 
little slideshow to brighten things up.
    I am Brett Hulsey, Dane County Supervisor and, yes, the 
PowerPoints work. So, Dane County encompasses Madison, 
Wisconsin.
    [Slide shown.]
    Mr. Hulsey. Dane County, Wisconsin encompasses Madison, 
Wisconsin, the University of Wisconsin and the largest 
agricultural county in Wisconsin. We are the 89th largest 
agricultural county in the Nation and one of the top tourism 
counties is Dane County. So we balance many of these issues on 
a daily basis.
    [Slide shown.]
    Mr. Hulsey. In addition to this, we have many challenges as 
well. Closed beaches, the one on the left is a closed beach in 
my district. The discharge on the right is coming from an 
upstream area. We are a headwaters area ourselves.
    I have been on the county board for 10 years. I am the 
Chair of the Lakes and Watershed Commission, and I am also 
Chair of our Personal Finance Committee. So I try to combine 
your zeal with Congressman Obey's finances at the county level. 
Sometimes, I succeed.
    [Slide shown.]
    Mr. Hulsey. So, basically, the issue here is that recent 
Supreme Court decisions have created chaos, as you have 
mentioned before. About 59 percent of our surface streams are 
no longer or at risk of losing protection. That is drinking 
water to 100 million Americans, roughly 1 in every 3 Americans. 
Twenty million acres of wetlands are at risk.
    We believe and I believe that your solution is a reasonable 
step forward to solving the chaos.
    So, I first got involved in Clean Water Act issues, 
actually safe drinking water issues, in 1993 when the crypto 
outbreak in Milwaukee killed more than 100 people and sickened 
400,000. It was the largest waterborne disease outbreak in 
modern U.S. history.
    We have 400 individual permits, getting to your comment, 
Mr. Salazar, that dump to, that emit to ephemeral streams and 
headwater streams in Wisconsin.
    [Slide shown.]
    Mr. Hulsey. My concern is that we would allow 
slaughterhouses, feed lots, if this chaos continues, to emit 
directly to drinking water sources in our State and that we 
could have a recurrence of the crypto outbreak.
    [Slide shown.]
    Mr. Hulsey. As we see, and this slide is from a recent 
Seattle Times article, we are seeing drinking water supply 
issues. This is from Congressman Larsen's district north of 
Seattle, a Seattle Times story: Worry About Drinking Water 
Supplies.
    [Slide shown.]
    Mr. Hulsey. And this is what counties face today. The 
headline on the left and the picture to the left is from my 
county. The picture on the right is an example of where the 
road builder and construction engineers should have better 
considered wetlands in creating this reflecting pond below that 
diamond eight interchange.
    Floods are not new, however. We have seen this since the 
Bible. Unfortunately, as Jesus said, you build your house on 
your rock and it will withstand the flood.
    [Slide shown.]
    Mr. Hulsey. The main problem is we have seen a huge growth 
in flood insurance payments in the billions of dollars.
    [Slide shown.]
    Mr. Hulsey. There was a mention about real estate. Wetlands 
do not usually increase the value of real estate. Here is an 
example where they make it very difficult to sell in our 
county.
    We have had about $50 million of flood damage in our county 
since 1993.
    [Slide shown.]
    Mr. Hulsey. As you can see, there is a very steady pattern 
of flood damages across the Country. In your own district, it 
is Aitken County. In Congressman Larsen's district, you are 
actually in one of the highest flood disaster declaration areas 
in the Nation.
    [Slide shown.]
    Mr. Hulsey. It tends to be about a third of the 
declarations are from floods but about two-thirds of the 
damages from floods, and it varies a little bit by region.
    [Slide shown.]
    Mr. Hulsey. But we see a huge increase in flood damage due 
to habitat destruction, probably climate change and also flood 
plain development.
    [Slide shown.]
    Mr. Hulsey. This is a 1993 flood. Again, you see highway 
structures under water.
    [Slide shown.]
    Mr. Hulsey. This is the before and after for St. Charles 
County right north of St. Louis, and there was a huge amount of 
flooding there. Congressman Carnahan's father was a great 
champion in moving the people out of the flood plain.
    [Slide shown.]
    Mr. Hulsey. So, basically, what I am saying in my remaining 
few seconds is that we need the Clean Water Restoration Act for 
two reasons. One is to protect people from deadly pathogens in 
their drinking water. Two is to protect people from flooding. 
Either you care about these things or you don't, and your 
solution is the best solution to the problem I have seen.
    We hope others will come forward, but if you care about 
these things, you have to do something about it because the 
current court-created chaos cannot continue.
    Thank you, Mr. Chairman.
    Mr. Oberstar. Thank you very much for your presentation.
    We will go now to Mr. Petersen.
    Mr. Petersen. Thank you, Chairman Oberstar and Ranking 
Member Mica and Members of the Committee. We appreciate the 
opportunity to testify today.
    My name is Chris Petersen, and I am the President of the 
Iowa Farmers Union. I have been involved in production 
agriculture for 35 years. Presently, my wife and I maintain a 
30-head sustainable Berkshire sow herd on our farm near Clear 
Lake, Iowa. That is north central Iowa.
    In 2001, I started my own business doing consulting work 
with a network of independent family farmers, grassroots 
environmental activists and consumers consulting on 
concentrated animal feeding operations, family farm issues, 
food quality and safety issues and all other rural issues.
    Iowa Farmers Union policy states that our environment is 
best protected by family farmers who have a long-term interest 
in the productivity of the land and the healthy, safe and pure 
supply of our water. In constructing national policy to address 
the issues associated with water quality, we support the 
following actions:
    Efforts in research that addresses the issue of nonpoint 
source pollution;
    Concentrated animal feeding operations being required to 
post appropriate bonds to cover the cost of cleaning up any 
contamination of surface and groundwater resources. When 
posting these bonds, CAFOs should also be required to develop 
and submit waste storage closure plans;
    A national policy that discourages polluters from shopping 
among the States for the lowest environmental standards and 
encourages States and localities to establish standards beyond 
the Federal minimums;
    Cost-sharing provisions targeted to small and medium-sized 
farms;
    Responsibility for submitting a waste management plan and 
complying with waste management provisions being shared by the 
owner of the livestock and the operator of the facility;
    And, I guess taking that a little further, responsibility 
and liability for environmental and pollution problems being 
shared between the vertical integrators and the contract 
farmers on all livestock feeding operations.
    By changing the word of the Act to simply waters, a 
national set of guidelines can be established for eligible 
waterways, creating uniformity in the jurisdiction process and 
expediting the subsequent permitting process. Additional time 
devoted to determining jurisdiction comes at a great cost to 
both farmers and taxpayers. Like many aspects of agricultural 
policy, a clear and concise method of determining jurisdiction 
and permitting encourages farmers and ranchers to be proactive 
stewards of water resources.
    Restoring clean water practices to the methods used before 
2001 would not cause unwarranted hardships on farmers nor would 
it deliver them into a state of constant fear of EPA or the 
Corps. Above all, agricultural producers are eager to highlight 
the unique set of circumstances that warrant attention when 
formulating clean water laws.
    In this legislation, the current regulatory exemptions 
related to farming, forestry, ranching and infrastructure 
maintenance that have been in place since 1977 could not be 
overruled. Activities such as plowing, seeding, cultivating and 
harvesting along with the construction and maintenance of farm 
or stock ponds, irrigation ditches and farm or forest roads 
have been exempted from the permitting requirements and would 
remain so under your proposed legislation.
    I do encourage you to include the exhaustive list of 
agricultural-related exemptions in future reauthorizations of 
the Act as cited by you, Chairman, in your opening statement.
    Water pollution damage is uneven in scope and severity 
because it occurs when farming is done at the non-farmer owned 
industrialized, commercialized levels. The ultimate challenges 
facing lawmakers is how to account for the differences between 
family farming operations and non-farmer owned industrialized, 
commercialized levels of agriculture.
    Family-sized producers should not be penalized either 
through statute or financial burdens for the irresponsible 
actions of massive corporate agriculture outfits who conduct 
business with little regard for the environmental 
sustainability.
    I am just about done here.
    What will help farmers and ranchers in the future is a less 
cumbersome and more expedient process by which agriculture, EPA 
and the Corps can come to a consensus of what problems do or do 
not need to be addressed and the most common sense by which 
challenges can be resolved and solved. We support your 
legislation, and it needs to be passed to address the chaos of 
the last few years.
    I just want to make it very clear that I am a family 
farmer. I am very environmentally conscious, and a clean 
environment and clean water are very essential to every single 
citizen of the United States.
    Being a good steward of the land and clean water is not 
elitist or a process of the wealthy. It is something that needs 
to happen in this Country.
    Thank you very much.
    I am sorry, but I have a plane to catch. If there are any 
questions, please address it through our National Farmers Union 
office, and I will be more than happy to answer your questions.
    Mr. Oberstar. Are you flying Northwest?
    Mr. Petersen. United, actually.
    Mr. Oberstar. Oh, well, you got a little better shot at it 
then, at making that flight then, but you really need to leave 
right now if you have a 7:45.
    [Laughter.]
    Mr. Oberstar. So, if we include the ag-related exemptions 
with the savings clause and include reference to prior 
converted farmland as we have discussed earlier today, which 
you heard, that would make the bill more acceptable than you 
already consider it to be?
    Mr. Petersen. Yes, exactly. Farmers, basically, don't have 
any problem, at least I don't and the farmers I run don't--
there are tens of thousands of us--with doing the right things 
for better stewardship and clean water.
    Mr. Oberstar. Thank you very, very much for your 
contribution.
    Mr. Petersen. Thank you.
    Mr. Oberstar. Ms. Jacobs.
    Ms. Jacobs. I guess it is almost good evening at this 
point, but thank you, Mr. Chair and Members of the Committee, 
for giving us and me the particular honor to be able to talk to 
you today about the Clean Water Restoration Act, and I would 
ask that my comments today be recorded as a part of the record.
    I have been a Broward County Commissioner for 10 years, 
representing the Nation's 14th largest county and the State of 
Florida's second largest county by population. I am also a 
member of the South Florida Water Management District's Water 
Advisory Commission which comments on policies for the 16 
counties in middle to lower part of the State of Florida, from 
the Kissimmee chain of lakes all the way to Key West.
    Broward County is bordered on the east by the Atlantic 
Ocean and on the west by the Everglades, extending, as I like 
to say, from the seagrass to the sawgrass. In fact, two-thirds 
of our county is Everglades protected land. These natural 
environments are connected by a network of 1,800 linear miles 
of canals throughout our county, and the stewardship of our 
water resources and protection of them from flooding and 
drought are important responsibilities not only to Broward 
County but to governments across the Country.
    Broward County's environmental quality is an integral part 
of our economic health with approximately 10 million visitors--
yes, I said 10 million--to our county per year, who enjoy our 
natural resources as well as our local businesses.
    Having served as Broward County's mayor during Hurricanes 
Katrina and Wilma, which was the worst storm to hit Broward 
County in 55 years, I saw firsthand how the protection of our 
environmental efforts supports the flood protection 
infrastructure that meets of our citizens to be safe in their 
homes and their businesses.
    Without protection, careful monitoring and regulation, 
pollutants in surface waters and stormwater could easily 
threaten the nearshore Everglades habitats. Our county has 
benefitted greatly from those protections afforded us by the 
Clean Water Act over the last several decades.
    The Clean Water Restoration Act should be supported by this 
Committee and by Congress. The bill is consistent with the 
views of many prior Federal court decisions which held that 
Congress intended to give the terms, navigable waters and 
waters of the United States, the broadest permissible 
constitutional interpretation. The bill clarifies Congress' 
intent by restoring the agency's definition, providing a plain 
meaning of waters of the United States, and resulting in more 
traditional consistent regulation. Simply put, the bill 
restores the scope of Federal jurisdiction, no more and no 
less.
    What the bill does not do is expand Federal jurisdiction or 
preempt State or local jurisdiction as to water or to land use. 
The savings clause preserves existing exemptions from Federal 
regulation. Public infrastructure, maintenance and water supply 
projects would not be treated differently than before SWANCC 
and Rapanos.
    The bill would continue to allow for stricter local 
standards, which Broward County has higher standards than that 
which is set by the State of Florida, and does not propose to 
change the current authority of States to manage permitting, 
grant and research programs.
    However long it took to get a Corps permit in 1993, one 
thing is sure, that post-Rapanos it is going to be even more 
difficult to get those permits and longer if we don't change 
the situation as it currently stands.
    The bill has been criticized as introducing regulation of 
swales and ditches. The role of the Federal Government in these 
areas is not changed by passage of this bill. Swales are 
prevalent throughout Broward County and are part of a water 
quality treatment system, and treatment is provided prior to 
discharge in canals or water bodies.
    Ditches are already defined as a point source in Subsection 
502.14 of the Act. The Clean Water Act allowed discharges of 
pollutants from such sources to waters of the U.S. when they 
comply with Section 402's NPDES program. The bill will simply 
not expand or even disturb regulation of ditches under the Act.
    Concerns about expanded regulation of public 
infrastructure, maintenance and water supply projects are also 
misplaced. When such projects affect isolated wetlands or very 
intermittently existing waters, it can accommodate reasonable 
Federal regulation given the 5-year and 10-year and sometimes 
longer timeframes that are involved in capital funding, land 
use acquisition and zoning decisions.
    I would point out to you that Broward County has one of the 
unique roles throughout our State that we have countywide land 
use authority, and we have not had it challenge by the Clean 
Water Act so far and don't expect it to be changed as passage 
of this bill, hopefully, occurs. The lower risk of challenges 
and litigation and the restoration of a uniform minimum level 
of protection of our waters nationwide is what would result 
from this bill's passage.
    Mr. Chair, most of Broward County's congressional 
representatives are among the 175 co-sponsors of your bill, and 
I am proud that they are.
    As for my opposing colleagues at NACO, I have no doubt that 
they are very sincere in their concerns that this legislation 
might preempt their local authority and make permitting 
requirements even more onerous. Broward County respectfully 
disagrees.
    Let me assure the Members of this Committee, the Broward 
County Board of County Commissioners supports strong water 
quality protections and legislation that retains the original 
intent of the Clean Water Act to restore and maintain the 
integrity and quality of our Nation's waters, and we have 
ensconced that in a resolution that I would provide for anyone 
that would like to see a copy.
    Restoring the Clean Water Act protections to all of our 
water bodies is crucial as counties across the Nation are 
dealing with massive flooding, lack of drinking water and new 
threats of unregulated industrial pollution to our streams and 
drinking water sources.
    As a brand new grandmother, I think we can safely say that 
this bill has some steps to go to reach clarification. I urge 
you today to go through those steps to try to find that bridge 
that links some of the issues for language which you clearly, 
very well laid out for us this morning, Mr. Chair, and I would 
ask that ultimately this bill pass this Congress for the good 
of this Nation, for the good of our county, for the good of my 
grandchild and those still to come.
    I thank you so much for the privilege of offering my 
testimony to you today.
    Mr. Oberstar. Thank you very much. Grandmothers are coming 
awfully young these days.
    [Laughter.]
    Mr. Oberstar. You must be very pleased with the legislation 
that Congress enacted over the President's veto to restore the 
Everglades in the Water Resources Development Act.
    Ms. Jacobs. Oh, yes, sir. Yes, sir.
    Mr. Oberstar. Over $2 billion to that initiative.
    Ms. Jacobs. It is one of the most important things to 
happen in the State of Florida.
    Mr. Oberstar. Commissioner Cope.
    Mr. Cope. Thank you, Mr. Chairman.
    My name is Cope, as you know. I am here representing the 
National Association of Counties, better known as NACO. I am 
privileged to serve as the Chairman of their Environment, 
Energy and Land Use Committee.
    As you may well know, NACO officially opposes the Clean 
Water Restoration Act. That was done through the process of a 
resolution to that effect was approved by four committees, 
steering committees of the organization, three of them 
unanimously.
    That doesn't mean that every county--you have heard Dane 
county and Broward County--oppose it. That is not unusual. I 
notice from the votes that you had taken today, it is pretty 
rare that you get unanimity on the floor of the House. I think 
that probably happens also in most places. But the vast 
majority of counties have a basic problem with the type of 
philosophy that this Act has.
    Make no mistake about it, the issue is not clean water. 
When we talk about the protections and all the pollutant 
problems we have, this issue is jurisdiction rather than 
quality.
    All of us fully support clean water. It is essential in my 
area of the West where we get 11 inches of moisture a year and 
we don't have enough water to go around. Both the quantity and 
the quality are vital to our very survival, but jurisdiction 
does not necessarily bring with it, protection.
    In fact, most of the big pollution we have in my neck of 
the woods comes from the sludge that runs off the ground after 
the forest fires that is due to the great protection that we 
managed to put in place on our public lands. We have discovered 
the hard way that Federal jurisdiction doesn't necessarily work 
out best for the environment and for its people.
    We do have some suggestions we would like to make. Overall, 
we do feel that the word, navigable, needs to stay in place, 
but it needs to be defined.
    There is a wide range of definitions of navigability across 
this Country. In Idaho, the definition of a navigable stream is 
any stream that will float a six inch log in high water, and it 
doesn't state how long the log has to be or how far it has to 
float. I think there is some room for improvement on that 
definition, myself, and I think we could have one that would 
establish what we are actually talking about.
    There are partnerships that need to be strengthened and 
restored among Federal, State and local governments. I think 
this is absolutely vital, and I very much fear that if we 
decide that all the waters come under Federal jurisdiction, we 
have the potential to lose some of those partnerships.
    I am absolutely convinced that we lose flexibility. We have 
never felt comfortable with spandex regulations nationwide. One 
size doesn't fit all. I realize that things happen. My 
colleague here from Iowa talked about the things they have, but 
Iowa and Idaho are different, and the standards that will work 
very well along the Missouri and Mississippi valleys on the two 
sides of the State fail miserably in the Salmon and the Snake.
    The same types of background for some types of heavy metals 
you may find on the coast of Lake Erie in Ohio won't function 
on the Pacific Coast of Oregon. Just for one thing, the arsenic 
levels are higher for the background.
    I do believe fully that some allowances have to be made for 
geographical differences. If we try to put a blanket on the 
entire Country, we are going to find places too loose and 
places it is too tight. I see no avoiding that.
    We fully believe that that government governs best which is 
closest to the people. I think, from my experience, county 
government tends to do that well.
    I heard today a broad list of exceptions to the Act that 
have been in place and stayed in place, but somehow on the 
ground they don't seem to happen that way all the time. We had 
Secretary Woodley who sat here--what is his name? I can't 
remember now--and told us all the things that the Corps didn't 
do, but I think he is missing talking to some of these people 
because it doesn't seem to be uniformly applied.
    A classic example we had just recently in my county, again 
the forest service wanted to do a little campground improvement 
at Meadow Lake. It is up about 9,000 feet. It drains into 
nothing. It is a glacial basin. The Corps decided they had to 
be permitted.
    The forest service said: Why? It doesn't connect to 
anything? It is just a basin there.
    They said, well, don't you have some people go up and 
recreate.
    Well, yes, there are campers that come up.
    Do they come from out of State?
    Well, there are some that come out of Montana.
    Well, that is interstate commerce, so it is now Federal 
jurisdiction.
    These are real case scenarios that are happening.
    We also feel one of our prime projects has been the Upper 
Salmon Basin Model Watershed Project. We have done a great deal 
of work in Central Idaho for riparian enclosures, building up 
fences. We do culvert replacement, stream reconnection. It is 
funded mainly through Bonneville Power Administration monies. 
Those monies cannot be committed more than 24 months in 
advance.
    We are barely making the permit applications now. I think 
if we get any more load onto the Corps and extend that time at 
all, we have deleterious environmental effects because we won't 
be able to perform the actions that we have out there.
    I say again, the issue here is not clean water. It is not 
the environment. It is a question of jurisdiction and in doing 
what is most effective and right.
    When we have situations with the forest service, we have 
two Federal agencies who are having to develop parallel 
programs in concert with each other, both of them at taxpayer 
expense. When we also have the Bonneville Power situation with 
the model watershed, we are failing to provide some of the 
really good environmental effects that we can have just because 
our time delays become too great.
    I really believe that man is capable of developing his own 
environment and modifying his own environment for the better 
and that not all activities men do are necessarily bad. We can 
do beneficial things.
    I would like and I believe NACO would like to see the 
flexibility for local government to utilize the expertise that 
we have on the ground and do that best efficiently, and I 
believe the Act, in the form it currently has, doesn't take 
that into consideration.
    Thank you.
    Mr. Oberstar. Thank you very much, Commissioner Cope. We 
appreciate your statement.
    Commissioner Munks from Skagit County.
    Mr. Munks. Skagit County, you got it right. That is good.
    Thank you, Chairman Oberstar and distinguished Members of 
this Committee.
    It is an honor and privilege to testify before you today on 
some significant concerns that my constituents have in regard 
to the Clean Water Restoration Act of 2007. I would like to 
thank Congressman Larsen for graciously working with the people 
of Skagit County to provide us with this opportunity.
    I hail from one of the richest agricultural valleys in the 
Western Hemisphere, nestled between the alpine mountains of the 
North Cascades and the crystal clear seas of Puget Sound. The 
Skagit River is the longest river draining into Puget Sound and 
is home to all five species of Pacific Salmon as well as 
steelhead and bull trout. We have four other rivers and 
hundreds of tributaries.
    As a fourth generation Skagit County farmer, my great 
grandfather settled on the pristine banks of Fidalgo Bay in the 
1950s, where my family resides to this day. We have great 
respect for the land and the waters of our beautiful county.
    Although we were experiencing significant pressures of 
growth from the north to Vancouver, BC, and from the south to 
Seattle, Washington, the strength of our agriculturally-based 
economy has motivated our citizens to be good stewards of that 
land. We harvest the finest red potatoes in the world, produce 
hundreds of acres of stunning world famous tulips, provide a 
significant portion of cabbage and other kohlrabi crop seeds 
for the entire world as well as being on the cutting edge of 
production for blueberries, strawberries and raspberries.
    Other Puget Sound counties have sat back and watched their 
farmland disappear. Working with farm families and advocacy 
groups, we have worked hard to keep agriculture viable. We have 
protected more than 5,000 of our 90,000 acres of fertile 
farmland from future development with our Farmland Legacy 
Program which allows us to purchase conservation easements, 
protecting our open spaces and productive farmlands for 
eternity. County taxpayers voted to impose this tax on 
themselves. We allow only one farm home every 40 acres of ag 
land.
    Our bays and estuaries support more than 93 percent of the 
overwintering waterfowl in western Washington including the 
Western High Arctic goose, Trumpeter swans, black brant plus 
many other species.
    In 1995, the county commissioners created the Clean Water 
Shellfish Protection District to clean up our saltwater bays 
for shellfish harvests.
    In 2004, we instructed our health department to work with 
rural property owners to form community councils in problem 
areas and, with our expertise in State grants and Federal 
grants, replaced the faulty septic systems.
    County departments consider salmon recovery in all of our 
actions and pursue grant funding for salmon enhancements.
    Today, we tax our citizens to monitor water quality and 
habitat, administrative lake districts, enforce water quality 
compliance and operate onsite sewage programs. We work hand in 
hand with other organizations such as conservation districts, 
fisheries enhancements, watershed councils and local tribes to 
ensure our water is clean.
    So, with that being said, why am I, Don Munks from Skagit 
County, here today to testify against Clean Water Restoration 
Act of 2007?
    It is obvious that fellow commissioners and I, along with 
thousands of community members, are strong advocates of clean 
water and are willing to tax ourselves to back up our values.
    Our main concern is that the bill proposes the word, 
navigable, to be eliminated from the definition of waters of 
the U.S. in the Clean Water Act. This would effectively put all 
bodies of water or perceived bodies of water under Federal 
jurisdiction, even those waters currently under State 
authority.
    Let me liken this crisis to a national emergency due to a 
natural disaster. History has shown that those communities that 
wait for Federal intervention suffer devastating loss. While 
many pointed their finger at FEMA in the Katrina disaster, the 
real disaster was in the inability of the first responders at 
the local level to react.
    In regard to clean water, we are the first and best 
responders and have been very productive. By removing our 
ability to be first responders and saddling us with a 
cumbersome permitting process, we would be faced with a huge 
impact that may require a Clean Water Act permit for routine 
tasks. Requiring Clean Water Act permit for gutters, driveways, 
driveway cultures, agricultural ditches, farm ponds and 
roadside ditches would dramatically increase the time required 
to process permits and create a backlog of projects for the 
Corps to add to an already significant backlog.
    Annually, hundreds of small projects currently being 
completed by county forces and moderate permit requirements 
would require a permit from the Corps. In addition, private 
property owners currently able to construct would be required 
to obtain a Corps permit. Not only does this greatly increase 
the permit applications required, but it adds additional 
burdens to the Corps to process the thousands of additional 
permits they will receive every year.
    Many of these projects have short allowed construction 
windows due to salmon spawning. The increased length of time to 
obtain permits will often result in the project being deferred 
until the next year to enable construction during the fish 
window. During the delay, the need for the project that 
promotes clean water continues or increases. We will miss grant 
deadlines and be burdened with additional staff time.
    The intent of your bill is fine. We all want clean water. 
But by dramatically expanding the jurisdiction of the Corps of 
Engineers, you will stymie the efforts of Skagit County, our 
dike and drainage districts and our advocacy and resources 
groups to continue work toward a common goal.
    We ask you for the opportunity to continue to be first 
responders for clean water by not saddling us with additional 
bureaucracy. As we help you on the ground make our water 
cleaner and healthier, please help us with legislation that is 
clear and simplifies our permitting process.
    Thank you.
    Mr. Oberstar. Thank you very much for your testimony and 
for the concerns you have raised, and let me begin there.
    You said the legislation would cost additional money and 
create delays and complexity. In fact, without action, counties 
all over the Country and especially in my own congressional 
district have said it is costing them millions of dollars and 
additional personnel they have to hire, delays, paperwork to 
comply with this confusing complexity of post-Rapanos and 
SWANCC decisions and the regulatory guidance issued by both the 
Corps and the EPA. They and many others have appealed for 
clarity.
    So the bill I introduced was to establish clarity.
    As you and Commissioner Cope are concerned, if removing the 
term, navigable, from the Clean Water Act would create 
additional concerns or confusion for you, if we leave it in and 
attach to it the regulatory regime prior to the two Supreme 
Court decisions, do you have a problem with that?
    Mr. Cope. My question, Mr. Chairman, would be which 
regulatory regime?
    We have seen, over the 20 years leading up to this Rapanos 
decision a change, in your jurisdiction authority. I think it 
wasn't so much that the Corps misread the original intent as 
they just gradually expanded their authority a little farther, 
a little farther until finally it reached the point that 
somebody pushed back, and it was the Solid Waste Authority of 
Northern Cook County.
    Mr. Oberstar. Well, in this Committee in 1977, we addressed 
the concerns arising out of the Corps' vast expansion, which we 
thought was an overreach in implementing 404. In 1977, right 
here in this Committee room, we limited the scope and directed 
the Corps, as they have done from 1977 through 2001, to follow 
a much more specific regulatory regime.
    So I have referenced it to the previous panel, the EPA and 
Corps panel earlier today. Waters of the United States and 
waters of the U.S. means--these are words drawn from the Corps 
regulations prior to the Rapanos and SWANCC decisions--``All 
waters currently used or were used in the past or may be 
susceptible to use in interstate or foreign commerce, including 
waters subject to the ebb and flow of the tide; all interstate 
waters including interstate wetlands; all waters such as 
intrastate lakes, rivers, streams, including intermittent 
streams.''
    These are words from the regulatory scheme of the Corps of 
Engineers and of EPA. If we include, by reference, those 
provisions that were intended to be covered in the savings 
clause that I included in the introduced bill, Mr. Grumbles and 
Secretary Woodley said they thought that would be acceptable.
    So the provisions of the bill that I introduced say nothing 
in the Act will be construed as affecting the Secretary of the 
Army or the Administrator of EPA under the following 
provisions, and there are eight listed, eight categories.
    So, all right, if eliminating the term, navigable, causes 
people a lot of heartburn and regulatory uncertainty, let's put 
it back in but retain the regulatory certainty of the existence 
of those regulations prior to the Supreme Court decisions.
    Mr. Cope. I think if that were defined to where we can 
really have a good boundary on where those limits sit, I think 
we can deal with that.
    Mr. Oberstar. They are going to come back to the Committee 
and be specific about that.
    Mr. Cope. The key to the problem we have had with that 
particular language is we see what it includes, but the 
boundaries are so wide, we are not real sure that there is 
anything exempted according to that language.
    So we would like to see some definitions. As I say, 
navigability I think could be better defined. I think we can 
make it work.
    Mr. Oberstar. But on the other hand, your State is one of 
those 25 States that has prohibited itself from establishing 
regulatory regime more stringent than that of the Federal 
Government.
    Mr. Cope. That is true, but we also have a very effective 
Department of Environmental Quality that works very closely 
with the health districts and with the counties, and it works 
rather well.
    Mr. Oberstar. You cited that in your testimony, but I just 
want to point that out.
    Mr. Munks. Mr. Chairman?
    Mr. Oberstar. Yes.
    Mr. Munks. You had asked the question. Could I answer it 
too, please?
    Mr. Oberstar. Sure.
    Mr. Munks. I don't disagree with what you are wanting to 
do, and I applaud you for wanting to put the word, navigable, 
back in.
    I think that what Mr. Cope said was very accurate. We want 
clarification of jurisdiction. We have spent a number of years 
defining what the jurisdiction is between the Federal 
Government and their agencies, the State Government and their 
agencies, and local government, whether it is counties or 
cities and how we all act together.
    The State of Washington has been very progressive in 
everything they do. We have a tremendous amount of regulation, 
and we have a requirement that sets a minimum but allows us to 
do anything above that that we want to put in place. So we 
have, over the years, developed what it is we are going to do, 
how it is we are going to do it to protect these waterways that 
we have.
    It is very difficult to protect them especially with the 
interaction, as Supervisor Hulsey said. We have a lot of 
flooding, maybe the worst flooding areas as a whole in the 
Country, but we have mountain to sea.
    It is all a watershed, and we have a lot of area that is 
regulated by the Federal Government. It is off limits to do 
anything to avoid the flooding. And so, as we deal with that 
flooding and the aftermath of the water after that flooding, we 
are continually cleaning up.
    We have tremendous growth that we are trying to take care 
of, more in what I call the metropolis area. That is to the 
south. That is in Congressman Larsen's area.
    But we have been imposing upon ourselves a lot of 
regulation. So putting navigable back in, as you said you were 
open to do, clarifying some of the jurisdictional issues and 
the definitions of what it is we are going to get accomplished.
    We work very well with the Corps, but the Corps in my 
district is different with definition than the Corps in 
Commissioner Cope's district and is different than almost every 
district in the United States. So we have kind of morphed into 
this interaction of how we permit process and how we get things 
done.
    Mr. Oberstar. Thank you for that expansion.
    As I say, I am open to discussion of the subject. I want to 
get us back to pre-SWANCC and Rapanos, pre-Kennedy test, pre-
Scalia test, and to eliminate, confusion to the Corps, the EPA 
and to local interests and State interests.
    I want to restore the purpose of the Clean Water Act which 
I understand very clearly. However, we get there, I want to do 
that. So we are having this discussion.
    Mrs. Drake.
    Mrs. Drake. Thank you, Mr. Chairman, and again thank you 
all for being here.
    I think I want to start with Mr. Cope and Mr. Munks. I did 
hear you say, and I appreciate your saying it, that you think 
we need much better clarification and definition in the bill 
that is being proposed. But other than defining better, 
navigable waters, with the existing Clean Water Act, do you 
think it needs to be better defined?
    I know you have said you worked with it over the years and 
things have changed. Can you tell us, with what you have been 
working with now, since these two Supreme Court hearings, do we 
need a better definition of that or not?
    Mr. Cope. I am going to defer most of this to Mr. Munks 
because my county is 92 percent Federal land, and basically 
everything is a 404 or a 402 stream. So, as far as exactly what 
is and is not included within the Clean Water Act, I am not 
horribly familiar.
    I can only tell you theoretically, from what I understand, 
irrigation-induced wetlands are exempt and they never are in 
our county.
    With that, I will turn it over to Don.
    Mrs. Drake. Mr. Munks did make an interesting point of 
people feel there are different sets of rules based on which 
Army Corps district you are in, and I am sorry Secretary 
Woodley wasn't here to hear that because I have told him that. 
I have heard that form people in adjoining States to us as well 
when my constituents are working across State lines.
    Mr. Munks. Congresswoman, I appreciate the question because 
it kind of brings up what we are dealing with in the State of 
Washington. Understand, the State of Washington is split in 
half. There is a west side and an east side, and the water 
situation is completely different.
    On one side, we are inundated with water, record snowfalls. 
Lots of water comes down all of the rivers and follows up the 
tributaries on the west side. Now, on the east side, they are 
putting the water on the ground and creating their wetlands and 
their wet areas that they have to deal with.
    So it is kind of different on each side, but we have over 
the years put together a jurisdictional coalition between what 
the Corps will regulate through the 404 process and an 
expedited process that we go through that isn't as onerous as 
the 404 depending on what the project. That is in conjunction 
with the State Department of Ecology.
    And so, as a local county, when we have a project to do, if 
it is something that we are going to have to do with the Corps, 
we go directly to the Corps and they solicit from the State 
Department of Ecology, and Fish and Wildlife comment, and from 
the Federal agencies as well.
    But otherwise, with all other aspects of what we want to 
permit, we go to Fish and Wildlife, our State Fish and 
Wildlife, we go to our State Department of Ecology, and we put 
out to the tribes what it is that we are wanting to do. Now, in 
Skagit County, we have four tribes that we deal with.
    With their issues, with salmon, ESA issues, the process 
should be very onerous, but we have simplified it with these 
understandings of how we are going to cooperate together and 
who has what jurisdiction. That is kind of what we are afraid 
that we are going to lose, the years of cooperation that have 
been established and what may change from that.
    Now I very much am an advocate for clean water. That is 
something that is very important to me, and I chair the Water 
Quality Committee for the National Association of Counties. But 
we know that we want to keep a process in line or if it is 
changed at the Federal level, quickly establish what the bottom 
line in that legislation is so we can quickly adapt what we are 
doing, so we don't lose this opportunity.
    In our area, we have a very narrow fish passage window that 
we can work in water, and if we miss it, we lose our grants. If 
we miss it, we lose that year. If we miss it, we have flooding.
    Mr. Hulsey. Representative Drake?
    Mrs. Drake. I just wanted to ask the two of you something a 
little different.
    Mr. Hulsey. Can I follow up on that one real quick?
    Mrs. Drake. Just a minute. Let me get this out.
    That is you have heard the testimony about some people 
wanting all waters to be Federal waters. You have heard the 
concern that waters would be considered Federal waters. I just 
wondered, with both you and Ms. Jacobs, if you have a concern 
if all water was considered Federal water, if that wouldn't 
have an impact on your counties and decisions that you 
currently make today becoming Federal decisions?
    Mr. Hulsey. We have a unique situation in Wisconsin. We are 
the first and only State to fill the SWANCC loophole after it 
passed. It was a bipartisan measure signed by a Republican 
governor.
    So, as far as the isolated wetland issue goes, our State 
has stepped in, and I think it actually shows a good model for 
what Congressman Oberstar is trying to accomplish for the whole 
Country because we have not seen major disruptions in our 404 
process. Our counties still don't need permits for ditch 
maintenance. We never did. Our large ditches, if we do need a 
permit, if they do drain to a navigable water, then we get a 
general permit.
    Mrs. Drake. Would you agree that this bill might need 
better clarifications and definitions like Ms. Jacobs said in 
order to be really comfortable that it wouldn't do sort of an 
unintended consequence?
    Mr. Hulsey. Our DNR water experts who--again, we filled the 
loophole once, so we probably know more than anybody else about 
it--support the bill as written. Our governor supports because 
he says, why should Wisconsin be the only State?
    Some people say, well, let the States do it. You have State 
waters. You have national waters.
    When I go to visit my 70 year old mother in Oklahoma, I 
want to know there isn't some feed lot dumping pathogens into 
Lake Hefner, the source of her drinking water. I want to know 
that her home isn't at risk of flooding because of upstream 
uncontrolled wetland destruction. So that is why we need a 
Federal bill.
    I am fine with the bill the way it is written right now, 
but if navigable waters with the exploration of activities 
makes others more comfortable, that is fine.
    The point is when you see those flood pictures before, many 
of those don't qualify as wetlands because they are under water 
in April. They are dried out by the growing season in June.
    So I am not sure. While I appreciate getting back to where 
we are is a good start, we are spending millions and billions 
of dollars to move people out of places that they got a wetland 
permit to build their house in.
    I was sorry that the Member from North Carolina left here, 
but the Member from Washington, I looked at the wetland permits 
in these high flood, high hazard counties, and typically the 
Corps grants 90 to 100 percent of those permits to build in 
places that are going to be flooded and bought out 10 or 20 
years later. I mean there is compelling national reason for you 
to have the strongest possible regulation because you and we 
are going to have to pay to clean up the mess.
    Mrs. Drake. Ms. Jacobs, did you want to add something 
quickly? I know we have other questions.
    Ms. Jacobs. Just quickly because Commissioner Hulsey said 
much of what I wanted to say, and that is that the intent of 
this bill is to get us back to where we were. Our county has 
built out from north to south, east to west, under the existing 
Clean Water Act with 1,800 linear miles of canals and multiple 
water bodies. We are good shape, and we did it all working with 
the Corps.
    The biggest concern is we are now in a redevelopment mode, 
and we are getting more dense. We expect almost another million 
people in the next 20 years. So redevelopment, even in these 
economically depressed times, is still going on in Broward 
County.
    I have land use attorneys that are telling me the first 
thing they are going to do since the Rapanos is go check their 
malpractice insurance because they don't know how to weigh in. 
They don't know what to tell their clients about whether or not 
they need a permit.
    So the economic stimulus that will occur by making the 
clarifications necessary with this bill are really important to 
Broward County on top of the fact that we believe there are 
substantial water bodies that would be removed from the State's 
calculation for grants. If those are removed, our State would 
not receive the amount of Federal dollars it does now for Clean 
Water Act funding, and that would roll downhill and, of course, 
affect our counties--so, clarification of the bill.
    The reason why: I think there is room between what concerns 
of other areas of the country are having over language. What I 
keep hearing throughout the day, as Congress has said 
repeatedly, is that we are basically on the same page. We just 
have some discrepancy over the wording to get us there, and I 
think we can find that language change, and I am hoping that we 
do.
    Mrs. Drake. That is what I have heard from everyone all 
day. They want the clarification. They want it more simple, but 
they want to understand what the language means, and there is a 
lot of concern about what the language means.
    Ms. Jacobs. The only thing I would say about that is that I 
do believe that there are lots of folks, and some may be in 
this room and some are not, and some may be in that stack of 
papers that was demonstrated today, that would love to see a 
rollback of the Clean Water Act. They are not eager to see it 
is proposed now, and they are throwing out red herrings.
    So, when we talk about language and our willingness to 
discuss language, I want to make it clear that we want true 
discussions that are valuable to the point and not red herrings 
that are raising concerns such as by some of the groups. Here 
is a picture of a ditch at the edge of a road, a gutter 
basically, and the headline says: No Boats Needed: New Clean 
Water Bill Would Make Gutters Waters of the U.S. Well, this 
simply isn't true.
    Mrs. Drake. Ms. Jacobs, I have been in two hearings on this 
issue, and I have not heard that.
    Ms. Jacobs. Well, here it is.
    Mrs. Drake. What I hear from people is they are very 
anxious to protect our water, to not have our properties 
flooding, but they want to make sure that they are not 
unraveling the universe, as Congressman Rahall said earlier 
today.
    So, thank you very much. I will yield back, Mr. Chairman.
    Mr. Oberstar. We are not going to unravel the universe, and 
we are not going to unravel the Clean Water Act. That is for 
sure.
    We are going to clarify and strengthen and make sure that 
we return to the pre-Rapanos decision.
    Mr. Larsen.
    Mr. Larsen. Thank you, Mr. Chairman. Again, Mr. Chairman, I 
want to thank you for this hearing today and thank you for 
accommodating us in the Pacific Northwest.
    Mr. Baird and Mr. DeFazio and I, last year, got together 
and talked about who we could invite to this hearing and 
collectively decided that Commissioner Munks would be the ideal 
person. He doesn't believe it, but we all do. I think it is 
important to know that Commissioner Munks' comments really do 
come from not only with his heart in Skagit County but somebody 
who has had to work through these problems.
    I may have one question here, but I think the point that we 
wanted to make out of the Pacific Northwest is that there is a 
west side of the States, Washington and Oregon, which is also 
the wet side of the States in Washington and Oregon, and we get 
a lot of water. It is all relative, but in a relatively small 
place. It hits the Cascades, and it comes back at us.
    On top of that, we have--Don mentioned--the fish window. 
The Federal Government has listed the Puget Sound chinook and 
the bull trout as endangered or threatened species. So we are 
dealing with that on top of a lot of other regulations, some of 
which we have adopted ourselves, our growth management act.
    The concern you hear is one more set of uncertainties as a 
result of not just the SWANCC and Rapanos decisions but the 
current language of the proposed legislation. That is what you 
are hearing coming out the Pacific Northwest.
    So to hear you, Mr. Chairman, say that you are open to, I 
think you used the word, adaptations is heartening for us. We 
are looking forward to working with you on that.
    I think another thing I also heard today, though, is for 
those calling for the passage of H.R. 2421 as is. It may not be 
as simple as doing that since we have heard from attorneys on 
both side the issue. We have heard from counties on both sides 
of the issue. We are probably going to hear from agriculture on 
both sides of the issue. We heard from the agencies having a 
set of concerns as well. So we have plenty more work to do.
    I think you are going to get a commitment from us to work 
and try to get to a solution. We won't be guaranteeing that we 
are all going to agree, but certainly this hearing itself has 
given us a lot to work on.
    I will just conclude with a question for Commissioner 
Munks, a question of ditches. When I hear people don't have to 
get permits for ditches, I want to move there, frankly. Can you 
give us a little bit of experience about tide gates and ditches 
where we come from?
    Mr. Munks. It is interesting where we come from because the 
first settlers that came there saw that the most fertile ground 
was the land that was under water part of the day, and the 
tides went out, and it was open. So it was full of silt, some 
of the richest land you are going to find.
    So what they did is they established dikes, built drainage 
canals, build drainage ditches, put tide gates on it to now 
allow the saltwater to come back in on it, drained it off and, 
over a period of years, finally got to the point where they 
could grow just about any crop they want. So they are very 
adamant about keeping that saltwater off of it.
    Now, as Congressman Larsen said, from the west end of 
Skagit County where we get normally about 40 inches of rain a 
year to the east end where we get about 120 inches of rain a 
year, where we wind up in the mountains and we get some of the 
largest snowfalls of anywhere in the world, water is an issue. 
It is a problem.
    How we get that water from the mountain to the ocean is 
critical. All the cities established on these rivers because 
they were navigable passageways when the county was first 
established. So we have all of our build-up or the majority of 
our build-up of population is along the rivers.
    These drainage ditches and what they perform to keep the 
water off of the land also worked to help us with fish 
restoration projects. They allow us to create an area from 
where these smolts and fry are developing before they go out to 
the saltwater. As we worked through these various avenues of 
these tide gates and everything else, we have ourselves put in 
what we call self-regulating tide gates which do allow for 
these young salmon to come and go into the saltwater, but it is 
still the draining of the land that is most important.
    Now for every process we go through, as a county, as a 
commissioner talking to my staff, we take a look first off at 
what is the impact going to be to fish and what is the impact 
going to be to the quality of the water, and we monitor that 
quality.
    So when we replace a culvert, when we work in the ditches, 
we do it at times of year where we are going to have the least 
amount of impact on that species. It is a very onerous process 
that costs us a lot of extra money, but we do it to ourselves. 
We work with our State agency, Fish and Wildlife and with the 
Department of Ecology and the tribes to do those projects, and 
we thank you very much for the money you give us to help do 
that too. It is extremely important.
    We are a little bit different where we are, but we have put 
all kinds of standards on our ourselves in the State of 
Washington, and Oregon does the same thing.
    So I think it is important to understand that, from me, the 
Federal Government is to establish what is going to be the law 
and then, from there, establish what authority you are going to 
give to States and local governments because it is us on the 
ground level that are dealing with doing the projects and 
creating the fixes from all the people that are moving into our 
area. That is very onerous.
    Mr. Oberstar. Thank you. Thank you for your very thoughtful 
presentation. It just underscores the wide differences that we 
have throughout these United States. By crafting the Clean 
Water Act, we established the Federal-State partnership under 
which there was a floor of certainty and of continuity.
    Mr. Salazar.
    Mr. Salazar. Thank you, Mr. Chairman.
    Just a brief comment, I really enjoyed your comments, 
Commissioner Cope and Commissioner Munks.
    I think what we are looking at is really a Country that has 
different water laws throughout the Country. In the western 
States, we have, I guess in some areas, plenty of water. But in 
Colorado and Idaho and many areas, we are very sparsely 
populated States with some water and most of it goes for 
irrigation.
    Your comment, Mr. Chairman, on some States, and I don't 
know if Colorado is one of the States that has a lesser of 
water standards, but we don't have quite the demand, that you 
do back here in the East where it is heavily populated, on 
water quality issues.
    May I make the suggestion? I understand that all of us are 
here for clarification. It seems like everybody wants good, 
clear clarification.
    We want less litigation. I mean I am all for that. Colorado 
has the largest per capita water attorneys of any State in the 
Country.
    Maybe your suggestion as to what clarification means to you 
would be a good thing.
    Mr. Chairman, would you accept maybe a list of what they 
would like to see in the clarification?
    Mr. Oberstar. It is pretty much the same issues I have 
charged previous panels with clarifying or explaining, starting 
with Mr. Woodley and the Corps of Engineers and Mr. Grumbles 
for the EPA and the Justice Department, to be clear on what you 
mean about the categories of categorical exemptions that exist 
in the Clean Water Act and how we transfer those forward into 
this language.
    If, as an option--instead of, as my introduced bill does, 
deleting the word, navigable--if we retain the word, navigable, 
and accompany that term with prior existing regulatory 
structure of the Corps and of EPA in the several categories 
that I have already spelled out, give us your take on language 
to be sure that we are being very clear about the application 
of those terms.
    If we state in future legislation the term, prior converted 
farmland, what clarifications are needed? What definition of 
prior converted farmland is needed to be sure that we don't 
establish a new term that creates additional regulatory 
confusion?
    There is a body of regulatory management of that term. Give 
us your language about that clarification.
    Mr. Hulsey. Mr. Chair, a quick point on that, we are the 
number one farming county in Wisconsin. What we are seeing 
occasionally is farmers using prior converted to drain the 
lands--that is fine--but then selling that for development. So 
we do need a backstop in there to make sure that that land 
isn't then rolled over and is immediately flood-prone.
    Mr. Oberstar. Once farmland is no longer farmland, it no 
longer enjoys the exemption. That is clear in already existing 
practice.
    Mr. Hulsey. But there are many attempts to move forward 
without that because it, many times, doesn't meet the 
hydrologic qualifications for a wetlands.
    Mr. Oberstar. The purpose of the language back in 1972 was 
to protect farmers, give farmers certainty about managing their 
land, and that is the way that provision has been managed all 
throughout these years.
    Subsequently to enactment of the Clean Water Act, the term, 
prior converted farmland, came into use in pursuance of the 
agricultural exemption: normal farming, silvicultural and 
ranching activities, agricultural return flows, maintenance and 
construction of farm or stock ponds, irrigation ditches, 
maintenance of drainage ditches, maintenance of farm roads, 
forestry road, et cetera.
    Those are specific references in the Clean Water Act that 
apply to the term, prior converted farmland. Once it is no 
longer farmland, those exemptions don't pertain.
    Mr. Salazar. Well, Mr. Chairman, reclaiming the time that I 
don't have left, I would just like Mr. Cope to respond to that 
suggestion if you don't mind.
    Mr. Oberstar. No, no. No time comes out of your allotment.
    Mr. Cope. Thank you, Mr. Salazar.
    What I would like to point out is after the debate we had 
at the NACO conference last summer, NACO formed a task force 
comprised of two members from each of several committees and 
boards who have been participating by conference call and face 
to face meeting to try to come up with suggestions to do 
exactly what you are asking us to do. That work has been in 
progress for several months now. Still, we have a ways to go, 
but we are working on that.
    As we speak, there are people who are trying to come up 
with ideas to help clarify and improve the function of the 
Clean Water Act.
    Mr. Salazar. I yield back, Mr. Chairman.
    Mr. Oberstar. Mrs. Napolitano?
    Mrs. Napolitano. Thank you, Mr. Chair, and I am sorry I 
haven't been here to listen to most of it, but I was chairing 
my own Subcommittee hearing on water today, Indian water 
rights.
    I have some questions that might have already been 
addressed, but one of them is how is the Act affecting water 
supplies as they implement more recycling and reuse programs in 
order to address decreasing amounts of water they are receiving 
from rivers, lakes and other traditional sources?
    That is a big concern of ours in our Subcommittee. It is 
going to be affecting a lot. You don't have any worry because 
you have a lot of water, you have a lot of rainfall. But some 
of those in the arid west, we have to start thinking about that 
impact.
    Mr. Cope. Truthfully, ma'am, we have very little effect on 
water supply and recycle from the Clean Water Act.
    It is ESA that affects us because they want more instream 
flow for migrating salmon and for bull trout, and they have 
replaced a lot of our old flood irrigation with sprinkler 
systems which has actually decreased the recharge. So we are 
compounding the problem by jumping to conclusions that may well 
constitute a temporary stop-gap solution but, in the long run, 
may be harmful.
    But these aren't Clean Water Act actions, so I can't really 
address at that. We are so short of water, we would very much 
appreciate it if western Washington and Oregon would send some 
of that water on to us.
    Mrs. Napolitano. So would we in California.
    Ms. Jacobs. Well, as a native of California, I was born and 
raised in San Diego and moved to Florida when I grew up. 
Looking for another sunny place to move to when I was young, 
there was really only one choice.
    The water issues that we faced in California are very 
similar to those which we face in Broward County. In fact, when 
I joined the commission 10 years ago and went to my first water 
advisory board meeting, I was stunned to sit there and hear 
folks saying, wringing their hands, where can we find more 
water?
    I kept thinking we need to better use the water that we 
have because at 60 inches a year we are getting all that we 
need. It is that we are just not conserving it properly.
    So there are many programs that are my pet projects that we 
are really excited to talk about them. Today is not the time, 
but I am happy to share with you some of the national models 
that Broward County has set up and most recently in dealing 
with the issues of reuse, saltwater intrusion which is moving 
in and, of course, seepage from the Everglades into Broward 
County because it sits lower than the Everglades lands.
    With so many miles of canal systems, 31 cities and 28 water 
utilities in one regional government, it has been a herculean 
effort to try to draw them all to the same page. The State 
Legislature actually has a bill that has passed the Senate and 
it is moving through the House right now. It is a bill that 
will cause Broward County to spend upwards of $800 million 
within the next 15 years to build a plant for 1 of the 28, to 
build a plant that will deal with reuse.
    The problem for Broward County is that with so many canal 
systems, we are in a very sensitive environment where you have 
a three-tiered coral reef system, the nearshore environment 
where, with 1,800 miles of canals, you can imagine the runoff 
would impact the coral reef system or the backpumping into the 
Everglades which, of course, is being cost-shared with the 
Federal Government to clean it up because of nutrient 
overloading.
    So we are pursuing efforts with the State to try to be a 
little more reasonable with the ways in which we can use reuse. 
It is an important part of going forward for our county but 
most importantly is finding the grant funds to build these very 
expensive plants and try to draw all of these different cities 
and our sister counties, both Miami-Dade to the South and Palm 
Beach County to the north, into joint efforts to build 
treatment plants such as Tampa's desalinization plant that was, 
of course, cost-shared by its water management district. We 
don't enjoy that, but we are moving forward.
    Mrs. Napolitano. But you do see that that might affect some 
of the water suppliers because of the lesser water?
    Ms. Jacobs. You mean as far as the bill? No, I don't. I 
believe, we believe that the bill, as it is currently 
structured, does not take away from the State's existing powers 
and works with them.
    Our position today is that there seems to be those who 
believe that, and we think that language clarification will 
pull us to the same side.
    Mrs. Napolitano. That is what I was trying to get to is 
that it does not affect.
    Mr. Hulsey. But the biggest challenge is the 402 section 
that allows dischargers to discharge to ephemeral streams and 
headwaters. There are 400 of those permits in Wisconsin. So you 
could conceivably have a slaughterhouse putting deadly 
pathogens into a ditch that was ephemeral, making up all of 
that, and then that would be the water source of someone 
downstream. A hundred and ten million Americans get their water 
out of headwater streams.
    Another concern is we are seeing drawdown even from 
groundwater. Even a place that gets 40 inches of rain a year, 
our groundwater drawdown is such that we are starting to have 
seepage in from the lakes into our groundwater supply. We don't 
want that to happen because we have 130,000 dairy cattle. We 
still have a few cows in Wisconsin.
    But as a Great Lakes State, I should tell you that you are 
welcome to all of our water as long as it is 12 ounce cans.
    Mrs. Napolitano. I hear you.
    Well, I thoroughly support this bill that Chairman Oberstar 
has put through and thank him for working with some of my 
individual water provider to addressing some of the concerns 
that they brought forth on wastewater treatment because they 
were concerned that that would affect them adversely.
    I know he is willing to work with us, so I have no problem 
bringing some of the issues that my folks in my area in Los 
Angeles County and the rest of the State, for that matter, have 
in regard to recycle, reuse, storage and all those waters.
    I am just wanting to ensure that whatever loopholes they 
are talking about, that they are not allowed to continue, that 
we continue to provide clean water for everybody. Somehow there 
has to be a way to change it, to close the loopholes so that 
the attorneys are not the ones that benefit but the people 
benefit.
    Thank you, Mr. Chair. I yield back.
    Mr. Oberstar. Ms. Hirono.
    Ms. Hirono. Thank you, Mr. Chair.
    One of the major concerns is that after the SWANCC and 
Rapanos decisions, that there were waters and activities that 
had come under the CWA jurisdiction would no longer be covered, 
and therefore the States would have to step in to fill in the 
gap. I heard Mr. Hulsey say that Wisconsin is one State that 
had stepped after the SWANCC decision to fill in the gap. It 
seems as though Washington State had also done that and Idaho, 
and I commend your States for doing that.
    My question is, do you know if all of the other States have 
the regulatory framework and resources in place to fill in the 
gaps as your States have?
    Mr. Hulsey. I would just say, from Wisconsin, I don't 
believe so. I have worked in about 40 States in doing different 
flood reports and other efforts, and there is a huge 
variability of staff, huge variability. Some States have 401. 
Some don't.
    Obviously Florida and the State of Washington; I believe 
Michigan has addressed some of these issues. Minnesota, 
Indiana, Ohio have addressed parts of it, but they haven't done 
the full SWANCC fix, and I don't believe anybody has done the 
full Rapanos fix yet.
    Ms. Jacobs. Speaking just for Florida, we have not. There 
are revenue estimators right now looking at Florida's budget, 
estimating that we are $4 billion short for this year. The way 
that they are finding those dollars is you would be surprised, 
through the Environmental Protection Division and those dollars 
in addition to other areas.
    So, when we talk about resources and personnel resources 
that are being scaled back, not just on the State level but 
also on the county level, we have cut $100 million out of our 
budget last year by amendment, one that was recently passed 
through the actions of the State and reductions in property 
values. We expect another $100 million to be taken out of our 
budget.
    Last year, we had to let over 200 employees go, and we are 
looking at numbers that are twice that this year in our own 
staff.
    So, financial resources, personnel resources as a State and 
a county are becoming ever in shorter supply, and I believe 
that that gap is going to be reflected not just in the State of 
Florida but is ultimately going to result in the uneven balance 
of a standard of water quality nationwide, which is what the 
Act intended to do.
    Ms. Hirono. That says to me that we should have a sense of 
urgency about making sure that the regulatory scheme is in 
place to protect the people.
    By the way, Ms. Jacobs, I am glad that you showed us that 
picture of a ditch that some people are saying would be covered 
under this bill as water, that that would be covered, because 
those are the kinds of questions that have come to me also. 
People are saying, well, is the puddle in my back yard going to 
be covered? So, clearly, we need to get the information and 
education out on what we are trying to do here.
    Thank you. I yield back.
    Mr. Oberstar. Mr. Hayes, the gentleman from North Carolina.
    Mr. Hayes. Thank you, Mr. Chairman.
    I heard from someone outside that Supervisor Hulsey was 
sorry North Carolina was gone. Well, we are back. My wife is 
from Wisconsin. They don't call it the Mad City for no good 
reason.
    Thank you all for being here.
    Mr. Chairman, thank you for putting this together today.
    I am not a lawyer, but I have seen them do it on 
television. They say we are going to stipulate. Well, I am 
going to stipulate that everybody here and back home wants 
clean water. So we don't have to talk about that anymore, but 
there are some very troubling issues.
    This is a bill, in its present form, that I could not and 
would not support. I have experience in farming, construction, 
manufacturing, a whole host of things, and the folks that I 
know best in my district would be devastated by the bill in its 
present form. But, remember: Clean water, vitally important.
    A very honest question--I will get the titles right--
Commissioner Jacobs, I was just in Broward and Palm Beach 
Counties last week. I am a huge fan of the Everglades. Bass 
fishing, I mean that is a big deal.
    So my question to you is this bill in its present form is 
drawn to greatly favor the Florida Everglades, watery States. 
If this bill were closely drawn to reflect Nevada and Arizona 
and places like that, would it be as popular to you?
    I am kind of kidding you, but it is a serious question too.
    Ms. Jacobs. I understand it is, and I have to respectfully 
disagree that this bill treats the Clean Water Act today any 
differently in its intent, I believe and so does our staff, our 
attorneys and those who work not only for us but for the State 
that have looked at this bill.
    There may be some language changes that will help draw the 
clarification on the issues that have been raised today, but 
there are substantial areas where we think that they may find 
that harmony in language, but overall we believe that this 
bill, in its present form, closely mirrors the existing Clean 
Water Act and the original intentions of Congress in addition 
to the savings clauses that it picks up and mirrors within this 
language.
    Then, finally, I would say that when we talk about 
language, there is a difference between what the Clean Water 
Act originally said and the regulatory steps that have been put 
in place by the EPA and the Corps. If it takes adopting those 
standards that have been applied by the EPA and the Corps all 
the way up to Rapanos, then let's mirror in the bill's Act, and 
you get to the same place. That is where I think the difference 
lies.
    So I don't agree. Our county doesn't agree that it is 
substantially different, but we think that language changes 
will get us to where need to be.
    Mr. Hayes. You made an important point, but you didn't 
answer my question. If this were drawn to reflect Nevada or a 
dry State, it would not work so well.
    Back to the Corps, I think you mentioned the Corps. The 
Corps in North Carolina is very active. We have a tremendous 
number of wetlands and a whole host of issues. They have not 
come to me and said that they want the Clean Water Bill revised 
in its present form.
    The only point being we didn't create the Corps, but we 
create the regulations that they operate under. We did create 
the EPA.
    If you come to 435 of us to try to get your problem solved 
so that it fits 50 States, history will tell you. How many of 
you all have watched the program, John Adams, the series?
    Ms. Jacobs. Every Sunday.
    Mr. Hayes. Great series, but what I got from that and 
related to this is those 13 at that point had very different 
issues, very different ways of dealing with them, and the 10th 
Amendment was dropped in there to make sure of the sovereignty 
of the States. Taking in account the conscience of the people, 
if you couldn't govern yourself, you couldn't govern the 
Country, that was the way it worked best.
    So, again, I appreciate the patience of all of you who have 
been here and have not even come to the witnesses table yet, 
but again I want to make the point for my constituents, that in 
its present form it does not do what we want. It is very 
harmful and the 10th Amendment.
    Commissioner Cope?
    Mr. Cope. I would like to comment on that also, and I 
appreciate that comment, Congressman.
    I have been a commissioner for better than seven years, but 
I have been a cow veterinarian for over a third of a century. I 
will tell you for a fact I learned more practical knowledge 
about cattle from old ranchers at 3:00 in the morning in 
calving barns than I ever did sitting in a university 
classroom, listening to professors.
    There is a tremendous amount of knowledge out there at the 
local level that I very much fear, as I said earlier, we may be 
bypassing by using a set of standards of one size fits all and 
overriding the people that really know what the water is about 
out there.
    This is about water quality, and I am still a little 
confused. I have been infected with just about every infectious 
disease that cattle can pass on to humans with the exception of 
tuberculosis. I am still trying to figure out exactly which 
pathogens are coming out of the slaughterhouse. I have been 
infected with cryptosporidium more times than I can count.
    It is not a public health issue, and it is not a water 
quality issue. As I said, it is about jurisdictional and about 
local authority, and that is what the whole issue truly is.
    I appreciate your bringing that up. Thank you.
    Mr. Hayes. I am out of time. I think Commissioner Munks 
would like to make a comment.
    Mr. Munks. Just real quickly, a lot of what has been said, 
I think that maybe the State of Washington does things a little 
bit differently, but we heavily regulate what can and can't be 
built in our State.
    We would never allow slaughter facilities or any other 
toxic facilities to dump straight into the water systems. They 
have very strict requirements within our area for what can and 
can't be done and how they have to contain runoff on their 
entire property to process it before it can ever be released 
into any body of water anywhere.
    So, yes, I mean I think the one size doesn't fit all but, 
Chairman Oberstar, I very much appreciate this hearing. I very 
much appreciate your willingness to take a look at language 
that could help resolve what the differences are between those 
that are for, those that are opposed to because of most of it 
comes down to language. Most of it comes down to the 
definitions that are being put in it and how it affects the 
jurisdiction of each of the entities.
    So I very much appreciate the opportunity to be here.
    Mr. Hayes. Mr. Chairman, I appreciate your comments about 
crafting this to get the job done. We talk a lot up here about 
one size fits all. The mental picture of that does not work 
nearly as well for me as Commissioner Cope's spandex analogy. 
If you have been by the gym lately, spandex doesn't work for 
everybody.
    Thank you, Mr. Chairman.
    Mr. Oberstar. It depends on the body you are putting it on.
    Mr. Hulsey. Sometimes it works better than Lycra.
    [Laughter.]
    Mr. Oberstar. I just want to make it clear to the gentleman 
from North Carolina, the bill was not drafted in any way to 
favor one part of the Country over another. In fact, governors 
of water-short States, of Arizona, New Mexico and Montana, 
support the bill in its introduced form.
    But, as I have said, since there are concerns about the 
application of the bill as introduced, we are having this 
hearing to explore ways in which we can overcome those concerns 
and achieve the purpose of protecting the clean water of this 
Country.
    Mr. Hayes. If I gave the impression that it was drawn for 
one against the other, that was not my intention. But when you 
draw for 50, it is hard to make every one fit like that 
spandex. Thank you very much.
    Mr. Hulsey. But the goals of the Clean Water Act, Mr. 
Chair, water that is safe for swimming, beaches that are safe 
for swimming, fish that are safe to eat, is one goal that does 
fit all, and we are not there yet.
    Mr. Hayes. And everybody agrees.
    Mr. Oberstar. That is exactly it.
    Mr. Bishop, you have been very patient, waiting over here.
    Mr. Bishop. Mr. Chairman, I am very anxious to hear the 
testimony of Mr. Tierney from the New York State DEC. So, in 
the interest of time, I will pass.
    Mr. Oberstar. The gentleman's gracious gesture is most 
appreciated by the Chair and the remaining witnesses.
    I want to thank this panel and invite your contribution to 
the dialogue and further refining the provisions that I have 
already laid out on the table. Thank you very much for your 
contributions.
    We are going to add to panel four, Alex Matthiessen, 
President of the Hudson Riverkeeper, who has to leave here at 
7:40. You are going to have to talk fast.
    Ms. Joan Card, Director of the Water Quality Division of 
the Arizona Department of Environmental Quality; Robert Trout, 
Denver, Colorado from the Trout, Raley, Montano Law Firm; James 
Tierney, Assistant Commissioner for Water Resources, New York 
Department of Environmental Conservation; Mr. Mark Pifher, 
Aurora Water Director, Aurora, Colorado.
    We welcome you to the witness table and thank you very much 
for participating with us this evening.
    Mr. Matthiessen, we will begin with you.

     TESTIMONY OF ALEX MATTHIESSEN, HUDSON RIVERKEEPER AND 
   PRESIDENT, RIVERKEEPER, INC.; JAMES M. TIERNEY, ASSISTANT 
COMMISSIONER FOR WATER RESOURCES, NEW YORK STATE DEPARTMENT OF 
ENVIRONMENTAL CONSERVATION; JOAN CARD, DIRECTOR, WATER QUALITY 
 DIVISION, ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY; ROBERT 
V. TROUT, TROUT, RALEY, MONTANO, WITWER AND FREEMAN, P.C.; MARK 
   PIFHER, DIRECTOR, AURORA WATER ON BEHALF OF THE NATIONAL 
 RESOURCES ASSOCIATION, THE WESTERN URBAN WATER COALITION AND 
              THE WESTERN COALITION OF ARID STATES

    Mr. Matthiessen. Thank you, Mr. Chairman and Members of the 
Committee for the opportunity to testify before you today.
    My name is Alex Matthiessen. I am the Hudson Riverkeeper 
and President of Riverkeeper, Inc., a New York environmental 
organization that, for more than three decades, has principally 
depended on the Clean Water Act to protect the Hudson River, 
its tributaries and the New York City drinking water supply 
which serves over nine million people, half the State's 
population.
    The Hudson is an internationally-heralded model for 
waterway restoration, and it is largely because of the Clean 
Water Act and the ability that groups like ours have had to use 
it to protect the State's waters.
    I appear before you today on behalf of the Waterkeeper 
Alliance, a coalition of over 100 waterkeeper programs across 
the Nation, all working to protect their local rivers, bays, 
sounds, lakes and estuaries.
    In my testimony, I will briefly address the negative impact 
that the SWANCC and Rapanos decisions have already had on New 
York's water resources which is the basis for our strong 
support for passage of the Clean Water Restoration Act.
    By enacting CWRA, Congress simply would be reaffirming a 
prior Congress' intent to protect our Nation's extensive and 
interconnected water resources from pollution and degradation. 
This legislation is of utmost importance if this Nation ever 
hopes to fulfill Congress' original promise of eliminating 
pollution from our Nation's waters, a goal we have missed by 22 
years to date and, sadly, are still many years away from 
achieving.
    Previous witnesses have chronicled for you the current and 
still largely impaired state of our Nation's waters today and 
the deleterious impact that the SWANCC and Rapanos decisions 
have rendered and will continue to render on them. I will focus 
on the State of New York's waters and the challenges we face in 
trying to protect and restore them, challenges now greatly 
exacerbated by these ill-advised Supreme Court decisions.
    In New York, approximately 37 percent of the State's river 
miles and 77 percent of the State's lakes, including the Great 
Lakes, are impaired. Additionally, the fish in 41 percent of 
New York's waters are not safe to eat, and New York's wetlands 
are disappearing fast.
    An estimated 60 percent of New York's original wetland 
acreage has been lost to development. The pollution filtration 
and aquifer recharge provided by the region's wetlands is 
extremely important to ensure the delivery of safe drinking 
water to nearly half the State's resident population. Close to 
40 percent of New York's remaining wetlands are located at the 
headwaters of the Hudson River and its tributaries.
    Representing a combined 16,000 square mile area, these 
headwaters feed New York's Hudson River watershed and New York 
City's drinking water watershed which provides over 1.5 billion 
gallons of prizewinning unfiltered drinking water to over 10 
million people each day. But these watershed areas are 
vulnerable because they are inundated with isolated wetlands 
and ephemeral streams, water resources that no longer enjoy 
clear protection in a post-SWANCC and Rapanos world.
    Allow me to give you just two examples of the Corps' 
arbitrary, inconsistent and legally erroneous no jurisdiction 
determinations subsequent to SWANCC and Rapanos.
    The Lysander wetland, a 19-acre freshwater wetland located 
in Lysander, New York in Onondaga County, represents an 
excellent illustration. In 2001, when local residents realized 
that plans were underway to fill the Lysander wetland and 
construct housing on the site, they presented the Corps with a 
1957 and 1962 map of the area. These maps depicted a brook that 
had been channeled underneath their adjacent subdivision, and 
it flowed from the Lysander wetland into the Seneca River, a 
navigable water of the United States.
    Ignoring this information, the Corps issued a no 
jurisdiction determination in 2003, stating that the site at 
issue was an isolated wetland. When the homeowners subsequently 
pressed the Corps to reconsider, the Corps explained that the 
Buffalo District, as a matter of post-SWANCC legal 
interpretation, no longer considered hydrological connections 
to navigable waters through manmade water conveyances 
sufficient for establishing Clean Water Act jurisdiction.
    The homeowners took the case to the New York State Attorney 
General's Office. After conducting its own investigation, the 
attorney general filed a notice of intent to sue the Corps and 
EPA in November 2004.
    In response to this legal challenge, the EPA ultimately 
reversed the Corps' decision. The citizens ultimately prevailed 
but at enormous cost and waste of time and taxpayer dollars.
    The Annsville Creek wetland provided another alarming 
illustration of the Corps' inability to effectively protect 
wetlands, post-Rapanos. In October, 2007, the Corps found that 
a wetland in Peekskill, New York was isolated and non-
jurisdictional despite being only 50 feet away from Annsville 
Creek, a tributary of the Hudson River, flowing south out of 
the highlands into Peekskill Bay.
    Despite acknowledging that the wetland is situation on top 
of a former landfill and may be contributing to the pollution 
of Annsville Creek, the Corps determined that its hydrological 
connection to the creek through a swale feature was 
nonjurisdictional. The Corps purportedly found it significant 
that water only flows from the wetland to Annsville Creek and 
not in the other direction.
    The Corps also determined that the wetland lacked a 
significant nexus to an intermittent stream that directly flows 
into the Annsville Creek despite substantial evidence to the 
contrary.
    Both of these cases illustrate the myriad problems created 
by arbitrary and legally flawed Corps' jurisdictional 
determinations, post-SWANCC and Rapanos, and a need for costly 
litigation in order to preserve wetlands and waterways that 
should, from the outset, be clearly protected under the Clean 
Water Act.
    To make matters worse for us in New York, the DEC, our 
State environmental agency, only regulates wetlands that are 
12.4 acres or larger except in those cases where a wetland can 
be shown to be of local unusual importance by the DEC 
commissioner. With the loss of protection under SWANCC and 
Rapanos, there is now no clear Federal or State protection for 
thousands of small but hydrologically significant wetlands 
throughout New York State that are threatened by development.
    Without clear and strong guidance from Congress on the 
broad jurisdictional reach of the Clean Water Act as currently 
outlined in the Clean Water Restoration Act, Riverkeeper simply 
cannot fulfill its mission of acting on the public's behalf to 
protect the Hudson River and other vital New York waters. CWRA 
will put an end to the state of confusion that SWANCC and 
Rapanos have engendered among relevant Federal agencies and 
return to the status quo of a Clean Water Act regulation that 
was in place for 30 years prior to 2001.
    Rather than expanding the reach of the Clean Water Act, as 
CWRA's opponents have disingenuously argued, the CWRA 
amendments merely conform the statutory text of the Clean Water 
Act to the EPA and Corps implementing regulations that were in 
place for more than 30 years prior to the upheaval caused by 
the SWANCC and Rapanos decisions.
    Now, more than ever, Congress must pass the Clean Water 
Restoration Act to reaffirm the statute's original intent which 
accordingly to the language of the Act itself, as has been 
pointed out today, was to restore and maintain the chemical, 
physical and biological integrity of the Nation's waters and 
make our Nation's treasured waters fishable and swimmable once 
again. Needless to say, fulfillment of that goal is long 
overdue.
    Thank you very much, and I also just want to thank you very 
much for giving me the chance to jump onto this fourth panel 
and try and catch the 8:00 train home. My staff attorney is 
five months pregnant and getting her home at 1:00 or 2:00 would 
get me in steep trouble with her husband, I am sure. So, thank 
you very much.
    Mr. Bishop. [Presiding.] Thank you very much and thank you 
for your patience today.
    Mr. Tierney, I know you have a flight to catch as well.
    Mr. Tierney. Thank you, Congressman Bishop.
    I really appreciate the opportunity to speak with you here 
today and, this, we find is a critical issue.
    Now my name is Jim Tierney. I am the Assistant Commissioner 
for Water Resources in the State of New York, and that means in 
my purview I have flood control, flood protection, wastewater 
treatment plants, a lot of clean water and safe drinking water 
responsibilities. So I wanted to share a few things on a State 
perspective on this, which I think is important, and I think in 
some ways I can speak on behalf of many States, and I will 
explain why.
    The Clean Water Act has been integral to the protection of 
our Nation's waters for more than 30 years. Unfortunately, the 
ruling of the United States Supreme Court, particularly in 
Rapanos in my way of thinking, jeopardizing the Federal water 
pollution protections for the majority of the Nation's rivers, 
streams and wetlands.
    So the State of new York formally and the governors behind 
this support the Clean Water Restoration Act of 2007. Our 
understanding of this legislation, our reading of it is that it 
truly is in the nature of a restoration.
    For over 30 years, the Clean Water Act was understood as 
regulating the discharge of pollutants, including fill, into 
traditional navigable waters, their non-navigable tributaries 
and wetlands adjacent to these water bodies. This view of the 
scope of the Act was contained in regulations promulgated by 
both the Environmental Protection Agency and the Army Corps of 
Engineers and, more precisely, was embodied in the regulatory 
definition of the term, waters of the United States. This 
legal, this regulatory definition is fundamental to the full 
scope and jurisdiction of the Act.
    While New York and the vast majority of States have 
expressed strong support for this EPA and this Army Corps 
regulation--I want to stress this to you--indeed, 34 States 
joined in an amicus curiae brief before the Supreme Court, 
which supported this regulatory definition in the Rapanos case, 
2 States supported amicus briefs on the opposite side.
    Now, New York strongly would like to say we concur with the 
scientific and technical findings of the Act. We actually find 
these findings to be just simply excellent and, in a way, tell 
it all with respect to the scientific connection, 
scientifically demonstrated connection between all waters.
    New York, as Alex mentioned, has lost 60 percent of its 
wetlands since early colonial times. Many other States have 
suffered even higher losses. I want to underscore that 
restoration efforts to get back what we have lost are difficult 
and time consuming, and a great fear that we have is that once 
our wetlands and small streams are lost and the biodiversity 
which they foster is lost, it may be difficult or impossible to 
reestablish this.
    Preserving wetlands and small streams through effective 
Federal statutory and regulatory programs is environmentally 
beneficial, economically effective and provides reasonable 
certainty for the regulated community.
    I just say flatly that we just simply don't know, and the 
experts on my staff don't know how you fulfill the purpose of 
the Clean Water Act to restore and maintain the physical, the 
chemical and the biological integrity of our Nation's waters 
without protecting the headwater streams and the headwater 
wetlands. We don't know how you do that. So the Clean Water 
Act, at a minimum, has to fulfill that function.
    We see Rapanos and the mischief involved in some of the 
Rapanos decisions as walking far away from that, and so that 
undercuts the fundamental purpose of the Clean Water Act. We do 
wish that certain Supreme Court members had read the 
fundamental purpose of the Clean Water Act when they were 
coming up with these interesting and innovative mechanisms to 
try and define what the scope of waters of the United States 
are.
    Now, with just a little more time left, I want to speak in 
terms of rebuttal and in terms of State interest. There is 
something called 401 water quality certification which gives 
the States, as a whole, regulatory authority over certain 
Federal permits and Federal actions.
    If you shrink the definition of what constitutes a water of 
the United States, you shrink the States' regulatory authority 
over hydroelectric dams, nuclear power plants, all FERC 
facilities and FERC-regulated facilities and other Federal 
permits issued by the Army Corps of Engineers. So this 
shrinking of the definition of the waters of the United States 
expands the scope of Federal preemption over very important 
things to the State of New York.
    It also doesn't address upstream pollution into downstream 
areas. For instance, Arkansas and Oklahoma have sued each other 
famously over a number of years over upstream pollution going 
to a downstream State.
    The Clean Water Act presents a remedy to States, a legal 
remedy that supplanted previous Federal common law. By 
shrinking the scope of the term, waters of the United States, 
you literally take away a very valid and very useful interstate 
remedy. Frequently, these things are worked out without getting 
into lawsuits, but sometimes, frankly, we have to tell our 
fellow States, do we need to sue you or are we going to work 
this out?
    Drinking water quality, flooding, dam safety and the like, 
all these things are closely connected to the integrity of our 
headwater wetland and our headwater streams. When you eliminate 
the wetlands, if you fill the wetlands, if you fill streams, 
water moves downstream ferociously.
    A cubic foot of water is 62.4 pounds. More of it rolling 
down the stream literally rips it apart. It adds a lot of 
turbidity to the drinking water supply, and that has to either 
be filtered out or it can cause waters that are previously 
unfiltered water supplies, such as New York City's drinking 
water supply, to need filtration.
    I want to underscore this with you because we really 
believe that if you deregulate these wetlands, if you 
deregulate the controls over these wetlands, if you don't 
correct the Rapanos decision, we think the New York City 
drinking water supply, for example, is at risk. If you simply 
have two four-hour periods of turbidity over five NTUs--that is 
pretty clear water--getting into the New York City distribution 
system, it could result in an automatic filtration order under 
current Federal law, under current Federal regulations.
    This is a $10 billion issue for us. To operate that plant 
each day would be another million dollars. So there is huge 
economic cost as well.
    I want to mention one other thing. Our worst case that has 
been presented, and I will sum up quickly, is that small 
streams, that small wetlands and some of these ditches, as 
people talk about, would be regulated. That can be handled 
through a very efficient and very effective general permit 
process.
    The worst case on the other side, that these small wetlands 
and streams can be filled or you can pour oil into them and it 
is not requiring a Clean Water Act permit, is not handled by 
the other side. I haven't seen anybody respond to that 
effectively.
    Thank you for your time.
    Mr. Bishop. Mr. Tierney, thank you very much.
    Ms. Card.
    Ms. Card. Thank you. Mr. Chairman and Members of the 
Committee, thank you for the opportunity to testify today 
regarding H.R. 2421, the Clean Water Restoration Act of 2007.
    I am the Director of the Water Quality Division of the 
Arizona Department of Environmental Quality. The Arizona 
Department of Environmental Quality implements a number of 
water quality protection programs in our State, including the 
Federal Clean Water Act.
    Arizona's governor, Governor Janet Napolitano, issued a 
letter of support for the legislation, and we thank you. We 
thank Chairman Oberstar for introducing this legislation, the 
co-sponsors and this Committee for your leadership in this area 
of great importance to our State.
    The Arizona Department of Environmental Quality has very 
serious concerns about the potential impact of the Rapanos 
decision on clean water programs in Arizona. The decision could 
minimize, if not devastate, surface water quality protections 
that have been implemented in Arizona under Federal leadership 
at least since the 1972 amendments. While the decision alone is 
of grave concern, the implementation guidance jointly issued by 
the EPA and the Corps further puts Arizona's waters at great 
risk.
    Our specific concern for Arizona stemming from the Rapanos 
decision and guidance is the potential elimination of Clean 
Water Act protections particularly Section 402, point source 
permitting protections for ephemeral and intermittent or 
nonperennial waters and headwaters streams.
    Arizona's landscape includes a vast network of these 
nonperennial streams: 96 percent of the stream miles in Arizona 
are nonperennial, and most of them are a significant distance 
from the Colorado River. The Colorado River through the Grand 
Canyon has been deemed by the Army Corps of Engineers as 
Arizona's only traditional navigable water. I have included a 
map and graphs with my written testimony that illustrates these 
points.
    Arizona's largest water body, second in size only to the 
perennially flowing Colorado River, is the Gila River. The Gila 
River, an interstate stream originating in our neighboring 
State of New Mexico, drains two-thirds of the land area in 
Arizona.
    The Gila flows intermittently in wetter years, but in times 
of long-term drought such as we are presently experiencing, 
this massive water body is largely dry and any flow is highly 
disconnected. The Gila's main tributaries include the Salt, 
Santa Cruz and Hassayampa Rivers which are very large and 
mainly ephemeral streams.
    Arizona's largest and fastest growing counties, Maricopa, 
Pima and Pinal Counties--I believe Maricopa is the Country's 
fastest growing county--are located in the heart of the mostly 
ephemeral Gila River drainage. Subdivisions require sewage 
treatment facilities, and many of these facilities construct 
outfalls and discharge to ephemeral arroyos in these 
neighborhoods. These facilities currently hold Clean Water Act 
point source permits for discharges of wastewater that are 
protective of aquatic life, agricultural irrigation, livestock 
watering and body contact uses.
    Without Clean Water Act protections, the Arizona Department 
of Environmental Quality will be unable to require permits that 
are protective of these uses I have just listed. Arizona law 
prohibits the Arizona Department of Environmental Quality from 
being more stringent than the Federal Act.
    Arizona's nonperennial stream water quality has benefitted 
from Clean Water Act protection since the early 1970s when 402 
point source permits were issued for several facilities 
discharging wastewater to ephemeral streams, including permits 
for major publicly-owned treatment works serving the cities of 
Tucson and Phoenix and discharging large amounts of effluent to 
the Salt and Santa Cruz Rivers which are tributaries to the 
Gila River as I just described.
    Combined, these facilities treat over 200 million gallons 
per day of municipal and industrial sewage and still discharge 
to these large ephemeral waters under Section 402 point source 
permits. The Rapanos decision and guidance have presented the 
opportunity for these large POTWs and other dischargers in 
Arizona to argue that their discharges do not require Clean 
Water Act pollution limits after more than 30 years of such 
limits.
    The impacts of the Rapanos decision and guidance in Arizona 
may be widespread, impacting surface water quality standards 
for nearly all of our surface streams and nearly all of our 160 
Section 402 permits for wastewater and stormwater discharges to 
waters other than the Colorado River.
    Without these Federal Clean Water Act protections which 
have been in place for 35 years, my agency may not be able to 
protect Arizona streams for aquatic life uses for species like 
Arizona's native Gila and Apache trout. We may not be able to 
protect surface streams for agricultural irrigation use or 
livestock watering, and we may not be able to prohibit 
wastewater discharges to our most pristine, high quality 
streams like Sabino Creek and the Little Colorado River. I have 
also included pictures of those water bodies in my written 
testimony.
    Our governor and the Arizona Department of Environmental 
Quality support the Clean Water Restoration Act of 2007 because 
it ensures the longstanding pre-Rapanos Clean Water Act 
programs and protections remain in place to protect the surface 
water resources in our State.
    Thank you.
    Mr. Bishop. Thank you very much.
    Mr. Trout.
    Mr. Trout. Good evening, Mr. Chairman and Members of the 
Committee.
    My name is Robert Trout. I am an attorney in private 
practice in Denver, Colorado. I have been practicing law for 
about 32 years in water rights and water quality issues, 
representing both private and public entities. Right now, I am 
general counsel for the Northern Colorado Conservancy District 
which is the largest agricultural water supplier on a wholesale 
basis in the State of Colorado.
    I have been asked by Congressman Salazar to testify this 
evening to bring to your attention really the problems that the 
definitions in the bill potentially raise for agriculture, 
particularly irrigated agriculture in Colorado.
    As you probably all know, Colorado does not receive enough 
natural rainfall for growing crops without artificial 
irrigation. So virtually all crops grown in Colorado are grown 
using water that is diverted from streams or pumped out of 
wells, applied to the crops and then either seeps into the 
ground or runs off to nearby swales, drainages and rivers.
    In Colorado and most western States, we have a somewhat 
unique set of laws that govern the allocation of water which we 
call our water rights laws. In Colorado and I think most other 
western States, water, under the constitution, is declared to 
be the property of the public, but it is subject to 
appropriation by private citizens.
    Those private citizens have the right to divert water from 
the streams, apply it to irrigation, and then whatever is left 
runs back to the streams. These rights are determined in State 
adjudication proceedings and are considered to be private 
property rights under both Federal and State constitutions.
    In Colorado, farmers and I am personally, obviously, not a 
farmer. My grandfather was, but he actually farmed in 
Washington State. So I had never the privilege of having to 
operate an irrigated farm, but most of my clients do, and they 
use a number of methodologies for irrigating farms.
    One of the oldest is what we call flood irrigation where 
you simply flood the field with water, and you let it sit there 
a while, and it runs off or seeps into the ground.
    As modern technology has evolved and people have tried to 
become more efficient with water use, they now use what we call 
furrow irrigation. The field actually has furrows. Water runs 
down those furrows between the lines of plants, and you can use 
the water a lot more efficiently that way or you can use 
sprinklers.
    In Colorado, these privately constructed facilities and the 
water that is in them is considered to be private property. 
Once the water is diverted from a stream in Colorado until it 
comes back to the stream, it is considered the appropriator's 
private property.
    Our State definition of waters of the State, which is the 
parallel definition from the Federal definition, excludes those 
waters. Thus, if you modify the Clean Water Act as the way this 
bill proposes, to include waters which potentially are in the 
process of use, it will expand the definition as it applies in 
Colorado.
    The problems with the bill that we see from the respect of 
agriculture really come from the fact that we do believe it 
expands the traditional definition of what the Clean Water Act 
covers. You have heard a lot of testimony today about the fact 
that it includes activities and also that the definition states 
the intent to assert jurisdiction as far as constitutionally 
possible, and that is not certainly how the Act has been 
interpreted in the past.
    One term used in the Act is wet meadows. In Colorado, and I 
think Congressman Salazar himself, it is not uncommon to have 
hay fields that you flood. Well, once those hay fields have 
been flooded and they may be near the stream, they are a wet 
meadow. So the question that arises in our minds is are such 
fields, once they are irrigated or because they are irrigated, 
do they become subject to the jurisdiction of the Clean Water 
Act?
    The same with flood irrigation alfalfa fields which also 
may be flooded completely for a while and then not used.
    Also, the term, wetlands, really causes a lot of 
consternation among people who operate ditches in our State. 
Ditches leak and, because they leak, it is not uncommon for 
wetlands to form below a ditch for a half an acre, maybe an 
acre, maybe less, maybe more in areas where the ditch leaks.
    Well, we obviously are trying to be more efficient in the 
use of our water, and the question that arises in our mind is 
if that ditch is lined or that seepage is stopped, that has an 
effect on the wetland. Is that regulated under the statute as 
it is proposed?
    I will tell in Colorado, in the Omaha Ditch of the Corps of 
Engineers, currently that is not regulated. That is not 
considered to be a water of the United States.
    Finally, farms have many impoundments of water. They have 
stock ponds. They have ponds used to store water before it is 
applied to irrigation. They have small reservoirs.
    The definition that includes impoundments of the foregoing, 
particularly coupled with the language that the intent is to 
extend the legislative power of Congress as far as possible 
under the Constitution, raises serious concerns as to whether 
all of those, for practical purposes, private ponds would be 
regulated under the Act. Remember, these are ponds that do not 
discharge to any other waters. The water simply is pumped out 
or run out by gravity until to be used for its intended 
purpose.
    In response to the Chairman's request that witnesses 
discuss the manner in which this legislation could be improved, 
there are two things that could be done to really remedy these 
issues. One would be to have a specific exemption for irrigated 
agriculture, that waters that are in the process of being used 
for irrigation are not waters of the United States. That 
exemption is not in the statute now.
    There is an exemption from Section 402 discharge 
requirements, but that applies to return flows. There is an 
exemption from 404 permit requirements, but that doesn't apply 
to discharge requirements.
    The concern we see is application of pesticides to an 
irrigated field potentially could require a discharge permit 
under this definition. If the Committee and the Congress wish 
to go forward with a clarification, there should be a specific 
exemption for such things.
    Thank you very much.
    Mr. Oberstar. [Presiding.] On that point, isn't irrigation 
a normal farming activity?
    Mr. Trout. It is in Colorado, yes. Yes.
    Mr. Oberstar. It is all throughout the Midwest. It is all 
throughout the area.
    Mr. Trout. I understand it is becoming common in the United 
States.
    Mr. Oberstar. Yes. So it is covered by the exemption for 
normal farming activities.
    Mr. Trout. Which exemption are you referring to?
    Mr. Oberstar. Irrigation. You are saying you wanted a 
special reference to irrigation, but irrigation is considered a 
normal farming activity.
    Mr. Trout. But which exemption from the Clean Water Act are 
you referring to now?
    Mr. Oberstar. The exemptions in the Clean Water Act that 
are included by specific reference in the introduced bill.
    Mr. Trout. There are two exemptions. There is an exemption 
402.
    Mr. Oberstar. Agricultural return flows.
    Mr. Trout. That is correct.
    Mr. Oberstar. Normal farming, silvicultural and ranching 
activities.
    Mr. Trout. The agricultural return flows exemption applies 
to agricultural return flows.
    Mr. Oberstar. Yes.
    Mr. Trout. Water applied.
    Mr. Oberstar. Normal farming activities includes 
irrigation.
    Mr. Trout. Are you referring to the exemption on Section 
404?
    Mr. Oberstar. The savings clause in the bill.
    I don't want to take from Mr. Pifher's time right here. I 
just wanted to make that point. We will come back to it.
    Mr. Trout. Okay.
    Mr. Pifher. Good evening. My name is Mark Pifher. I am 
Deputy Director of Water Resources for Aurora Water, the third 
largest municipality in Colorado. I was formerly the Director, 
though, of the Colorado Water Quality Control Division.
    I am here today on behalf of certain western municipal 
interests. Bob was covering agriculture. I cover the urban 
areas, in particular, members of the Western Urban Water 
Coalition, the Western Coalition of Arid States and the 
National Water Resources Association. Each of these municipal 
entities face the daunting challenge of providing reliable, 
sustainable and safe water supply as well as wastewater and 
stormwater services to their many citizens.
    Water is a scarce and precious resource in the West, and we 
are all dedicated to its preservation and wise use. Therefore, 
we applaud the efforts of the Chair here to forge a bill that 
would meet everyone's need.
    We believe that if we work together, identify our common 
interests as I think has been done by some of the panels here 
today, we can protect our resources and their many uses 
including irrigated agriculture, municipal use and aquatic life 
and we can ensure that the Clean Water Act remains the sound 
foundation for water quality protection that it has been for 
over 30 years.
    I would like to focus my particular comments, though, on 
infrastructure needs for western municipal entities and, in 
particular, how the bill is currently drafted may impede that 
infrastructure construction.
    In the West, we have growing populations, and unfortunately 
we have shrinking water supplies. Climate change, which we all 
believe is real, is only going to exacerbate that situation. 
Therefore, we need to adapt, and that includes adaptive 
measures that are related to infrastructure. Let me give you a 
few examples.
    First, we will have an increased reliance, I think, on 
reuse and recycling projects as Mrs. Napolitano referenced. I 
think they are very important.
    We will have the installation, I think, and maintenance 
responsibilities associated with new stormwater control 
structures including artificial wetlands.
    We are going to have an expanded use, I think, of 
groundwater recharge projects, and Mr. Grumbles addressed the 
groundwater question.
    We will have the installation, I think, of additional best 
management practices to control nonpoint source runoff which is 
the remaining, I think, most significant uncontrolled source of 
pollutants today.
    We are going to have to have the construction of additional 
storage reservoirs to capture snowmelt, including some high 
elevation storage. We will have replacement of leaking and old 
and aging infrastructure and pipes and pipelines.
    We are going to have to carefully manage our water, 
including releasing water to support threatened and endangered 
species.
    We are going to have to learn to use, I think, what we used 
to consider to be wastewater like produced water from energy 
development that is occurring today in the West and place it to 
beneficial use.
    But each of these activities requires the construction of 
new or replacement of infrastructure.
    If the Clean Water Act embraces all waters to the extent 
they are subject to the legislative power of Congress under the 
Constitution and all activities affecting those waters, the Act 
could be interpreted by the courts to embrace all groundwater, 
all draining activities, all associated recreational 
activities, traditional flood control activities and stormwater 
control activities, all activities on Federal lands in source 
water protection areas.
    The permitting burden on municipalities could increase 
significantly as more western gullies, washes, dry stream beds, 
intermittent streams that flow only in response to 
precipitation, and effluent and dependent and isolated waters, 
and activities on public and private land surrounding such 
waters are now found to be by the courts within the scope of 
the Act.
    Equally important, thought, to the extent there is a new 
Federal nexus, there may be triggered additional NEPA reviews 
which are very costly and very expensive for municipal 
entities.
    On the wastewater side, there will also be a need for new 
infrastructure. Small towns will face additional burdens, 
utilizing lagoon treatment technology. Constructed wetlands 
will be a less attractive wastewater treatment alternative. 
Zero discharge options may be eliminated. Reclamation projects 
may be more difficult to permit.
    Similar constraints will be faced, we are fearful, by 
stormwater control entities.
    Relative to climate change, I think we will see a need for 
increase storage to buffer us through drought times, enhanced 
stormwater management to handle those extreme rainfall events 
that the scientists are predicting, increased underground 
storage of water and expansion of water collection systems 
including pipelines and a construction of desalinization 
projects and a utilization of brackish waters. Again, if the 
definition of waters of the United States overly broad, these 
projects will similarly face increased regulatory burdens.
    In conclusion, western municipalities along with State 
Governments and the EPA are partners in the implementation of 
the Act. We currently expend enormous financial resources in 
meeting and exceeding water treatment and wastewater discharge 
requirements. We recognize the value of our water resources.
    We want to diligently work to protect them, including in 
arid climates as referenced by Arizona. There is no intent to 
exempt large municipal discharges. However, to the extent 
statutory changes are needed, they should not add to Federal 
oversight, reduce local flexibility, add to infrastructure 
costs or increase litigation opportunities.
    We certainly stand ready to work with this Committee in 
forging some amendments that will work for all people involved.
    Thank you.
    Mr. Oberstar. Thank you, Mr. Pifher.
    I am particularly sensitive to your comments about water-
short western States. Early last year, this Committee, as one 
of our first pieces of business, moved legislation through the 
Subcommittee, the Full Committee and through the House to 
provide $1,800,000,000 in grant funds to water-scarce States to 
do exactly the things that you were describing.
    Regrettably, as we affectionately call them, the other 
body, hasn't acted on that bill. If your Senators and others 
would get going and find a way to do something other than 
appoint ambassadors and judges, then we would get on with the 
critical business of this.
    Mr. Pifher. We will see what we can do to help.
    Mr. Oberstar. I will go to Mr. Bishop to start with.
    Mr. Bishop. Thank you very much, Mr. Chairman.
    I know Mr. Tierney has a plane to catch, so I will respect 
that and simply say that I have a couple of questions which I 
would like to submit to you in writing and ask you to respond 
in writing so that it may become part of the permanent record.
    I thank you for your testimony, and I thank you for your 
patience and, most importantly, I thank you for your service to 
the people of New York. We are very fortunate.
    Mr. Tierney. Well, thank you. Thank you, Congressman 
Bishop.
    Mr. Oberstar. That is it?
    Mr. Bishop. I yield back the balance of my time.
    Mr. Boozman. Very good. We need to remember.
    Mr. Oberstar. Mr. Boozman.
    Mr. Boozman. Thank you, Mr. Chairman.
    Mr. Tierney, I was in New York earlier last week with a 
field hearing with Mr. Hall, and I want to compliment the State 
of New York. The testimony was excellent. It was just a very, 
very good hearing. I learned a lot. I hope that it was helpful 
for us to be down there and do the hearing.
    I guess my concern is this, in your testimony, you cite 
that 35, or whatever, people joined with the amicus brief, 
saying that they were opposed to rolling back the provisions, 
okay, prior to the ruling.
    Mr. Tierney. Yes, sir.
    Mr. Boozman. In other words, they supported the things that 
were in place. That is fine, but we are not arguing that. We 
are arguing not those provisions. We are arguing the potential 
provisions for this new legislation.
    Now, in your closing deal, you said, ``This is the guidance 
the States are seeking from Congress, and I believe H.R. 2421, 
by reaffirming and articulating the original intent of the 
Clean Water Act, frames the Federal wetland and small stream 
regulation effectively. By clearly defining this issue, the 
States will be able to, once again, with the Federal 
Government, effectively regulate all connected wetlands and 
streams.''
    But we have had a situation today where the four regulating 
agencies that testified, and you were probably here. I can 
barely remember it now because it was a while ago, but all of 
them voiced concerns that this was a fairly significant 
departure from the pre-Rapanos decision. Okay?
    They were basically saying, when you talk about all 
interstate and intrastate waters, they testified that that 
might include groundwater also. They also said that there was 
no exclusion for wastewater treatment in the holding ponds. 
They also testified that it didn't include prior converted 
cropland.
    I would submit that those 35, when you talk in those terms, 
you are not going to have 35 people support that for 35 
jurisdictions, and I guess my concern is that.
    The other thing that you mention in your testimony is that 
somehow this clears this up. Now I am just a guy from Arkansas, 
but we had four very intelligent people that are regulators. 
They agreed on two things. They agreed that it extended the 
jurisdiction significantly. They also agreed that they were 
confused, and it wasn't clearing anything up for them.
    We had another panel, the lawyers that were here. Again, we 
had two for, two intelligent guys, two against that made very 
good arguments. We have had the last panel, and now we have 
you.
    So, again, I just don't see either one of those things 
being the way it should be.
    Mr. Tierney. Okay. I will try and be brief.
    There certainly are a few clarifications that were talked 
about today that are in the EPA and Army Corps regulations 
which could be cited and clear those up, clear up those items.
    The concern I have, I think particularly with Mr. Grumbles' 
statements, is he wants to keep the term, navigable, in this 
definition. Now we can go through and work through getting a 
better definition of what is covered if that is what people 
want. I would love to work with you on that. But as soon as you 
add in the term, navigable, then it is the source of all sorts 
of mischief.
    Mr. Boozman. I understand, but isn't all inter and 
intrastate water, again excluding the wastewater, doesn't that 
bother you a bit?
    Mr. Tierney. It actually doesn't. In the State of New York, 
groundwater is a water of the State of New York under our 
program, but certain other things are not. We regulated 
groundwater because the Federal Government doesn't do it and as 
the statute doesn't say groundwater.
    The EPA regulations and the Army Corps regulations didn't 
say groundwater. It was never understood as being true 
groundwater that would be involved in the program. So that 
didn't bother me, given 35 years of experience with this had 
operated.
    Mr. Boozman. So, with your experience, you feel like that 
this takes us just back to pre-Rapanos, no further?
    Mr. Tierney. Yes, sir.
    Mr. Boozman. For the Country, not for New York but for the 
Country?
    Mr. Tierney. I believe for the Country. The Army Corps and 
the EPA regulations that were passed in 1975 were very broad, 
and those were enacted near the time when the Clean Water Act 
was first passed. That regulatory definition is very similar to 
what is in the draft of the bill right now.
    I just want to emphasize there is a practical hard-headed 
attribute to this, and it has to do with general permits. Army 
Corps, EPA, the State of New York, other States issue general 
permits for these nonsensical things like people say, well, 
puddles could be involved.
    The general permits basically could say those are excluded. 
Those aren't involved. We could define it in a way. Nobody is 
going to call a manure lagoon a water of the United States. I 
heard somebody say, well, could manure lagoons somehow end up 
being regulated?
    So the way that those issues, those sort of odd linguistic 
uncertainties that are involved in anything in the English 
language, could be handled is through these general permits or 
some clarifications that the Chairman has talked about today.
    Mr. Boozman. I guess, with all due respect, I mean that is 
your opinion, but the problem is the regulators that are going 
to enforce that, they don't agree with that opinion.
    Mr. Tierney. Here is the problem.
    Mr. Boozman. That is a major problem.
    Mr. Tierney. If I may, let me pose the problem back to you. 
If somebody right now dumps poison in a dry stream, a dry 
stream bed or in a wetland that is not connected, that won't 
flow into a stream for a week. A week later, it rains and it 
flows in. That is not regulated under the Clean Water Act under 
a definition which takes away these small headwater streams and 
wetlands from regulations. Now something else might cover it.
    So I would pose it to you, sir, as the problem on your side 
where at some point that would flow into a stream, whenever it 
becomes a stream and stops being a point source is a very 
serious problem that I don't think the people who are opposed 
to this bill have truly grappled with the implications of it.
    Mr. Boozman. Okay. So, pre-Rapanos, well, first of all, if 
there is a nexus and all that stuff, and basically there is, 
that is not necessarily true. You know the statement about 
dumping in.
    But, again, my concern is that we are hearing lots of 
arguments that there is expansion over the pre-Rapanos. I think 
if you read this literally, and we are talking about the 
legislation. We are talking about making this law. Then there 
is a fairly significant expansion.
    The other thing is the best evidence of this thing not 
clearing things up is the testimony that we are getting.
    So, again, I do appreciate your efforts, and I really 
appreciate the work that I saw going on in New York State. 
Thank you.
    Mr. Tierney. I thank you very much, sir. I guess I am going 
to have to run.
    Mr. Oberstar. Mr. Tierney, you have a train to catch.
    Mr. Tierney. Thank you.
    Mr. Oberstar. I just want to say your example was not 
theoretical. There was an actual case in California, a dry 
irrigation ditch in which a poisonous substance was dumped. It 
rained substantially a week later. The runoff killed 60,000 
fish.
    Thank you very much for your contribution.
    Mr. Salazar.
    Mr. Salazar. Thank you, Mr. Chairman.
    I wanted to especially thank Mr. Trout and Mr. Pifher for 
coming all the way from Colorado and being so patient. As you 
know, that is the way Congress works.
    I just have a question for Mr. Trout. I know that you 
testified that under Colorado water law the farmer basically 
takes possession of the water and it becomes a private property 
right until it is used and returned to the stream.
    With regard to the current legislation, and I know the 
Chairman has alluded to it, that prior converted cropland is 
excluded. Is that what you understand?
    Mr. Trout. Let me address that in two ways. First of all, 
to go back to the little discussion the Chairman and I had, he 
is correct that there are two exemptions in the current bill 
and in current law that address agriculture. One of them, and 
this is Section 6.1 of the bill, provides an exemption from 
Section 402 for agricultural return flows.
    Now, at least our understanding of return flows is what 
flows off the farm after the irrigation has occurred. It is not 
the water applied to the farm. That is a different thing. So 
there is an exemption for if a farmer irrigates, it flows into 
a stream, they do not need what we call an NPDES permit.
    The other exemption, which I think the Chairman was 
referring to is Section 3 or Subsection 6.3, which is an 
exemption under Section 404 of the Act for discharge of dredged 
and fill materials from normal farming, silviculture and 
ranching activities which we make great use of in Colorado.
    But my point is that if the definition is expanded 
sufficiently to cover what currently are not considered to be 
waters of the United States, such as wet meadows that are also 
irrigated, there is no current exemption under the Act for 
discharges under Section 402. There is an exemption for 
discharges under Section 404.
    So the application of a chemical to a wet meadow, which is 
also an irrigated field, would be regulated and would require a 
permit. We know that from the Talent litigation we had in 
California a number of years ago.
    Now, if the intention of the Committee is to really exempt 
all agricultural or silvicultural operations, what you would 
have to do is you would have to, in effect, add a Section 402 
exemption to what is now the 404 exemption. If you did, the 
concerns that I have expressed really would go away because 
then, I think, farming operations would have a complete 
exemption. Other people may have a problem with that.
    You mentioned prior converted cropland. As we know, the 
definition of prior converted cropland, at least in the USDA, 
the Department of Agriculture regulations, starts at the point 
that these are lands that were wetlands before. A lot of these 
lands I am talking about in Colorado were never wetlands before 
they were irrigated. Because they are irrigated, they may now 
be wetlands or at least a wet meadow.
    So having an exemption for simply prior converted croplands 
does not exempt all of the lands that I am talking about. It 
probably would exempt some. It might exempt your lands if they 
are right down on the river, but it wouldn't exempt people's 
lands who are up from the river and were not historically part 
of the flood plain but are still now a hay meadow.
    Did that answer your question? I am sorry I took so long.
    Mr. Salazar. Mr. Chairman, are you amenable to those types 
of amendments?
    Mr. Oberstar. The gentleman has described accurately to a 
point, but he does not reflect in his comment that there are 
situations in current law, in pre-Rapanos/SWANCC law, where 
there is not an exemption for pesticide application.
    My purpose is not to expand it to cover that nor to cover 
anything or exempt anything that is not already exempted.
    Mr. Trout. If I may respond, Mr. Chairman, you are 
absolutely correct which is a problem that we, my clients who 
run irrigation ditches have a real issue with in the sense that 
complying with that is difficult to control things.
    But my point is that if you expand the definition of what 
is a water of the United States to cover what are traditionally 
considered to be irrigated croplands, then you are triggering a 
discharge permit.
    Mr. Oberstar. But the law cannot be internally 
contradictory. If we exempt something and you think there is 
broader language that provides broader application, the broader 
application cannot override the very clear, specific exemption.
    Mr. Trout. Well, that is correct.
    I guess what I am suggesting is if you want to address the 
problems that other witnesses have described but still provide 
an exemption for agricultural activities and address these 
other issues by expanding the general definition of waters of 
the United States but still not put undue burdens on 
agriculture, you may have to extend the 402.
    Mr. Oberstar. You provide some language for us, at my 
invitation, that does this without curtailing the current Clean 
Water Act nor expanding its application.
    Mr. Trout. I certainly will try to do that. I will work 
with Congressman Salazar to do so. Thank you very much.
    Mr. Oberstar. Okay.
    Mr. Salazar. Thank you, Mr. Chairman. Could I just take a 
minute?
    Mr. Pifher, I know that we have talked a lot about the NEPA 
compliance concerns of new water projects. Can you expand on 
that a little bit?
    Also, I would like you to address the issue of interstate 
water compacts. Is there going to be any effect from this 
legislation as it currently stands on interstate water 
compacts?
    Mr. Pifher. Relative to NEPA compliance, Representative 
Salazar, a concern would be that if you have a project. As an 
example, Aurora is currently constructing a recycling-reuse 
project that has been widely praised including by the 
environmental community at a cost to its ratepayers of $750 
million, but it includes a 34-mile delivery pipeline to pipe 
back to the city, return flows that have gone through 
reclamation and treatment.
    In the permitting of that project, we redesigned the 
project time and time again to try to avoid crossing waters of 
the United States and wetlands, and we microtunneled to avoid 
waters of the United States and wetlands. But when all was said 
and done, there were four or five instances where we just 
couldn't avoid that without great expense and difficulty 
including crossing ditches, irrigation ditches. Therefore, we 
went to the Corps of Engineers and said, we would like a 
nationwide permit, but we do not want to trigger NEPA review.
    They said, well, in light of the fact it is a 34-mile 
pipeline, it is a long corridor, and you only have four or five 
small crossings, that will not trigger NEPA review. It won't 
federalize the project.
    But if you had to have a jurisdictional determination and 
there was a jurisdictional determination on numerous such 
crossings, the NEPA process would be triggered. You would wind 
up undoubtedly spending millions of additional dollars and two 
or three additional years going through that process in order 
to bring on that water delivery system which, in our case, was 
critical to get online because our storage after the 2002 
drought had dropped to 25 percent. It was a critical need.
    So that is an example under NEPA.
    As far as interstate compacts, that is a very difficult 
question. I guess one concern would be when you talk about the 
full reach of Congress under the Constitution and all 
activities that may affect waters. You could have situations 
where you have water bodies covered by interstate compacts like 
the Colorado or the Arkansas, for example, where the downstream 
State would look at activities in the upstream State that could 
cause some water quality degradation in the downstream State 
and therefore object to that activity.
    That could include water diversion activities in the 
upstream State that simply remove flow from the river and 
therefore deplete flows that the downstream State believes are 
necessary to support some of its designated beneficial uses 
like aquatic life. That would lead to interstate friction.
    So I don't think it is unresolvable, but it is something we 
need to think through.
    Mr. Salazar. Thank you, Mr. Chairman. I yield back.
    Mr. Oberstar. I appreciate the gentleman's comments and the 
responses.
    Mrs. Napolitano.
    Mrs. Napolitano. Mr. Chair, I think the questions that I 
have deal more with recycled water and drugs in water, 
pharmaceuticals in potable water, those kinds of areas.
    But I am very much interested in how some of those laws 
affect the State of California and the western States simply 
because there is going to be an increase in need of additional 
water, whether it is recycled, reused, farm water putting back 
to use, drainage ditch water. I think we are going to have to 
look for every puddle to be able to ensure that we do have 
water for the future, for economic reasons as well as for 
reasons of health.
    I am very much in tune with some of the issues you bring 
up, but in the end I think maybe we sometimes make a mountain 
out of a molehill in trying to add to an already existing 
issue. Sometimes I am finding out that the attorneys are the 
ones who benefit more out of the litigation--sorry, sir--than 
the benefit to the users and to the end result which would be 
the delivery of potable water to the people that need it, for 
agricultural uses also.
    So I would consider being able to understand what impacts 
or what loopholes or what language there would be that would 
tie some of this up that does not allow for the abuse in the 
future if this bill goes through with amendments that might 
necessary. So, if anybody has a comment to that, I would like 
to hear it, especially by the attorneys.
    Mr. Trout. As you can tell, my comments are aimed primarily 
at agricultural issues. Certainly, the people that I work with 
share your concern about pharmaceuticals in water. The big 
irrigation district that I work with is now discussing whether 
we would start testing for such things.
    I guess on a personal attorney's note, I would disagree 
with you about sort of characterization of the statute. The 
common joke among the people I work with, attorneys and 
scientists who work on this, is that if this bill passes it 
will put our kids through college because we think it will 
actually cause more controversy and more litigation as the 
Federal Government pushes the limits of the Congress' 
constitutional authority. That, I think we have seen from the 
Supreme Court's opinions.
    The Supreme Court didn't view it that way when it 
interpreted the statute. It viewed that it was interpreting the 
statute as written and didn't have to get to the constitutional 
issues. So, if we have to litigate on constitutional issues, it 
probably won't be me, but that is the view of it kind of in the 
trenches of the people who look at this.
    Mrs. Napolitano. How do we avoid that?
    Mr. Trout. I am not a Republican by the way. I would call 
myself a conservative Democrat, but I will give you my 
conservative response which is maybe wait a year or two and see 
how the current regulations work out. I mean we all agree, I 
think, that the Supreme Court did nobody favors in the Rapanos 
case. They really created the muddle, but that is not the first 
time the Supreme Court has done that.
    Give the Administration, the current one and perhaps the 
next one, some opportunities to try to work through that rather 
than create new legislation which really adds a full layer, 
again, of complexity on it. That is the view of a conservative 
lawyer.
    Mrs. Napolitano. But wouldn't it be also true that if this 
bill were to be enacted, that that might conceivably be then 
reinterpreted by the Supreme Court?
    Mr. Trout. Oh, I guess I have no doubt that if this bill 
was enacted the Supreme Court would read and then decide what 
is Congress' constitutional limit and assertable authority.
    Mrs. Napolitano. Wouldn't that then preclude some of the 
filings to be able to challenge it?
    Mr. Trout. Litigation is not that general. I guess I would 
put it that way.
    Mrs. Napolitano. That is being simplistic, I know.
    Mr. Trout. You are right. In 30, 40 years, probably you are 
correct.
    But, as you know, in our world, things get decided on a 
case by case basis. You get one decision like the SWANCC 
decision which was limited specifically to the Migratory Bird 
Rule. There are many other sources of Federal jurisdiction over 
waters. So you would have to have a series of decisions over 
time to build up a body of law.
    Mrs. Napolitano. Which brings me then to my statement 
originally which is how do we close those loopholes? How do we 
address the issues? I don't mean for every single one but to be 
able to have the intent of the law be actually carried as a 
protector of human beings and essential to agriculture and the 
economy.
    Mr. Trout. I will be honest. At this point, I don't have an 
answer for you. Sorry.
    Mrs. Napolitano. Thank you, Mr. Chair. I yield back.
    Mr. Oberstar. Ms. Hirono.
    Ms. Hirono. I just have a short comment.
    Mr. Trout, great name, by the way. You said that maybe what 
we should be doing is letting the guidance take place, and 
there have been some thousands of cases that have already gone 
through the process, I suppose, using that guidance.
    But my concern is that those provisions really flow from 
very confusing Supreme Court decisions. That is why I asked the 
first panel.
    I think it is up to Congress to try and lay out the law as 
clearly as possible, avoiding unintended consequences, because 
it is the privy of the courts to then interpret our statutes, 
not the other way around. And so, Congress often comes in, 
disagreeing with what the Court has done and provides the kind 
of clarity.
    So I am not so sure that what we should be doing is waiting 
a couple of years for guidance that really put in play court 
decisions that did not provide the kind of clarity that we 
want. I don't know that that is what we ought to be doing 
either.
    It is more a comment than a question.
    Mr. Trout. Okay. That is certainly your prerogative.
    Ms. Hirono. Thank you, Mr. Chairman.
    Mr. Oberstar. Mr. Carney.
    Mr. Carney. No questions at this time. Thank you, Mr. 
Chairman.
    Mr. Oberstar. I have a question for Ms. Card and 
appreciation for your testimony and for the strong position of 
your governor in a very lucid statement in support of the 
introduced bill.
    We have information from EPA that certain publicly-owned 
treatment works, POTWs, Section 402 agencies in Arizona are 
petitioning that they are no longer covered by the Clean Water 
Act, submitting statements to EPA saying they are no longer 
covered as a result of the Court cases.
    You said that Arizona is prohibited by State law from 
filling the gap left behind by pulling back on the law as a 
result of the Rapanos decision. How will Arizona then be able 
to address those facilities if the Clean Water Act doesn't 
cover, if the State Government can't do any better than current 
law and current law now has been downrated by the Court case?
    Ms. Card. Yes, Mr. Chairman, I am familiar with what you 
are referencing. As I said in my testimony, my agency would no 
longer be able to protect the stream for aquatic life uses, for 
agricultural irrigation, for livestock watering. With respect 
to some pollutants, livestock watering has more stringent 
health-based standards than drinking water does. So it would 
create a tremendous gap potentially for huge discharges of 
wastewater.
    Mr. Oberstar. And the State won't be able to protect its 
citizens as it has been doing up until now?
    Ms. Card. No under current State law, that is correct.
    Mr. Oberstar. That is a very serious gap.
    You have heard the discussion. You have sat here intently, 
listening all day about retaining the language in the Clean 
Water Act where it appears referencing navigable waters of the 
United States, retaining it but accompanying that, tying to 
it--I have said, riveting to it--the regulatory practices so 
that we spell out what has been in place prior to the two Court 
decisions to assure that there is clarity and continuity and no 
expansion nor retraction of the Clean Water Act.
    What would be your reaction to that?
    Ms. Card. Well, Mr. Chairman, I agree that some useful 
points have been made at this hearing which, of course, is the 
point of the hearing and the legislative process itself.
    With respect to the navigability test and the concerns I 
have raised in my statement about ephemeral and intermittent 
streams and headwaters streams protection, the navigability 
test is not helpful in Arizona. As I mentioned, 96 percent of 
our waters are nonperennial. According to the Corps, our only 
navigable water is the Colorado River, and our headwaters 
streams are in some cases 200 miles from the Colorado River.
    In the Rapanos case, Justice Kennedy wrestled with a 10-
mile difference between waters, and so the navigability test 
has not served us well or potentially will not serve us well 
under the Rapanos decision.
    The Clean Water Act, prior to the Rapanos decision, served 
us very well. We have a 1975 Arizona Federal District Court 
opinion in which the judge said, dry arroyos are tributaries of 
navigable waters, period, and discharges of toxic mine waste 
require permits under the Clean Water Act even if it is to a 
dry arroyo which, of course, is non-navigable.
    So, with respect to toxic discharges to dry streams in 
Arizona, that has been long settled and undisputed and 
noncontroversial. The problem with the Rapanos decision and 
guidance is it potentially turns that on its head.
    Mr. Oberstar. Can you craft language to establish or retain 
that pre-Rapanos authority for Arizona and similar States?
    Ms. Card. Well, again, if it is clear in the Act that 
intermittent and ephemeral and headwaters streams are 
protected, I think there is probably more than one way to do 
that in this legislation.
    Mr. Oberstar. Would you provide some language for the 
Committee?
    Ms. Card. I would be happy to wrestle with that.
    Mr. Oberstar. Thank you.
    Mr. Boozman.
    Mr. Boozman. Mr. Chairman, just for a second, if you don't 
mind.
    I was just curious, Ms. Card. Is that by State constitution 
that the law is such that it can't supersede the Clean Water 
Act?
    Ms. Card. Mr. Chairman and Congressman, no, that is State 
statute.
    Mr. Boozman. I guess the obvious question is why? Why don't 
you change the law?
    Ms. Card. Because I am not the Arizona Legislature, and I 
can't speak for them.
    Mr. Boozman. What is your opinion as to why they can't 
change the law?
    Ms. Card. Well, I don't think it has been presented to them 
yet, and I can certainly imagine the potential for me to be 
making this same plea at the Arizona Legislature.
    We think the problem is immediate. It needs to be addressed 
now, and that it is properly addressed by the Federal 
Government. Just because Arizona is an arid State doesn't mean 
we are deserving or in need of less protection from pollution 
than wet States.
    Mr. Boozman. Do you think your legislators would be upset 
if they had the possibility of all interstate and all 
intrastate and possibly groundwater being controlled?
    Ms. Card. Mr. Chairman and Congressman, again, I can't 
speak for them. I know that the bill has been controversial, 
and I am sure there are members of the Arizona Legislature who 
would be concerned.
    Mr. Boozman. Good. Thank you. Thank you for testimony. I 
thank all of you very much.
    Ms. Card. You are welcome.
    Mr. Oberstar. I want to thank this panel for their 
contributions, and I look forward to submissions as the Chair 
has requested. Thank you for being here with us for this very 
long day.
    Our next panel: Mr. Tim Recker, the Iowa Corn Growers; Mr. 
Carl Shaffer for the Pennsylvania Farm Bureau; Mr. Harold Quinn 
for the National Mining Association; Mr. Darrell Gerber, the 
Clean Water Action Alliance of Minnesota; and Ms. Linda Runbeck 
for the American Property Coalition in Minnesota.
    To this panel, again, my apologies that the interventions 
of the votes this afternoon have stretched out the hearing 
time. But, as you can tell and you have sat here very 
patiently, listening, you are the best informed panelists. You 
have heard everything, and you have seen this is a very 
intensely debated subject with very strong feelings.
    It has been a productive day, and you are adding to it. We 
look forward to hearing from you.
    Mr. Recker.

   TESTIMONY OF TIM RECKER, IOWA CORN GROWERS; CARL SHAFFER, 
   PRESIDENT PENNSYLVANIA FARM BUREAU; HAROLD P. QUINN, JR., 
 SENIOR VICE PRESIDENT, LEGAL AND REGULATORY AFFAIRS, NATIONAL 
MINING ASSOCIATION; DARRELL GERBER, CLEAN WATER ACTION ALLIANCE 
 OF MINNESOTA; AND LINDA RUNBECK, AMERICAN PROPERTY COALITION.

    Mr. Recker. Thank you, Mr. Chairman, and it has been a 
productive day for an Iowa farm boy to come and listen to this 
kind of good discussion on water quality. It has been 
informative.
    Mr. Chairman and Members of the Committee, thank you for 
the opportunity to testify today on the legislative hearing of 
the H.R. 2421, the Clean Water Restoration Act. I ask that my 
statement be recorded for the hearing.
    Mr. Oberstar. All statements will be included in full in 
the record.
    Mr. Recker. Thank you.
    My name is Tim Recker. I am President of the Iowa Corn 
Growers. I am from Arlington, Iowa, where I grow corn and 
soybeans. I operate a wean to finish livestock operation.
    In addition to farming with my brother, I actually own an 
excavating business and do farm drainage, and it is quite the 
contrary of all the talk we have had here today about 
irrigating. We actually, in Iowa, have to drain the excess 
water out. So I would love to build that pipeline to the people 
who need that water and put a meter on it.
    Before addressing the issue at hand, though, I would like 
to first sincerely thank the Committee for the hard work and 
devotion to the completion of the Water Resources Development 
Act, WRDA. WRDA 2007 authorizes critical projects and inland 
waterways including the modernization of seven locks along the 
upper Mississippi River, which I am very close to, and the 
Illinois River, a project that will dramatically the ability to 
deliver crops to the global marketplace.
    Last year marked the largest corn crop in history. However, 
it is not just about growing more corn. It is about how we grow 
it. On our farm, we are always looking at problems and trying 
to find out new ways to address soil quality, cleaner water, 
improvement in production and profitability. We are farming 
sustainability.
    All across the Country, corn farmers are involved in 
numerous State, local and national programs, programs that 
complement the goals of the Clean Water Act by protecting 
environmentally sensitive land from crop production and 
encouraging other on-farm conservation methods.
    For example, the Farm Bill conservation program has 
recognized unique abilities and the limitations of farmers. As 
a result, we are making important environmental gains using 
voluntary and, I will stress, locally led incentive-based 
programs to reduce soil erosion, improve water quality and 
increase wildlife habitat.
    Corn growers believe that H.R. 2421 would fundamentally 
alter the longstanding appropriate and beneficial use of the 
term, navigable. This proposed legislation expands the 
regulatory authority of the U.S. Environmental Protection 
Agency, the U.S. Corps of Engineers in all interstate waters, 
essentially all wet areas within the State including 
impoundments, groundwater, ditches, pipes, streets, gutters and 
so on.
    Additionally, it grants EPA and the Corps authority to 
regulate virtually all activities, private and public, that may 
affect the waters of the United States, regardless of whether 
that activity is occurring in or what it may impact the water 
at all.
    Likewise, 2421 would create significant new administrative 
responsibilities without fully analyzing the implementation of 
funding of such requirements.
    The backlog permits has been estimated between fifteen and 
twenty thousand with a time lapse of several years. So I ask 
the Committee, how would they address the needs of a regulated 
community when the already significant delays of today turn 
into massive delays of tomorrow?
    We are concerned that H.R. 2421 would eliminate the 
existing regulatory limitations authorized by both Democrat and 
Republican administrations, allowing common sense uses such as 
prior converted cropland and waste treatment systems. 
Furthermore, the savings clause does not exempt anything from 
the broad definition of waters of the United States nor does it 
capture exemptions found in statutory definitions such as 
agriculture stormwater exemption.
    Not all agricultural activities enjoy the benefit of an 
explicit statutory exemption. For example, pesticide use is not 
covered by the explicit statutory exemption. This extremely 
important agriculture production activity can involve the 
deposit or unintended drift of pesticides into areas deemed to 
be waters of the United States.
    Similarly, the application of fertilizer and other vital 
farming activities may incidentally add material to the waters 
of the United States and are not exempted by statute or 
addressed in the savings clause.
    Despite our opposition to 2421, we do agree that regulatory 
clarity must be achieved. The Supreme Court recommended that 
regulatory action consistent with its decision in Rapanos be 
conducted. While Congress can always change laws, we note that 
the Supreme Court did not cite in Rapanos a need for new 
legislative meaning being given to the Clean Water Act 
jurisdictional waters in order for such regulatory action to be 
successful.
    In our view, the job of Congress should now be to force the 
Corps and EPA to follow through on the Supreme Court 
recommendations to conduct a formal rulemaking, allowing all 
affected parties to contribute to the process which would have 
a goal of establishing clear Federal jurisdiction under the 
Clean Water Act.
    In conclusion, corn growers urge you to recognize the 
significant problems that H.R. 2421 would create if enacted and 
thoroughly analyze and discuss the consequences of this 
legislation before moving forward. As it is currently written, 
we have no choice but to oppose H.R. 2421.
    Mr. Chairman, Members, thank you for the opportunity to 
testify at this late time.
    Mr. Oberstar. Thank you, Mr. Recker.
    This is not really late for this Committee. We go much 
later.
    Mr. Shaffer.
    Mr. Shaffer. Thank you, Mr. Chairman.
    Mr. Chairman and Members of the Committee, my name is Carl 
Shaffer. I own a farm in Columbia County, Pennsylvania, where I 
raise green beans, corn and wheat.
    As President of the Pennsylvania Farm Bureau and a member 
of the American Farm Bureau Federation Board of Directors, I am 
pleased to offer this testimony on behalf of over 42,000 rural 
and farm family members of the Pennsylvania Farm Bureau. The 
policy positions I will discuss and those included in my 
written testimony are shared by more than six million members 
of the American Farm Bureau Federation.
    Mr. Chairman, farmers are no nonsense folks who understand 
that words matter. It is clear to us that Congress intended to 
use the term, navigable waters, when it passed the Clean Water 
Act in 1972.
    The bill we are discussing today deletes the term, 
navigable waters, and deleting this term expands--it does not 
restore--the scope of Federal regulation. This bill would sweep 
many agricultural activities into the scope of Federal 
regulation simply because these activities would occur near 
some isolated ditch that would be deemed at water of the United 
States. Furthermore, prior converted croplands would be 
classified as Federally-regulated wetlands.
    If that is the case, I would be required to get a Federal 
permit to grow crops on land that I have been farming for three 
decades. Surely, there are more productive ways to spend 
America's tax dollars.
    Pennsylvania has more than 83,000 miles of rivers and 
streams, most of which are State waters. This legislation would 
require a substantial increase in funding for the Corps of 
Engineers. This bill is a call for bigger government.
    How, under the current budget deficit, does Congress intend 
to pay for additional regulatory enforcement or will more 
unfunded mandates be passed on to local municipalities to 
monitor and regulate Federal waters?
    In Pennsylvania, stream health and aquatic rebirth are 
improving each year. One of our largest dairy farms in the 
State is a favorite trout fishing location of former President 
Jimmy Carter. Spruce Creek, with its high quality cold water 
fishery designation is an example of the environmental 
stewardship and success already in place through agricultural 
practices.
    Next week, 16 Pennsylvania streams in 11 different counties 
will be adopted as wilderness trout streams. Wild trout are an 
excellent indicator of water quality and stream health.
    In the 1980s, Pennsylvania gained more than 4,600 acres of 
wetlands within the Chesapeake Bay Watershed. The State's 
Department of Environmental Protection showed an increase of 
2,500 acres of wetlands from 2000 to 2006. Today, more than 
400,000 acres of wetlands are found through the Commonwealth.
    Each year, the Keystone State has seen an increase in 
voluntary nutrient management planning from fewer than 2,000 
acres in the early 1990s to 1.3 million acres today. Farmers 
are already good stewards of the land and the water without a 
Federal mandate.
    Moreover Pennsylvania's State Conservation Commission 
implemented the dirt and gravel road program to reduce erosion 
and sediment pollution. The program is based on the principle 
that an informed and empowered local effort is the most 
effective way to curb pollution. This effort stabilized more 
than 1 quarter of a million square feet of streams at more than 
1,500 sites across the Commonwealth since 1997.
    Federal jurisdiction over these small streams would only 
complicate an already successful program. Pennsylvania 
successfully monitors and regulates water quality through more 
than a dozen laws, regulations and initiatives, some of which 
are outlined in my written testimony.
    In December of 2007, I co-wrote an editorial with Secretary 
Kathleen McGinty of the Pennsylvania Department of 
Environmental Protection, discussing State regulatory 
requirements that are effective for our unique geographic 
location. Imposing a one size fits all regulation over 50 
States will nullify or complicate productive State efforts like 
the in Pennsylvania.
    In January, DEP Deputy Secretary Cathleen Myers noted, 
``Pennsylvania's Chesapeake Bay Compliance Plan requires 25 
million pounds of nutrient reduction from our farmlands, nearly 
5 times the reduction required of our sewage treatment plants. 
Pennsylvania farmers are rising to the challenge, laying claim 
to more than half of all the nitrogen reductions made by 
farmers in the multistate watershed.''
    Farmers and ranchers across the Country are already working 
with State officials to meet water quality requirements. Adding 
the Corp of Engineers or the EPA to the existing regulatory 
equation is simply not an option. For these reasons, we oppose 
H.R. 2421 and urge that it not be approved by the Committee.
    We very much appreciate your interest on this issue and the 
opportunity to submit this testimony. Thank you very much.
    Mr. Oberstar. Thank you very much for your presentation.
    Did you say that Pennsylvania farmers are accounting for 
half of the 25 million pound reduction in nutrients?
    Mr. Shaffer. In the Chesapeake Bay Watershed.
    Mr. Oberstar. Pennsylvania farmers alone are accounting for 
that?
    Mr. Shaffer. Yes, yes, of the multistate watershed.
    Mr. Oberstar. That is an enormous contribution.
    Mr. Shaffer. And it has been done, I am proud to say, 
through a lot of voluntary programs that we have actually 
implemented and started on our own in Pennsylvania as farmers 
of the State, the Keystone State.
    Mr. Oberstar. Much of the problem, more than 70 percent of 
the problem in the Chesapeake Bay is upland runoff in Maryland, 
Delaware, West Virginia and Pennsylvania. If you have made that 
contribution, that is very, very significant. Compliments.
    I also thank you for the testimony from the Farm Bureau.
    Last year, I invited the Farm Bureau to testify at our 
hearings, and the president chose not to. I invited your 
national legislative director; he chose not to testify. 
Happily, Kevin Papp, President of our Minnesota Farm Bureau did 
testify.
    I will have some follow-up questions for you later.
    Mr. Shaffer. Thank you.
    Mr. Oberstar. Thank you.
    Mr. Quinn.
    Mr. Quinn. Thank you, Mr. Chairman, Members of the 
Committee. We appreciate the invitation to be here and share 
our views on the legislation.
    My name is Hal Quinn, and I am appearing on behalf of the 
National Mining Association.
    I know it has been a long day for all of you, and you have 
already heard ample testimony on the question of whether this 
legislation.
    Mr. Oberstar. We haven't heard everything, though.
    Mr. Quinn. On the question of whether it changes or 
restores the original intent or changes the intent, I don't 
believe I am going to add to that well today. We will stand on 
our written submission on that question, which we would agree 
with the viewpoints of those who expressed earlier that we 
believe it would change the intent that we see from at least 
the text and the structure of the statute.
    But I think what we heard earlier today is that clearly the 
legislation, if enacted, would change the status quo as we know 
it at this moment. In that regard, I just wanted to address two 
concerns.
    First, if it does change the status quo as we know it 
today, what will the effect be on existing businesses and 
landowners who have made investments, planned activities and 
taken action on those activities under a different 
understanding of the law than might appear in this legislation 
if enacted?
    Will those investments be protected? Will they be 
grandfathered? How will those situations be accommodated and 
can they be accommodated under the law?
    Second and probably more important to us today is if it 
does change the status quo, we will certainly see greater 
pressures placed on the existing permitting infrastructure 
under the Clean Water Act program. In that regard, we have 
already seen an overburdened system that, because of delays in 
terms of obtaining reasonable decisions in reasonable 
timeframes, erodes confidence in the process and is simply 
unresponsive to the demands placed on the program.
    The permitting system is expensive and is protracted. In 
terms of expense, the expense is not that simply in terms of 
gathering the data and submitting an application. Also the more 
significant cost, particularly to capital-intensive industries 
like the ones I represent, comes from the delays in obtaining 
permissions and authorizations to proceed.
    For every delay in receiving those authorizations or 
permits, we lose net present value in our investment because 
our return on that capital is deferred, our employees are idled 
and, at that point in time, we have to reconsider. Both 
investors and others have to reconsider where they deploy their 
risk capital in terms of not only this Country but in other 
countries as well if they present a lower regulatory risk.
    Now assuring a responsive permitting system requires 
substantial investment of public resources just to meet the 
current demands on that process, let alone ones that might be 
increased or engendered by changes in the law. In addition to 
providing more resources, we think that system, the permitting 
system can be improved and become more efficient by identifying 
and seizing upon opportunities for permitting efficiencies.
    One of the goals of the Clean Water Act that is often 
overlooked is to prevent needless duplication and unnecessary 
delays. We believe there are opportunities that exist where 
there are other overarching environmental laws and regulatory 
programs that already require certain industries or businesses 
to examine and address the effect of their activities on water 
resources.
    We have provided as part of our testimony at least two 
examples of where we think this duplication exists, and as a 
consequence there are opportunities to coordinate those 
particular programs better so that we can avoid needless delay 
and duplication of trying to protect the same resource by 
collecting data, the same data different ways but really for 
the same purpose.
    I bring with me today, and I apologize for the size of the 
exhibit, Mr. Chairman, but this is a photograph of a permit 
application put together three years ago for a coal mine in 
Congressman Rahall's district. This is a combination of what we 
call our SMCRA, surface mining and reclamation, permit that has 
extensive data and analysis on the impact of our operations on 
both surface and groundwater in the surrounding watershed as 
well as the Clean Water Act 402 permit and the Section 404 
permit and the State 401 water quality certification.
    I can assure you there are a number of items within these 
binders and data that are duplicative. Perhaps if these 
programs are coordinated, we could be relying on certain data 
and certain decisions made by certain regulators for the 
purposes of making decisions under other programs.
    As you can see from the size of this, just moving these 
permits around is an occupation hazard in itself, but this is 
just to point out that we think there are opportunities to make 
the process more responsive to the regulated, not maybe in all 
cases but in certain cases.
    Let me just conclude with the observation, we know that 
this legislation is motivated by the desire to restore and 
maintain the integrity of the waters of our Nation, and we 
share that goal. We just question whether before we proceed to 
expand the law's reach, whether greater attention ought to be 
brought first, and the greatest threat to that goal might be a 
nonresponsive and inflexible permitting system that is 
incapable of bringing reasonable decisions in reasonable 
timeframes to the people who are subjected to the law.
    I thank you again for your attention to this matter at this 
late hour.
    Mr. Oberstar. Thank you very much, Mr. Quinn. I appreciate 
that graphic you presented. I will come back to that in a 
moment after the other testimony.
    Mr. Gerber.
    Mr. Gerber. Thank you, Chairman Oberstar and Members of the 
Committee for inviting me to testify before you today and also 
for sticking around so long and bearing with us all.
    My name is Darrel Gerber. I am the Program Coordinator for 
Clean Water Action Alliance out of the Minneapolis, Minnesota 
office. We are the largest membership-based environmental 
organization in the State. We are also a part of Clean Water 
Action, a national organization with over a million members.
    Our primary mission is to ensure that we have clean and 
safe water now and into generations to come. We do this by 
organizing. Whether it is people at the grassroots level, 
coalitions or broader campaigns, we organize to protect 
people's environment, health, economic well-being and community 
quality of life.
    The Clean Water Restoration Act has been a priority issue 
for Clean Water Action's grassroots policy and mobilization 
campaign since it was first introduced. Since then, our members 
have sent hundreds of thousands of communications to Congress, 
asking or actually urging for passage of the Clean Water 
Restoration Act. In our work with over a million members in 
more than 20 States, people tell us that passing the Clean 
Water Restoration Act is the right thing to do.
    Today's hearing is a critical junction for the Clean Water 
Act. The important question before you today is do we want to 
throw out 35 years worth of progress in cleaning up our waters 
or do we want to continue working to make our waters fishable, 
swimmable and drinkable?
    The people we talk to across the County and even those in 
independent polls resoundingly state the cleanup must move 
forward.
    Unfortunately, through the actions of the Supreme Court, 
the EPA and the Corps, we are moving backwards. Fifty-nine 
percent of the waters nationally are at risk of losing 
protection under the Clean Water Act. EPA's own estimates show 
that drinking water sources for over 110 million people are at 
risk to pollution due to the reduction in waters covered by the 
Clean Water Act.
    Protections for our waters are being eroded by Federal 
policies put in place since 2003 in response to several Supreme 
Court decisions. The Supreme Court in SWANCC and Rapanos 
misread the law and congressional intent as to what waters 
should be protected. This, coupled with the lack of clear 
consensus offered by the split Rapanos decision, a decision in 
which there was no majority opinion on waters covered and, even 
worse, where the opinion of a single justice with no other 
concurring justices has often been interpreted to carry the 
day.
    Besides that, the test that Justice Kennedy created, the 
significant nexus test, offers no clarity as to what waters the 
Clean Water Act covers.
    Recent EPA and Corps policies and guidance have created an 
even further fog of confusion and have gone beyond what the 
Supreme Court ruled in order to restrict even further the Clean 
Water Act coverage. An example of this fog of confusion is a 
lake in western Minnesota. There, the confusion over what the 
Clean Water Act protects led to an obviously incorrect 
determination by field Corps staff.
    If you go about 35 miles east of Fargo, North Dakota, which 
is on the western border of Minnesota, along Highway 10 you get 
to Boyer Lake. This is a 310-acre lake, has a public boat ramp 
on the north side and is a popular fishing lake where you can 
get bass, bluegill, northern pike and walleye. The Minnesota 
DNR periodically stocks the lake with hundreds of thousands of 
walleye, yet this lake was found to not fall under the scope of 
the Clean Water Act.
    Quick actions fortunately led to a reversal of this 
decision, but the fact that it occurred at all indicates that 
there are clearly problems on the ground trying to determine 
what the new EPA and Corps policies mean. The reversal is good 
news for Boyer Lake, but at the same time the Corps is still 
trying to determine if the Clean Water Act programs apply to 
Bah Lakes, a similar lake only 85 miles away.
    We have already heard about the impacts of flooding around 
other parts of the Country, and Minnesota of course is no 
stranger. Whether tragic like those in the southeastern part of 
the State last fall or not, they generally prove to be 
devastating to those who live, work or own property nearby.
    There were also other severe droughts across the Country 
last year. Lake Lanier in Georgia dropped to astonishingly low 
levels. Lake Superior, up by us, was lower than it has been 
seen forever. Parts of the West have also experienced extended 
multiyear droughts.
    What we are learning about the impacts of global warming is 
that we can expect this to occur even more. Global warming 
changes our water cycles which will contribute to more intense 
and heavy rainfalls and deeper droughts. We also know that many 
of the hydrological features now excluded or threatened to be 
excluded from protection are the very same natural features 
most necessary to lessen the impacts from this flooding and 
drought.
    Clean Water Action members know that restoring protection 
for all of our waters is important and look to Congress to take 
action by passing the Clean Water Restoration Act. Now, more 
than ever, we need Federal water protections that meet the 
original goals of the Clean Water Act to ensure that our water 
is fishable, swimmable and drinkable.
    Thirty years from now, we want to be able to look back on 
this day and this time and be able to say Congress stopped the 
erosion of clean water protections and got back to the 
important business of restoring and maintaining clean water for 
all.
    Mr. Oberstar. Thank you, Mr. Gerber. We greatly appreciate 
your testimony.
    Ms. Runbeck, thank you for your patience throughout this 
long day.
    Ms. Runbeck. Well, thank you, Mr. Chairman, for the 
invitation and the opportunity to present on the Clean Water 
Restoration Act. I certainly admire your stamina. You have 
undertaken many, many complex issues in this current session 
and are doing a wonderful job.
    But, yes, my name is Linda Runbeck, and I am with the 
American Property Coalition. I am also a former State Senator 
from Minnesota.
    For the benefit of those who don't know some of our 
activities, we have been out doing workshops and town hall 
meetings about the Clean Water Restoration Act and informing 
people about what it proposes to do, and so I am here to 
express really the concerns of sort of average middle Americans 
about this bill.
    These are the people that have most of their net worth tied 
up in lakes and lots and land and homes and acres, and so they 
do fear that this bill is a direct threat to them. I have to 
agree. I believe that it is.
    Certainly, they will pay and pay dearly. They are going to 
pay in lost values. They are going to pay in lost production 
capacity. They are going to pay in excessive legal fees to 
protect their right to use their land as they see fit.
    Keep in mind, these are not people that have staffs of 
lawyers, for the most part. They don't comb through the specs 
and the regs. So these are people like most of us.
    I encourage you, as you put this legislation together, to 
please consider average Americans and to take a look at how 
this will affect them. Perhaps it is time to put a few words 
pertaining to education, pertaining to training and technical 
assistance. I think certainly after all these years of the 
Clean Water Act, it is time to take a little friendlier 
attitude towards the people that it regulates, especially now 
if it is going to be far more expanded and the regulators as 
well.
    But I do believe the bill has morphed into a national land 
use control act, and that is certainly a result of the words, 
activities affecting these waters. Everything and every body 
exists in a watershed, and therefore there isn't much that 
escapes this law. It certainly does expand government's reach 
far beyond the physical boundaries of water bodies and buffers.
    I think it is important to realize that an activity does 
not have to take place in water in order for it to be 
regulated. I think it is also important to think about the fact 
that waters can be affected directly or indirectly. I don't 
know that those words have been talked about too much, but 
certainly then an activity that takes place on a hilltop or a 
mountaintop 25 miles from a water could very much be under 
regulation, and the Federal Government would and could stop 
those activities. So I think there are very real concerns.
    We did provide a map, and I guess those are on the 
overheads, just to show sort of illustratively the difference 
between the existing law and H.R. 2421. As you can see, H.R. 
2421 becomes virtual, total control by the Federal Government, 
and that has been pretty well covered today, I would say.
    We have heard a lot about the confusion in the law, and I 
would just add that certainly what it means for those, again, 
who are regulated is that the line, the certainty that they are 
hoping for in the statute is absent. I think what a vague law 
means, and hopefully Congress will not pass such a law, is that 
the litigators representing various special interests are going 
to use their citizen lawsuit opportunity and forcibly expand 
and broaden the scope of the Act.
    So there is too much that can happen after it leaves your 
hands, and we would urge you not to allow that to be.
    Just a real quick point on how I think the bill destroys 
incentives for those people who love habitat and have wanted to 
create wetlands. We have a lot of those folks in Minnesota. I 
think what we will find and we are finding, in fact, is that 
activity is fraught now with catch-22s and enormous costs that 
pretty much then discourage anybody from thinking about 
creating a wetland habitat.
    We have seen polls over the last few months that show that 
there is very little public support for expanding the Federal 
Government's control over land and waters, and I will just cite 
the National Center for Public Policy Research, a very nice 
piece of polling. They gave very explicit descriptions of the 
pros and the cons, and yet 54 percent of Americans, we could 
say if we extrapolate, said that they would oppose this bill.
    You look regionally and find out that in New England, 58 
percent oppose it; in the Farm Belt, 59 percent oppose it; in 
the mountain States, 62 percent would oppose it.
    I think the poll is one thing, but I think most people do 
not realize that the Federal Government is actually considering 
regulating nearly dry land, and this is an example. This is 
from Kanabec County in Minnesota, and this is a wetland. This 
gentleman is spending $160,000 to date to do some. He wants to 
put an RV site on his wetland, and so far he has no decisions 
made. So there is an endless bureaucratic morass that exists 
even now.
    The American public probably does not understand that this 
is what is to be regulated, virtually, except for a couple 
days, a couple weeks of the year, dry land.
    One more point that I will quickly make is that we are 
getting assurance that there are clauses that are going to 
protect the exemptions in ag as well as silviculture. In 
Minnesota, I just want you to know that now an NRCS permit must 
be also accompanied by a WCA permit. That is Minnesota's 
Wetlands Conservation Act.
    You have situations where the NRCS permit is approved, but 
the WCA permit is denied. So the State law is overriding some 
of those exemptions.
    Finally, Mr. Chairman, I would urge you to develop a 
bipartisan solution. I know in Minnesota when parties, 
differing parties, reach log jams, good folks like Senator Doug 
Johnson would say: Get together. Don't come to us until you 
have a bill you all agree on because we are not going to waste 
our time on these kinds of very partisan differences. Work them 
out yourselves.
    So I would urge you to get the parties together, come up 
with some resolutions similar to what we have talked about 
today, and please don't forget that I think now, 35 years after 
the Clean Water Act, people have become such advocates and fans 
of wetlands, of clean water, of local initiatives, of putting 
in vegetation on their shorelines to prevent fertilizers and so 
on from entering land. These are community projects now. The 
voluntary efforts talked about here are everywhere.
    I don't think we really need the command and control system 
that this bill continues to use and probably should not, given 
the much smaller areas now that would come under this scope, 
smaller areas of impact and land and water bodies.
    Thank you very much, Mr. Chairman.
    Mr. Oberstar. Thank you for your contribution, for your 
comments. I can just about picture where that photo was taken.
    Ms. Runbeck. I am certain you can.
    Mr. Oberstar. Mr. Boozman had a pressing commitment to 
make, and he has been very patient. I want to recognize the 
gentleman.
    Mr. Boozman. Well, thank you very much, Mr. Chairman. I 
have about 25 people that journeyed from Arkansas to see the 
pope.
    Mr. Oberstar. There are going to get you instead.
    Mr. Boozman. Yes. I told them that I would meet them at 
6:30, and they are about worn out. So, anyway, I have another 
event I have to run too, but I want to thank all of you for 
your testimony.
    I also want to thank you, Mr. Chairman and Mr. Mica. The 
hearing today has been very, very good. We have had a broad, 
very diverse group of people testifying from all walks that 
represent this and truly from just all kinds of viewpoints 
which is very, very valuable. So I really do appreciate it. It 
has been very, very helpful to me.
    I really appreciate you, especially. I am leaving now. I 
appreciate your hanging in and being so patient, but it really 
is important that you are up here. So, thank you very much for 
making the trip.
    Mr. Oberstar. Thank you, Mr. Boozman, for your 
participation throughout the day and for your diligent 
attention to the specifics and the testimony of all the 
witnesses.
    Mr. Salazar.
    Mr. Salazar. Mr. Chairman, I have to reiterate what Mr. 
Boozman said. I am amazed at your stability and strength. I 
think you are the only Member of Congress that can run 12 or 
14-hour Committee hearings, but we applaud you for that, sir. 
It must be your biking.
    Let me just tell you, Ms. Runbeck, I just notice a comment 
that you made about making this a bipartisan bill. I can assure 
that water is not a partisan issue.
    Mr. Recker, Mr. Shaffer, Mr. Quinn, I sympathize with 
exactly where you are coming from. I am a farmer, and I also 
have the same concerns, but I also have to applaud the Chairman 
who has actually given us this opportunity to be able to 
discuss something.
    I would urge all of us, instead of just saying no, to just 
say how can we work together to make this better for all 
Americans?
    This issue is an issue of jurisdiction, I believe. It is an 
issue of the expansion of the current law. Some believe it is 
not; some believe it is. And so, what I would urge you to do is 
to submit your comments as to how we can make this an issue 
that we can all digest.
    I share, Mr. Shaffer, the same issue as you do. I farm 
3,000 acres back in Colorado. I have never had to request a 404 
permit or anything like that to irrigate my meadows.
    But, please, this is what I ask. Let's work in a 
cooperative manner. This isn't a partisan issue. Everyone 
drinks water, Democrats and Republicans alike, and we all want 
clean water.
    I think I agree with you, farmers are the best stewards of 
the land in my opinion, but let's try to figure out how we can 
work in a bipartisan way.
    So, thank you, Mr. Chairman, and I applaud you once again. 
Thank you so much for allowing us to have this hearing. I know 
that in December you had some concerns about it, and you were 
gracious enough to open this up to not only the proponents but 
the opponents of the current legislation.
    Thank you so much.
    Mr. Oberstar. I appreciate that very, very much. I would 
say we would have had the hearing sooner, earlier in the year, 
had I not had to have a hip replacement.
    I think the program has the same kind of congestion in it 
that my hip, my former hip had, a lot of old growth of 
arthritis. It has been removed and a new part, a 40-year part 
installed. I have done 92 miles on my bicycle since then, and I 
am going to keep on going.
    I am refreshed and renewed and ready for the rest of this 
and the coming session.
    Mr. Salazar. A 24-hour hearing?
    Mr. Oberstar. No, no, no, not 24-hour hearings. No. The 
latest on record was the hearing I held several years ago on 
smoking aboard aircraft. We started at 11:30 and went until 
midnight. The longest total hours was our Deepwater hearing 
last year where we found the misdeeds of the Coast Guard and 
corrected those.
    Mrs. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chair.
    I have a couple of questions, and I am not sure whether I 
should defer them because I agree with my colleague, Mr. 
Salazar. I wasn't here for the early part of your session, but 
I have been at your sessions where they go for a few hours, and 
I can tell you that it brings out a lot of information that I 
need to be able to continue working with my colleagues and, of 
course, with my district.
    I know that he has held numerous workshops with us, asking 
us to go back to our districts and get input and bring it back 
so that it can be a better bill. So I applaud him because very 
few Chairs that I know actually continue to seek information 
and to get that input so that becomes a bill that is palatable, 
that is workable and that is beneficial to all.
    Mr. Chair, I thank you for that.
    Now for the question: Mr. Recker, in your testimony, you 
refer to Congress' clear intent in its use of the term, 
navigable, in statute. In your opinion, what is your 
interpretation of what Congress' intent is in using the phrase, 
waters of the United States?
    I had a problem with that too in the beginning? In the 
statute, Section 502.7 is specifically there defining the 
phrase, navigable waters to be waters of the United States.
    Mr. Recker. I look at it as making a determination between 
navigable and all waters of the United States. That is how I 
interpret it.
    Waters of the United States is waters of the United States. 
Navigable waters are specific, and I interpret the other as all 
waters.
    Mrs. Napolitano. Okay, because in going back with some of 
my water people--as I call my sanitation districts, the water 
basins--especially sanitation had an issue with and some of the 
cities with the possible interpretation and possible litigation 
necessary to be able to defend some of what might be construed 
as a violation of those waters in terms of pollution, if you 
will.
    Mr. Shaffer, while Pennsylvania may have the ability to 
protect its own waters, does it have the ability to promote 
water quality protections in the other States such as Ohio, New 
York, Delaware, New Jersey, West Virginia or Maryland?
    In addition, Ohio and West Virginia are no more stringent 
States. If they have lower water quality standards than 
Pennsylvania and some of the waters come into your State, what 
implications for Pennsylvania water quality would you face and 
what could Pennsylvania do about it?
    Mr. Shaffer. Well, we have a pretty good working 
relationship. For instance, we have what is known as the 
Susquehanna River Basin Commission which includes New York and 
goes right on down to the Chesapeake Bay. So that is a 
commission that constantly works with all the partners, all the 
States, in trying to work together and to develop water quality 
issues. That would be one example I would give you.
    Then in the western part of our State, the Allegheny River 
Basin, there is also a commission down there where it has to do 
because in Pittsburgh, the three rivers all come together. So 
it is----
    Mrs. Napolitano. A working relationship?
    Mr. Shaffer. A working relationship, yes.
    Mrs. Napolitano. So there is no issue there for being able 
to have some kind of implication?
    Mr. Shaffer. We, I say farmers and agriculture, have a 
voice on the Susquehanna River Basin Commission. They reach out 
to us, so we can discuss our issues simply like I came here 
tonight to explain from my point of view as a farmer how this 
would affect different things.
    Therefore, in the Susquehanna River Basin Commission, for 
example, we are able to have our input, so we can work out for 
the best quality solution for everybody.
    Mrs. Napolitano. Thank you, sir, and thank you all for your 
patience.
    Thank you, Mr. Chair.
    Mr. Oberstar. Thank you, Mrs. Napolitano.
    Mr. Carney.
    Mr. Carney. Thank you, Mr. Chairman. Once again, I stand in 
awe of your ability to last through these things. I remember 
the FAA hearing we had a couple weeks ago, pretty remarkable. I 
truly believe you will probably have to get your 40-year hip 
replaced again.
    My questions are for Mr. Recker and Mr. Shaffer primarily.
    First of all, Mr. Recker, how far are you from Backbone 
State Park?
    Mr. Recker. I went to Starmont School. I graduated from 
Starmont. So it is part of the school district, and I know it 
well.
    Mr. Carney. I graduated from North Lynn. I played football 
at Starmont a lot.
    Mr. Recker. Great, and I played against you.
    Mr. Carney. Yes, I know. So, here it goes, buddy.
    [Laughter.]
    Mr. Carney. This is for both Mr. Shaffer and Mr. Recker. 
What kind of relationships do you have with your State's 
environmental regulatory agencies? Are they good ones, bad 
ones?
    Mr. Recker, first.
    Mr. Recker. Yes. I work with four watersheds that have kind 
of a new concept, and it is taking ownership of that watershed 
and empowering the farmer because we think that the landowner 
or stakeholder knows exactly what should be done with the help 
of county commissioners, with DNR and with Federal help with 
technical assistance. So we bring them, all the stakeholders, 
together.
    The amazing thing is when we draw the line around the map 
and we tell that farmer, you are part of that watershed, the 
Maquoketa Watershed, farmers that have been farming for 50 
years didn't realize what the name of their watershed is. Once 
they know they are part of a group and they actually can do 
something collectively, it is amazing what takes place.
    The first question they want to ask is, what is the 
impairment and how do we fix it? That is their attitude.
    So, yes, in Iowa, we work very closely, and we encourage 
working together with every agency.
    Mr. Carney. Mr. Shaffer?
    Mr. Shaffer. In my testimony, I indicated some of the 
things that we do, but here are some other things.
    We started a program with our Department of Environmental 
Protection. It is a coordinator program where if someone is 
reported to the department, a farmer is reported to the 
Department of Environmental Protection by someone, rather than 
the DEP person being the first line out to the farmer to tell 
them they have to straighten out, we have a farmer within that 
area that will go to his neighbor and say, hey, listen, you 
know you have a problem here. You really ought to correct this 
and get it straightened out.
    Now, if they refuse to do it, then it is out of our hands. 
But a lot of times we find that approach, hearing from another 
farmer, is less intrusive than if you hear somebody from 
enforcement, and it has really been a success. I mean we got a 
lot more accomplished and cleaned up the environment a lot 
better than if we have to go through the regulatory agency 
every time.
    Also, we developed an ag advisory board to our Department 
of Environmental Protection that meets once a month, and it is 
a group of farmers. By statute, they have to have the 
opportunity to comment on any one of the department's 
regulations that has to do with agriculture.
    Now the department doesn't have to listen to them, 
naturally, by comment, but at least it provides the Department 
of Environmental Protection all the information possible 
because I truly believe the more information you have, the 
better the decisionmaking process will be.
    So I think and as I said with Kathleen McGinty, our 
Secretary of DEP, we co-authored an editorial letter together, 
stating how much progress agriculture has made in the cleaning 
up and our contribution towards cleaning up of the Chesapeake 
Bay.
    Mr. Carney. That is good.
    As you know, the Susquehanna River runs through almost all 
of the counties in my district in Pennsylvania. So I consider 
it kind of our river actually, and your efforts are very much 
appreciated. I am very proud of what Pennsylvania has been able 
to do for its part for cleaning up the waterways.
    Can you talk about the farmers' willingness to manage the 
nutrient management program in Pennsylvania and what farmers 
are specifically doing to implement the plan voluntarily? Can 
you talk about that a little bit?
    Mr. Shaffer. We started that. I am proud to say we are 
ahead of the curve. We started that several years ago, 
introducing a nutrient management plan.
    As a matter of fact, after 10 years, we went over it again 
because technology and science had showed that phosphorus could 
be a problem as well. So we included phosphorus.
    What the nutrient management plan has done is provided for 
the amount of animals you have, there is a number given to 
that. You need X amount of acreage, for instance, to apply the 
nutrients from those animals. Therefore, you have to show that 
you are only applying the amount of nutrients that a crop can 
be taking up. So that has been a very successful plan.
    We have implemented that years ago because, listen, 
understand one thing. What people miss is the land, the water 
are our tools. We need the land and the water. We need good 
land, good water to keep farming and stay in business. Our 
farmers realize that.
    Therefore this being proactive and voluntary with these 
nutrient management plans, it has really been a success story, 
I am proud to say.
    Another thing in agriculture, one thing about farmers, they 
are very proud of accomplishments. They feel they have to 
accomplish something. What I have a concern of something like 
this is if you keep moving the target on them, they get very 
frustrated.
    In other words, they have a plan. They see what they are 
trying to attain. If you keep having a moving target, it really 
frustrates them and their willingness to accomplish what they 
need to do.
    Mr. Carney. I thank you for your testimony.
    Mr. Chairman, I will have another round of questions.
    Mr. Oberstar. Thank you.
    Ms. Runbeck, you mentioned a poll or several polls you 
discussed. I don't want to have dueling polls, but the 
Associated Press, this recent March, mid-March, conducted a 
poll on citizens' concerns on environmental issues. Pollution 
of drinking water was named the number one issue by well over 
53 percent and others go down the list.
    I don't want to legislate by poll, but I do want to say 
that citizen concerns about clean water are very high on the 
list of the anxieties that people feel about the world in which 
we live.
    You also suggested that if my bill were enacted, there 
would be a bureaucratic morass. We have one right now in the 
aftermath of Rapanos and SWANCC. There are 30,000 permit 
applications pending with the Corps of Engineers. There is an 
average three-month waiting period for each permit, which is 
substantially up compared to what it was prior to Rapanos and 
SWANCC.
    We need to reduce the backlog that exists, and I propose 
that the current state of uncertainty about the law is creating 
this bureaucratic backlog and complexity for the Corps of 
Engineers. We don't have enough people to process the existing 
permit applications which they were able to process rather 
readily prior to SWANCC and Rapanos and approved 99 percent of 
permit applications submitted.
    But let me come to, I think, your concern--although you 
weren't this specific about it--that deleting the term, 
navigable, from the places where it appears in the current 
Clean Water Act would expand its definition.
    Suppose I just leave in place, navigable water, where it 
appears but attach to it the specific application by regulatory 
proceedings of the Corps and of EPA, as I have expressed 
earlier in the day. Does that allay your concerns?
    Push the button on your microphone, please. I want to hear 
every word.
    Ms. Runbeck. Actually, I think the big fear is not so much 
necessarily the definitions of water because I think States 
have inched toward those definitions. It really is the 
activities affecting those waters.
    Mr. Oberstar. You mean the word, activities, as it appears 
in the introduced bill?
    Ms. Runbeck. Right, right.
    Mr. Oberstar. Is that the specific term?
    Ms. Runbeck. That is an entirely new, never before 
regulated area of concern.
    There is an infinite number of questions about who is going 
to decide and what is the nature of this activity and how it 
affects the water. Does it happen over time? Does it happen 
under what conditions and who is going to do the regulation? 
There are just many, many questions, and I would suspect it 
would.
    When I spoke to one Corps of Engineers official because I 
said, well, how much more time and how much bigger workload 
will that require of you agency?
    He said, I don't know. Ask the EPA. It won't require any 
new work from us, but ask the EPA.
    So it is a matter that is quite undefined.
    Mr. Oberstar. I asked that very question earlier in the day 
of EPA and of the Corps of Engineers and asked them 
specifically to address the current regulations, and I 
specified which ones, that would be covered by the term, 
activities. They allowed as how they could be very clear about 
what is meant by activities because they have been regulating 
them for the past 30 years.
    So we will get the Corps and the EPA definition and be glad 
to share that with you and get your comment on it.
    Ms. Runbeck. That would be fine.
    I think just to sort of fill in a gap here, I am watching 
the wetlands rulemaking in Minnesota, and they are looking at 
the same issue. You know there is much discussion about this 
term, direct and indirect impact. So it just a little different 
way of phrasing it, but it is a wide open door, it does appear, 
to litigation, to uncertainty.
    I mean how is anyone to know, short of having these 
specifically defined? I wouldn't imagine you would really want 
to because that is too limiting too. It is a difficult area.
    Mr. Oberstar. I think the thrust of testimony throughout 
the day has been: Give us more clarity in the application of 
the law. Give us more specificity.
    I am moving in that direction through the hearing process. 
We are getting much more specific issues raised.
    Mr. Recker, let me ask you, in what ways have your farming 
activities been affected post-SWANCC and Rapanos compared to 
regulation, pre-SWANCC and Rapanos?
    Mr. Recker. I can probably safely say that there haven't 
been changes to it that I can speak of right now.
    Actually, I can tell you, though, for the last 20 years 
since I have been farming, 22 years, that we have continually 
increased the amount of conservation that we use on our farm. 
That has been voluntarily led, with government programs but 
voluntary on my part, to say we want to do the right thing 
because we want to have clean waters.
    In northeast Iowa, we have some of the best trout ponds, 
well, trout streams anywhere. So we are very conscious about 
what happens to our waters.
    I can say I have seen no regulation, and I would not want 
to see.
    Mr. Oberstar. Do you have any pending permits that you have 
had to submit for the Corps of Engineer?
    Mr. Recker. No.
    Mr. Oberstar. Or the EPA?
    Mr. Recker. No.
    Mr. Oberstar. Mr. Shaffer, have you had any?
    Mr. Shaffer. No. No, sir. I don't have any.
    Mr. Oberstar. So the application of the Clean Water Act has 
been true to its stated language to exempt normal agricultural 
activities.
    Mr. Shaffer. Up to this point.
    Mr. Oberstar. You have not been subject to any permitting.
    Mr. Shaffer. Right, right.
    One concern I would have, just to elaborate on what Mr. 
Recker said, is the EQIP program has been a very successful 
program where cost shares have gone to farmers for conservation 
practices. Our farmers in Pennsylvania utilize that program 
wherever possible to help improve the environment.
    Now, if we have to go to the Army Corps or EPA to get a 
permit to put some of these practices out there, I think it is 
going to have more of a deterrent for farmers.
    Mr. Oberstar. But that is my point, if you haven't been 
subjected to a permit up to now.
    Mr. Shaffer. No, not up to now. No.
    Mr. Oberstar. Then the language that continues this 
exemption remains in place and continues your exemption. Yes?
    Mr. Shaffer. From what I have read and I am told, now 
understand, I am just a farmer. I am not a legislator or a 
lawyer, but it is my understanding that wherever there is a 
gray area--and I think I have heard enough today that there is 
a gray area--usually it turns around to bite me.
    With all due respect, that is what I am concerned about, 
that is not very, really explicit enough, that it will be left 
up to somebody else's interpretation, and that is my greatest 
fear of that.
    Mr. Oberstar. All right, you tell me whether this is gray. 
Nothing in this Act, including any amendment made by this Act, 
shall be construed as affecting the authority of the Secretary 
of the Army Corps or the Administrator of the Environmental 
Protection Agency under the following provisions of the Federal 
Water Pollution Control Act, the Clean Water Act of 1972.
    Nothing in this Act shall be construed as affecting the 
authority--that is not gray. That is very clear, isn't it?
    Shall be construed, not shall be attributed. You can't 
imagine something. Nothing shall be construed. That is very, 
very clear, specific, binding legislative language. I have been 
writing legislation for 34 years, and I know that it is.
    Relating to the discharges of stormwater from oil, gas and 
mining, Mr. Quinn, operations and related to discharges of 
dredged or fill materials from normal farming, silviculture--
that is timber harvesting--and ranching activities. Pretty 
clear and specific, isn't it?
    Nothing shall be construed as affecting the authority under 
the provisions of the Act.
    That has been in place since 1972, and you have not had to 
file for a permit. Mr. Recker hasn't had to file for a permit. 
We say in this language, you won't have to do it in the future 
either.
    So it can't be a gray area. It can't be misconstrued. It is 
very specific.
    What is gray is now there is a Kennedy test. There is a 
Scalia test. There is a question mark test. And, there is a 
great deal of uncertainty, although they, the judges, have 
stayed away from farming and ranching activities. They didn't 
mess with that in the basic law.
    But I want to ask you about the prior converted farmland. 
Although the Clean Water Act does not refer to prior converted 
farmland, the practice has been to treat land that is farmed 
under those provisions that I cited, that are in the 1972 Act 
as exempt from permitting, from regulation.
    Once farming stops, once the farmer ceases to farm the 
land, sells it for a subdivision, for housing, for a shopping 
center, it then becomes subject to the permitting provisions of 
the Clean Water Act. Do you have a problem with that?
    Mr. Shaffer. Yes, sir, I do.
    Mr. Oberstar. It is not going to be used for farming now.
    Mr. Shaffer. I understand. But understand, in the first 
place, I think in 1993, President Clinton promulgated an 
exemption for prior converted cropland regardless of the use.
    Now, understand that a lot of farmers are land rich and 
cash poor. Their whole assets are tied up in their land. If 
they are not able to pass that along to their children or 
whatever, that is their retirement. To devalue the land that 
way would have a great hardship on a lot of our farmers that 
might depend on that for their retirement.
    Mr. Oberstar. I have discussed with Soil Conservation 
Service representatives in the State of Minnesota in my 
district and elsewhere around the State. That is the way the 
law has been interpreted in Minnesota, and the SCS people tell 
me that sales of farmland have not been diminished because that 
land no longer has the protection of farmland. The value of 
land does not diminished because of that.
    Mr. Shaffer. Well, I can assure you in Pennsylvania, if the 
land returns and gets a wetland designation, it reduces its 
value considerably.
    Mr. Oberstar. Do you think then a shopping center should be 
exempted from the provisions of the Clean Water Act as farming 
activities are?
    Mr. Shaffer. No. What I said was_
    Mr. Oberstar. If that farmland is sold for a shopping 
center, do you think the exemptions should continue? Is that 
what you are advocating?
    Mr. Shaffer. No.
    I think a point should be made. The State, as I said in my 
testimony, we have, every year, increased net gains in 
wetlands. Our biggest destroyer of wetlands in the State of 
Pennsylvania is the Department of Transportation. They are the 
biggest ones.
    We have implemented different activities where we can buy 
into a pool. So, if you are destroying a small acre of a 
wetland, maybe you can buy into a pool that would create five 
acres of wetland to offset it, for example.
    Mr. Oberstar. That is separate from the question that I am 
asking.
    Mr. Recker, do you have a comment on that?
    Mr. Recker. You were talking about a shopping mall. Should 
you build on a wetland?
    Mr. Shaffer. That is where I am confused.
    Mr. Oberstar. No. I am saying if farmland, prior converted 
farmland, it has been operated as a farm and no longer is going 
to be operated as a farm. It is going to be sold to a developer 
who is going to put a shopping center in there or a housing 
development in it.
    That is happening all through the south part of my 
congressional district. Farmland is being sold. Soybean fields 
are no longer pushing beans. They are pushing up houses.
    Should that exemption continue?
    Mr. Recker. Just an example that I would give is I actually 
had a project that was a wetland, that was farm ground. They 
decided to make it into a baseball diamond. Permitting went 
very quickly, and we were able to utilize it for a baseball 
diamond.
    Mr. Oberstar. So then you find no problem?
    Mr. Recker. Well, I am not sure if I find any problem. If I 
had that ground as farm ground, I would not be able to use that 
for land use of that. I couldn't. I couldn't put farming 
practices on that wetland and actually be able to farm that, 
but we were able to put a baseball diamond actually in that 
particular property.
    Mr. Oberstar. Whether you converted to a farm is a 
different issue from the one I am posing of whether farmland, 
which is exempted from the provisions of the Clean Water Act, 
converted to other activity should lose its exemption.
    Mr. Recker. No.
    Mr. Oberstar. You don't have?
    Mr. Recker. Well, I don't, but prior converted in my mind 
was ground that was once deemed as wet or hydric in soils.
    Mr. Oberstar. And converted to agricultural purpose.
    Mr. Recker. Actually because of drainage.
    Mr. Oberstar. Yes.
    Mr. Recker. Under subsurface drainage, we were able to 
improve it.
    Mr. Oberstar. Right.
    Mr. Recker. So, once that has been improved and it should 
not have to revert back to a wetland, no matter what the use 
is. It has been improved. It is no longer a wetland.
    Mr. Oberstar. But the exemption is for farming activity. 
The exemption in the law is for farming activity. That is the 
current law. That has been since and, in fact, before 1972.
    If it loses the character of farmland, should it also lose 
the exemption? You might want to think about that.
    Mr. Shaffer. Would I be allowed to give testimony regarding 
that?
    Mr. Oberstar. Pardon me?
    Mr. Shaffer. Would you mind if I submitted further written 
testimony regarding that?
    Mr. Oberstar. I said, think about it. Think about it and 
get back to us.
    Mr. Shaffer. I would appreciate that.
    Ms. Runbeck. Mr. Chairman?
    Mr. Oberstar. Yes, Ms. Runbeck.
    Ms. Runbeck. If I could, just a comment on prior converted 
wetland and the experiences where I am noting in Minnesota, 
those exemptions seem to be sliding away. The new AD-1026 form 
which the farmer signs to get their ag subsidies has been 
changed, and now you sign. When you do sign it, you are 
authorizing a wetlands redetermination.
    Some of these redeterminations now are returning land. They 
are now acres and acres of wetlands. So it does seem to be.
    Mr. Oberstar. Aren't those, as I understand it, lands that 
are under State law, not covered by the Federal law?
    Ms. Runbeck. No. These are farmed wetlands. I mean farmed 
croplands that have been farmed for decades.
    Mr. Oberstar. You mean EPA departments are changing the 
permitting?
    Ms. Runbeck. Yes.
    Mr. Oberstar. I would like you to submit some specific 
evidence of that. That would be very useful for our purpose.
    Ms. Runbeck. Okay, I will do that.
    Mr. Oberstar. Now, turn a corner and say if we retain the 
language in current law, rather than delete it as my introduced 
bill would propose, to go back to the pre-Rapanos and SWANCC. 
If we retain the term navigable waters, but attach to it, to be 
very clear about what is to be covered and protected, the 
regulatory activities of the Corps and of EPA specified in the 
law, specifically referenced in the law, to make it clear that 
the term, navigable waters, applies in the way, pre-Rapanos and 
SWANCC, that the Corps and EPA applied them, would that be 
acceptable to you?
    Mr. Shaffer. To be perfectly honest with you, as I said, I 
am not a legislator or a lawyer and, if you allow me to, I 
would like to respond to that in writing after seeking some 
counsel on it.
    Mr. Oberstar. That would be welcome.
    Mr. Shaffer. I am the first to admit it.
    Mr. Oberstar. I invited the Farm Bureau to do that way back 
last year and still haven't received an answer from them. So, 
if you can get one, that would be good.
    Mr. Shaffer. I would.
    Mr. Oberstar. Or give me your own. Give me your own as a 
farmer.
    Mr. Shaffer. I would be glad to.
    Mr. Recker. I would just like to be able to see how they 
cleared up the word navigable, what language they used to clear 
that up.
    Mr. Oberstar. All the practice that was in place prior to 
SWANCC and Rapanos, people were complaining about that. It is 
just that the Court decision has changed the landscape with 
respect to the application of the Act. I am trying to get it 
back to where it was prior to this confusion of who is 
following Scalia, who is following Kennedy, who is following 
the justices in between.
    Mr. Gerber, thank you very much for your testimony, your 
comments. Give me your thoughts about retaining the term, 
navigable, but bringing with it the burden of previous 
practice.
    Mr. Gerber. Thank you. With your deference, I would like to 
also ask for some time to really look at that, particularly 
after seeing the specific language because I think it does 
really matter.
    Mr. Oberstar. Sure.
    Mr. Gerber. One of the things that we would have to look at 
is how that change in language meets the original intent of the 
Clean Water Act as well as meeting the intent of this bill to 
actually return us to that time and also taking into account 
the focus of the Supreme Court on those particular words and 
really look at just what do we run a risk of still going 
backwards.
    Mr. Oberstar. Thank you.
    I thank all the witnesses at this table and those previous 
in the day.
    We are getting now down to specifics, away from hyperbole, 
away from alarmism, away from even from hysteria that has been 
stirred from time to time and place to place. This is a 
complicated issue.
    I think every panel today has said, we want to sustain 
clean water. The question is how?
    I come back to a point I made time and again. All the water 
there ever was or ever will be on planet Earth is with us 
today. We are sending expeditions to Jupiter, to Venus, to Mars 
to look for water. We have it right here. We have to protect 
it.
    Every day, 40 trillion gallons of moisture passes over the 
continental United States. About half of that falls from the 
atmosphere and is absorbed before it reaches the ground.
    The amount that reaches the ground or 625 billion gallons 
are available. Half of that is absorbed or runs off. The rest 
is what we can use, about 320 billion gallons a day.
    It is enough to sustain life if we protect it, and we are 
the only ones who can. Nature can't do it without our help. So 
our charge, your charge is to help us protect this precious 
resource and pass it on to the next generation in better shape 
than we found it.
    Mr. Carney, did you have another question you wanted to 
ask?
    Mr. Carney. Unfortunately, I wanted to get involved in the 
language issues, but you guys already did that. I appreciate 
that.
    But I do want to make a quick observation, Mr. Chairman, 
that having this kind of dialogue is absolutely essential to 
getting a clean water bill that has the common sense practices 
in it that enable us, one, to sustain the water resources of 
this planet and this Country but also to enable those at the 
witness table to do what they do. I agree with Mr. Shaffer and 
Mr. Recker that the land and the water are the tools and to 
enable those craftsmen to use those tools properly is the right 
thing to do.
    I come to the conclusion tonight actually that we are sort 
of in violent agreement about a lot of this stuff and that 
common sense is being injected by both sides and that a 
solution is very near at end.
    I thank you for the opportunity and for holding this 
testimony, sir, and everybody at the table. I think it is good 
news from here. Thank you very much.
    Mr. Oberstar. Thank you, Mr. Carney.
    I would be remiss, Mr. Recker, if I didn't thank you for 
your acknowledgment of our work on the Water Resources 
Development Act. That was six years worth of worth that we got 
through in the first session of this Congress, and then we had 
to override a presidential veto to get it passed.
    In the history of the Congress, there have been 1,493 
vetoes of acts of Congress by all the Presidents in history. 
Only 106 were overridden until last fall. That was the 107th.
    Mr. Recker. Well, we thank you for your hard work on the 
Committee.
    Mr. Oberstar. An earlier override was on the Clean Water 
Act by a vote of 10 to 1.
    It is important. I am just going to say this one thing.
    Round trip barge traffic from Clinton, Iowa, to the world's 
most important agricultural export facility, New Orleans, is 
820 hours because the barge tows are 1,200 feet in length and 
except for Alton, Illinois, the locks are 600 feet.
    So each barge tow has to be broken in half. Send 600 feet 
through. The next 600 feet through. Latch them together. Take 
all that time and go down the next one and do it all over 
again.
    Grain, as you know, moves in international markets on as 
little as an eighth of a cent a bushel. If you are adding that 
transportation cost to the hard work you have put into your 
beans and corn and other agriculture commodities that you are 
exporting, think of Brazil.
    Just look at a map of Brazil. That point that sticks out in 
the south Atlantic Ocean, that is Recife. That is the port of 
Recife Just below, there is the port of Santos. The port of 
Santos is the point of export for soybeans which Brazil is 
developing in fast amounts to the same markets that we are 
selling, in West and East Africa and the Pacific Rim, and they 
have a 2,500-mile advantage over us. That is a six-day sailing 
advantage.
    It is a huge transportation cost advantage over us, and we 
have not modernized the locks on the Mississippi, Ohio and 
Illinois Rivers since the 1930s except for Alton, Illinois. 
That is shameful.
    I said when I took the Chairmanship of the Committee, we 
are going to do the unfinished business of the Congress, and we 
got it done. I appreciate the participation of my colleague, 
Mr. Mica, and all the Members on the Republican side. There was 
an overwhelming support for that legislation because we know it 
means productivity, mobility, competitiveness for America.
    Thank you for listening to the sermon and thank you for 
your participation today.
    The Committee is adjourned.
    [Whereupon, at 9:59 p.m., the Committee was adjourned.]
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