    [Senate Hearing 110-1245]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 110-1245

    LEGISLATIVE HEARING ON S. 1870, THE CLEAN WATER RESTORATION ACT OF 2007

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

                                    HEARING

                                   before the

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                           ONE HUNDRED TENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  APRIL 9, 2008

                                   __________

      Printed for the use of the Committee on Environment and Public Works

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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                           ONE HUNDRED TENTH CONGRESS
                                 SECOND SESSION

                      BARBARA BOXER, California, Chairman
    MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
    JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
    THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
    HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
    FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
    BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
    BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
    AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee
    SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

           Bettina Poirier, Majority Staff Director and Chief Counsel
                    Andrew Wheeler, Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page

                                 APRIL 9, 2008
                               OPENING STATEMENTS

    Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
    Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     2
    Baucus, Hon. Max , U.S. Senator from the State of Montana........     5
    Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     7
    Barrasso, Hon. John A., U.S. Senator from the State of Wyoming...     8
    Isakson, Hon. Johnny, U.S. Senator from the State of Georgia.....     9
    Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland    23
    Craig, Hon. Larry E., U.S. Senator from the State of Idaho.......    25

                                   WITNESSES

    Browner, Carol, Principal, The Albright Group, Former
      Administrator, U.S. Environmental Protection Agency............    10
        Prepared statement...........................................    12
    Grannis, Alexander, Commissioner, New York Department of
      Environmental Conservation.....................................    33
        Prepared statement...........................................    35
    Brand, David P., Sanitary Engineer, Madison County, State of Ohio    42
        Prepared statement...........................................    44
    Card, Joan, Water Quality Division Director, Arizona Department
      of Environmental Quality.......................................    52
        Prepared statement...........................................    54
    Smith, Randall P., Smith 6-S Livestock...........................    58
        Prepared statement...........................................    60

                              ADDITIONAL MATERIAL

    Statements:
        Virginia S. Albrecht, Hunters & William on Behalf of The
          Waters Advocacy Coalition..................................    77
        Waters Advocacy Coalition (WAC)..............................    95
        American Forest & Paper Association..........................   100
        Arizona Municipal Water Users Association....................   102
        Associated Builders Contractors Inc..........................   104
        The Associated General Contractors of America................   106
        California Farm Bureau Federation............................   115
        The Nationwide Public Projects Coalition.....................   116
        National Warter Resources Association........................   118
        Water Resources Coalition....................................   119
    Article; Big Hole River Drought and Grayling Recovery Project....   121

    LEGISLATIVE HEARING ON S. 1870, THE CLEAN WATER RESTORATION ACT OF 2007

                                  ----------

                            WEDNESDAY, APRIL 9, 2008

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The full committee met, pursuant to notice, at 10:03 a.m.
    in room 406, Dirksen Senate office Building, Hon. Barbara Boxer
    (chairman of the full committee) presiding.
        Present: Senators Boxer, Inhofe, Barrasso, Baucus, Cardin,
    Carper, Craig, Isakson, Vitter and Whitehouse.

               OPENING STATEMENT OF HON. BARBARA BOXER,
               U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Senator Boxer. The hearing will come to order.
        I am really sorry to be 3 minutes behind. I had another
    event I had to attend.
        Today, the Committee considers one of America's bedrock and
    most successful environmental statutes, the Clean Water Act. We
    will hear testimony on the Clean Water Restoration Act, a bill
    introduced by Senator Feingold, that would restore the
    protections of the Clean Water Act that have been jeopardized
    because of some activist members of the Supreme Court.
        Enacted just over 35 years ago, the Clean Water Act has a
    critically important purpose, ``To restore and maintain the
    chemical, physical and biological integrity of the Nation's
    waters.'' The protections of the Clean Water Act have helped
    restore thousands of lakes and rivers, streams and wetlands. It
    has helped protect the water supply for our families, provide
    essential habitat for fish and birds and other wildlife, but we
    have a long way to go.
        While all waters were not evaluated, according to the EPA's
    most recent national water quality inventory, 45 percent of
    assessed rivers and streams were impaired; 47 percent of lakes,
    ponds and reservoirs were impaired; and of the assessed bays
    and estuaries, 32 percent were impaired.
        With an ever-expanding population and the effects of global
    warming on our water supply, now is not the time to be
    weakening the Clean Water Act. But due to the intervention of
    some of the Justices of the Supreme Court, much of that
    progress is in jeopardy. In two decisions on the scope of
    Federal jurisdiction under the Clean Water Act, Solid Waste
    Agency of Northern Cook County v. Corps of Engineers in 2001,
    and Rapanos v. U.S. in 2006, the Supreme Court cast a shadow
    over nearly 30 years worth of expert agency interpretations in
    protecting America's waters.
        In Rapanos, the Supreme Court failed to provide clear
    guidance for when the Clean Water Act applied, publishing five
    conflicting opinions with no majority ruling. This case has
    created massive confusion among judges, the regulated
    community, EPA and the Corps. But there is so much more at
    stake than confused lawyers, judges, agencies and stakeholders.
    According to EPA data, 111.6 million Americans are served by
    water systems that receive water from intermittent streams or
    headwaters, the very waters now argued to be outside the
    jurisdiction of the Clean Water Act. Our Nation's great
    recreation economy is at risk when our waters are at risk.
        According to the 2006 national survey of fishing, hunting
    and wildlife-associated recreation released just last month by
    several Federal agencies, including the U.S. Fish and Wildlife
    Service, $122 billion was spent on fishing, hunting and
    wildlife activities this year, 30 million people fish, 12.5
    million hunt, 71.1 million took part in wildlife-observing
    activities. Now, without clean, healthy waters and ecosystems,
    America risks losing much of its natural heritage.
        The bottom line is that America's waterways and wetlands
    are threatened because of these Supreme Court decisions and the
    Bush administration's interpretations of them. Fortunately,
    there is a solution to this problem, and I do applaud Senator
    Feingold for his leadership on this issue. His bill is simple.
    It restores the long-established jurisdiction of the Clean
    Water Act to protect the waters it was intended to protect and
    has always protected. Colleagues, after more than 35 years of
    improving and protecting water quality in America, we should be
    celebrating the Clean Water Act, not standing by and allowing
    its landmark protections to slip away.
        Senator Inhofe.

              OPENING STATEMENT OF HON. JAMES M. INHOFE,
                U.S. SENATOR FROM THE STATE OF OKLAHOMA

        Senator Inhofe. Madam Chairman, our Committee has examined
    the issues surrounding Clean Water Act litigation and
    jurisdiction several times, most recently in November. Thank
    you to all of today's witnesses who have taken time to come to
    testify before this Committee this morning. It is no secret
    this Committee has long advocated for policies that are
    protective of overall environmental health. I am proud of my
    years of service advocating for policies that improve our
    Nation's drinking and wastewater facilities.
        Today's legislative hearing will focus on S. 1870, the
    Clean Water Restoration Act. This bill as currently written
    will expand Federal jurisdiction authority in a way that pushes
    the outer limits of Congress' constitutional role. If Congress
    is to amend the Clean Water Act, any changes must provide
    clarity and reduce lawsuits. This bill does neither. It will
    not curtail litigation, but rather increase it as stakeholders
    seek legal clarity on what exactly are the limits of the
    constitutional authority.
        Many supporters of this legislation argue that the bill
    simply clarifies and restores the scope of Federal jurisdiction
    over waters and will return the regulatory authority and
    certainty to the pre-Rapanos Supreme Court decision era. I
    believe this statement is misleading. S. 1870 would strike the
    words ``navigable waters'' and replace the term with ``waters
    of the United States,'' defined as ``all InterState and
    IntraState waters and their tributaries.''
        Most egregious, though, is that the definition establishes
    Federal authority over not only all waters, but ``to the
    fullest extent that these waters or activities affecting these
    waters are subject to the legislative power of Congress under
    the Constitution.''
        In 1972, the framers of the Clean Water Act chose to tie
    Federal regulatory jurisdiction to the term ``navigable
    waters,'' limiting jurisdiction under the Commerce Clause. By
    striking any reference to ``navigable'' from the law, this bill
    will expand the Federal reach under the Act far beyond what the
    authors intended. In other words by striking any reference to
    the Commerce Clause, all waters, regardless of size or
    significance, and importantly, any activities affecting all
    waters, could be regulated by the Federal Government until the
    courts have determined the Federal reach was unconstitutional.
        For example, individual property owners could have a small
    depression in their field or yard that can collect water after
    a good rain. If this bill passes, those waters become
    jurisdictional and all activities that could affect that
    depression would have to go under the 404 permit.
        Further, homeowners could potentially need national
    pollutant discharge limitation system permits, the NPDES, for
    stormwater running off their property or from the gutters of
    their roofs. The effects of this legislation go far beyond the
    legal nuances and potential litigation. As you are well aware,
    Madam Chairman, many of our local governments, including cities
    and counties across the Country, face increasing financial
    burdens to improve their water and transportation
    infrastructure.
        I have received letters and testimony from all over the
    Country opposing this legislation, including the testimony from
    regional and municipal water associations that fear legislation
    will constrain State and local flexibility, while greatly
    increasing the time and costs associated with meeting water
    supply and wastewater treatment obligations, as well as timely
    completion of necessary WRDA projects.
        As a former mayor, I can tell you that local governments
    and landowners don't have the resources to delay the projects
    for years, while waiting on a permit. I have often said to
    others who have been mayors of cities that the major problem is
    not crime in the street and prostitution and all these things,
    but it is unfunded mandates. I think this is kind of what we
    are getting into here.
        We also have Mr. Smith here from Montana, conveying many
    concerns from our agricultural community. The current cost of
    producing the world's safest food supply are increasing, and
    adding layers of regulatory hurdles makes it harder for the
    family farmer to survive. The narrowly written savings clause
    only partially protects the agricultural community and opens
    families to potential litigation and fines for routine work. I
    would like to include in the record a letter signed by 24 State
    agriculture associations and several State sportsmen's
    organizations.
        Senator Boxer. Without objection, so ordered.
        [The referenced document was not received at the time of
    print.]
        Senator Inhofe. Finally, advocates of this bill assert it
    as a save-all for clean water, but will likely only add another
    cumbersome process to an already bureaucratic system, and not
    add to water quality.
        As I have said before, the Federal Government owes it to
    the American people and individual property owners, including
    the millions of homeowners across the Country, to have clean,
    concise constitutional definition of waters of the United
    States. The Clean Water Restoration Act does not meet any of
    these goals and will simply result in more lawsuits and more
    confusion.
        So obviously, I am opposed to this, and I thank you for
    this hearing, Madam Chairman.
        [The prepared statement of Senator Inhofe follows:]

                 Statement of Hon. James Inhofe, U.S. Senator
                           from the State of Oklahoma

        Madam Chairman, our Committee has examined the issues
    surrounding Clean Water Act litigation and jurisdiction several
    times, most recently in December. Thank you to all of today's
    witnesses who have taken time out of their busy schedules to
    testify before the Committee this morning. It is no secret this
    Committee has long advocated for policies that are protective
    of overall environmental health. I am proud of my years of
    service advocating for policies that improve our nation's
    drinking and waste water facilities without overburdening our
    communities. I have also worked tirelessly on legislation that
    protects and preserves wetland resources while respecting
    private property rights.
        Today's legislative hearing will focus on S. 1870, the
    Clean Water Restoration Act. This bill, as currently written,
    will expand Federal jurisdiction authority in a way that pushes
    the outer limits of Congress's constitutional role. If Congress
    is to amend the Clean Water Act, any changes must provide
    clarity and reduce lawsuits. This bill does neither. It will
    not curtail litigation, but rather increase it, as stakeholders
    seek legal clarity on what exactly are the outer limits of
    congressional authority. We should not propose and pass
    legislative language that increases uncertainty and increases
    an already litigious environment.
        Many supporters of this legislation argue that the bill
    simply clarifies and restores the scope of Federal
    jurisdictional waters and will return the regulatory authority
    and certainty to the pre-Rapanos-Carabell Supreme Court
    decision era. I believe this statement is grossly misleading.
        S. 1870 would strike the words ``navigable waters'' and
    replace the term with ``waters of the United States'' defined
    as ``ALL interState and intraState waters and their
    tributaries.'' Most egregious, though, is that the definition
    establishes Federal authority over not only all waters, but
    ``to the fullest extent that these waters or activities
    affecting these waters, are subject to the legislative power of
    Congress under the Constitution.'' In 1972, the framers of the
    Clean Water Act chose to tie Federal regulatory jurisdiction to
    the term ``navigable waters,'' limiting jurisdiction under the
    Commerce Clause. By striking any reference of ``navigable''
    from the law, this bill will expand the Federal reach under the
    Act far beyond what the authors intended.
        In other words, by striking any reference to the Commerce
    Cause, all waters--regardless of size or significance, and
    importantly, any activities affecting all waters--could be
    regulated by the Federal Government until the courts determine
    the Federal reach was unconstitutional. For example, individual
    property owners could have a small depression in their field or
    yard that can collect water after a good rain. If this bill
    passes, those waters become jurisdictional and all activities
    that could affect that depression or the waters in that
    depression must be permitted under section 404. Further,
    homeowners could potentially need national pollutant discharge
    elimination system permits (NPDES) for storm water running off
    their property or from the gutters on their roofs.
        The effects of this legislation go far beyond the legal
    nuances and potential litigation. As you are well aware, Madam
    Chair, many of our local governments, including cities and
    counties across the country, face increasing financial burdens
    to improving their water and transportation infrastructure. I
    have received letters and testimony from all over the country
    opposing this legislation, including this testimony from
    National Water Resources Association, Western Urban Water
    Coalition and Western Coalition of Arid States. They say that
    this legislation will ``unduly constrain State and local
    flexibility, while greatly increasing the time and costs
    associated with meeting water supply and wastewater treatment
    obligations, [and] timely completion of necessary projects,
    such as those authorized in the recent WRDA legislation.'' In
    the last 5 years, construction costs have risen over 30
    percent. As a former mayor, I can tell you local governments
    and land owners do not have the resources to delay projects for
    years while waiting on a permit that will unlikely lead to
    cleaner water. I am pleased to have Mr. Brand here to speak to
    the concerns of local governments.
        We also have Mr. Smith here from Montana, conveying many
    concerns from our agricultural community. The current costs of
    producing the world's safest food supply are increasing, and
    adding layers of regulatory hurdles makes it harder for the
    family farmer to survive. The narrowly written savings clause
    only partially protects the agricultural community and opens
    families to potential litigation and fines for what is now
    considered routine work. I would like to include in the record
    the letter signed by 24 State agriculture associations and
    several State sportsman's associations.
        Finally, advocates of this bill assert it as the save-all
    for clean water, but it will likely do nothing to improve
    overall water quality. Increasing Federal bureaucracy and
    requiring property owners to go through a lengthy permitting
    process for activities that may affect a puddle on their
    private land hardly constitutes protecting our nation's water.
        As I've said before, the Federal Government owes it to the
    American public and individual property owners, including the
    millions of homeowners across the country, to have a clean,
    concise and constitutional definition of ``waters of the United
    States.'' The Clean Water Restoration Act does not meet any of
    these goals and will simply result in more lawsuits and more
    confusion.
        I look forward to all of our witnesses' testimony on S.
    1870.

        Senator Inhofe. And let me say, as I told Carol Browner, it
    is nice to have you back here. We missed you for a few years,
    and I always enjoyed the combat.
        [Laughter.]
        Senator Boxer. I remember that combat.
        Senator Baucus.

                 OPENING STATEMENT OF HON. MAX BAUCUS,
                 U.S. SENATOR FROM THE STATE OF MONTANA

        Senator Baucus. Thank you, Madam Chairman.
        Obviously, I thank you for holding the hearing. I thank all
    the witnesses for coming to help us out here. I especially want
    to thank Randy Smith. Randy is the most distinguished-looking
    fellow sitting in the front row there. I look forward to
    Randy's testimony at a later date.
        Randy and his wife Emily, for those on the Committee who
    probably do not know, runs a cow-calf operation near Glen,
    Montana. He is also Chairman of the Big Hole Watershed
    Committee. I mention that because the Big Hole Watershed
    Committee is a coalition of ranchers and conservationists
    working to restore our ailing fish populations there in the Big
    Hole, and to protect the Big Hole River, the point being that
    there is a lot of cooperation in that part of our State in
    trying to deal with lots of different dynamics.
        One is running a good, profitable cow-calf operation. The
    second is addressing some of the concerns under the Endangered
    Species Act. They are all working together to try to accomplish
    all those objectives in a cooperative way, and I just want to
    thank Randy for all his efforts. He is doing a super job.
        Senator Mike Mansfield, the former Majority Leader, once
    said, ``We will have to learn to get along with one another and
    recognize that we don't know it all. So we should listen to the
    other person, and that other person sometimes is right and
    sometimes we are wrong. It will be a matter of accommodation
    and compromise and knowledge and understanding.''
        I would just like to highlight that quotation from him,
    because I think that sense of humility served Montana's most
    distinguished Senator very well. His humility made him one of
    the most effective Majority Leaders in our Senate's history. He
    served for 17 years. That is a record for a Majority Leader.
    When he was Leader, he also worked hard to pass the Clean Water
    Act in 1972. It was important to him. As we take a closer look
    at the Clean Water Restoration Act, I hope that all this will
    bring the same sense of humility and willingness to consider
    other points of view to the debate that he epitomized, that he
    pursued.
        The Clean Water Act has undoubtedly made this Country a
    better place to live, work and raise a family. That is clear.
    If you stop and think about it, our water was in terrible shape
    before the passage of the Clean Water Act and the Safe Drinking
    Water Act. We cleaned up our rivers and we have safe drinking
    water in the United States by and large because of those major
    bills that were passed back then. It is amazing what they have
    done for this Country.
        I am sure some of you probably remember walking along the
    Potomac River. It stunk, and that is just one river. The
    Cuyahoga burned, it was just so polluted. We have done a super
    job, frankly, in this Country under the Clean Water Act. Its
    goals of improving water quality, ensuring fishable waters and
    protecting wetlands are clearly goals that we all support.
        The Clean Water Act has been instrumental at protecting
    wetlands. Before passage of the Clean Water Act in 1972, our
    Country was losing about 500,000 acres of wetlands every year.
    By the mid-1990's because of the Act, that number had dropped
    to about 60,000 acres per year. Clearly, that is a major
    improvement, but clearly more work needs to be done. From
    filtering nutrients and sediments to reducing flood risks to
    promoting habitat for fish and game, wetlands serve invaluable
    public purposes. We must find ways to both protect wetlands,
    obviously, and respect private property rights.
        In the wake of the SWANCC and Rapanos cases, it is
    appropriate that the panel focus on how we can best achieve the
    goals of the Clean Water Act for drinking, fishing and
    recreation. The Clean Water Restoration Act proposes one path
    forward. I look forward to working with my colleagues to see if
    it is the right path. Clearly, there are good points in it, but
    there are also probably parts of it we have to pay more
    attention to. I hope our efforts here today are ones where we
    can work together in a constructive and humble way.
        Thank you, Madam Chairman.
        Senator Boxer. Thank you, Senator Baucus. You have a very
    good way of finding that sweet spot where we can move
    legislation forward, so we will be working very closely with
    you.
        Senator Vitter.

                OPENING STATEMENT OF HON. DAVID VITTER,
                U.S. SENATOR FROM THE STATE OF LOUISIANA

        Senator Vitter. Thank you, Madam Chairman, for calling this
    hearing on a very, very important topic, one that clearly
    dramatically affects Louisiana, in which I take great, great
    interest.
        As does Senator Inhofe, I have some real reservations about
    the bill. Let me mention two related reservations in my opening
    statement. One is the central part of the bill which does not
    restore previous law in any way, but dramatically changes and
    expands previous law and dramatically expands Federal
    jurisdiction. I think we need to be very clear, because the
    title of this bill is very misleading, in my opinion.
        This bill dramatically redefines and expands Federal
    authority because it takes the term ``navigable waters'' out of
    Federal law and replaces it with ``waters of the United
    States.'' I think it is beyond debate that is not restoring
    previous law. That is changing and expanding previous law. That
    is not restoring what was ever intended to be the limits of
    Federal jurisdiction. That is dramatically expanding Federal
    jurisdiction.
        The new definition of what is under Federal jurisdiction
    would be, under this bill, all interState and intraState waters
    and their tributaries, including lakes, rivers, streams,
    mudflats, sandflats, and the list goes on and on. I looked at
    this and did some research and thought about it, trying to
    figure out what instance of water was not included in that
    definition and I couldn't come up with anything. So this is a
    dramatic change.
        Now, in Louisiana, we are very concerned with wetlands. We
    represent 40 percent of the wetlands in the United States.
    Unfortunately, we represent 80 percent of wetlands annual
    losses. It is being lost at an alarming rate. If you can
    picture a football field of land, just think of a football
    field, we lose that from Louisiana every 38 minutes. Every 38
    minutes, another football field is gone, and that is 24 hours a
    day, 7 days a week, 52 weeks a year, with no time off for
    evenings or weekends or holidays. That is an alarming rate. We
    have already lost an area the size of several smaller States
    from our State of Louisiana. So wetlands are crucially
    important.
        The other hesitation I have with all of this is that
    unfortunately, the Corps of Engineers wetlands regulation has
    done absolutely nothing to stem that problem or to solve that
    problem. In fact, you have this bizarre nonsensical situation
    which only a big Federal bureaucracy could come up with, where
    there is intense Corps of Engineers regulation of wetlands
    under present law, and that is appropriate and certainly in
    most instances I am not quarreling with that, and there is a
    necessity under that regulation for mitigation if any of that
    wetlands, for instance, is impacted by development. That is a
    good idea. I am not quarreling with that principle at all.
        But you know what? None of our activity to try to stem
    coastal land loss, which is also under the leadership of the
    Corps, qualifies for that mitigation. It is two different
    planets, and never the twain will meet. We are actually running
    out of mitigation banks in Louisiana where folks who are
    impacting even low-value wetlands can go to mitigate, while we
    are initiating and moving forward with huge ground-breaking
    coastal restoration efforts, and those efforts don't qualify in
    any way for mitigation. It is completely bizarre and
    nonsensical.
        So under that scenario, I am very wary of dramatically
    increase the Corps' jurisdiction as this bill would do. I very
    much look forward to all the witnesses' testimony about those
    concerns in particular.
        Thank you very much, Madam Chairman.
        Senator Boxer. Thank you, Senator Vitter.
        Senator Barrasso.

              OPENING STATEMENT OF HON. JOHN A. BARRASSO,
                 U.S. SENATOR FROM THE STATE OF WYOMING

        Senator Barrasso. Thank you very much, Madam Chairman.
        In Wyoming, almost nothing has been more important in our
    State's history than water. As we say across the West, and
    certainly in Wyoming, whiskey is for drinking and water is for
    fighting over. When someone says water in Wyoming, all ears
    tune in.
        In Wyoming, where the frontier spirit of smaller government
    and individual liberty are still sacred traditions, there is
    overwhelming objection to this bill. The people of Wyoming do
    not want the Federal Government to go where this bill wants to
    go.
        I recently heard from the Wyoming Association of Rural
    Water Systems. I would ask that their letter be added as part
    of the record.
        Senator Boxer. Without objection, so ordered.
        [The referenced document was not received at the time of
    print.]
        Senator Barrasso. Thank you very much, Madam Chairman.
        They oppose any legislative efforts which would expand the
    Federal Clean Water Act jurisdiction over all water within the
    United States. The concern I hear at home is that this
    legislation would grant to the EPA and to the Army Corps
    virtually unlimited regulatory control over all wet areas
    within a State. So let's be clear. This bill then trumps States
    rights. This bill preempts States and local governments from
    making local land and water use decisions.
        For Wyoming, there is even a larger concern because this
    bill un-does the legacy of one of Wyoming's great statesmen,
    Senator Malcolm Wallop. Senator Wallop is still recognized as
    an authority on Western water law. He authored and passed an
    amendment to the Clean Water Act. That amendment blocks
    Washington from overriding State control of water.
        This bill wipes that out and leads to an even more
    expensive, cumbersome bureaucracy. The bureaucracy will
    increase delays in securing permits and that will slow or stop
    vital economic activities all across the Country. That is going
    to include agriculture, electric transmission, transportation,
    mining, real eState development--all will be affected. These
    are not activities that we want to hurt deliberately,
    especially while the housing market is in decline, while people
    are paying higher electric bills, while family farms are in
    decline, while our Nation's infrastructure may be crumbling,
    and while the mining industry is facing new regulations. These
    are the industries that create economic growth and we need them
    to be strong and viable.
        I have serious concerns on how this bill will affect my
    home State. There are significant unintended consequences of
    this legislation that will lead to absurd results in Wyoming.
    It is now springtime in the Rockies. As the snow melts, large
    temporary water holes are formed on ranches and farms all
    across the State. Under this bill, any activity on that land
    that touches these water holes would require a Federal permit.
    Ranchers who use stock water ponds for watering livestock would
    be required--required--to obtain a Federal permit before any
    upgrades or modifications to the pond occur.
        Let's talk about the larger issue for Westerners across the
    spectrum, and that is the water shortage in the West. The West
    is growing, but the Rocky Mountain West never has all the water
    that it needs. This bill will needlessly delay construction or
    repair of pipelines, ditches, canals, diversion structures, and
    wells with more permitting requirements.
        Water is vital to the sustainability of Wyoming and so many
    other States. We should not delay such pipelines, canals,
    diversion structures and wells from being built. Delays in
    providing for water delivery not only hurts our citizens, it
    also hurts endangered species who need that water as part of
    habitat conservation plans and recovery plans across the West.
        Given the reasons that I have mentioned, I have come to the
    conclusion that on behalf of the citizens of Wyoming, I want to
    say thanks, but no thanks.
        Thank you, Madam Chairman.
        Senator Boxer. Thank you so much. We don't have applause at
    these, but we do appreciate it.
        Senator Isakson.

               OPENING STATEMENT OF HON. JOHNNY ISAKSON,
                 U.S. SENATOR FROM THE STATE OF GEORGIA

        Senator Isakson. Thank you, Madam Chairman.
        I want to begin by thanking Administrator Browner. I don't
    know whether she will remember this event or not, but in 1999
    she issued a waiver to the State of Georgia and the city of
    Atlanta for the construction of the 17th Street Bridge. We were
    in violation of the Clean Air Act and clean air standards. I am
    pleased to tell you, because of her wisdom in granting that
    waiver, that connector has now been built and 20 percent of the
    traffic on the downtown connector is gone, and the air quality
    has gone up, which also demonstrates a point that I would like
    for her to address sometime during the hearing.
        When you run into the labyrinth of regulatory authority
    over air and water, sometimes there are unintended consequences
    just like there was on the 17th Street bridge. For example, we
    are now in Georgia in a severe level IV, category IV drought.
    Our main drinking water resource, the Lake Lanier, is being
    managed not by water consumption for humans, but by an
    environmental species suit. Because of wetlands restrictions,
    building of reservoirs in North Georgia has been difficult and
    problematic because of those regulations.
        So in our attempt to build reservoirs to get more retainage
    to help manage ourselves during the most difficult of times of
    drought, and our inability to get those reservoirs built
    because of the wetlands application, we end up having the Corps
    of Engineers releasing water because of an environmental
    species suit. The unintended consequence of both those
    excellent pieces of legislation is we are running out of water
    to drink. In the absence of the drought going away, we are
    going to have a big problem.
        So my comment is this, and I think Senator Baucus made an
    excellent observation. I think he referred to as a sweet spot.
    The waiver for us on the 17th Street Bridge was a sweet spot.
    If there is not a clear way in which you can work your way
    through regulations to see to it that in the end the people we
    serve are benefited, not actually punished, then this is going
    to have a real problem.
        So it is very important for me to understand that whatever
    the regulatory mechanism is, it does not become a labyrinth
    that inhibits us doing the right thing. I again thank you for
    that bridge. It has made my commute in Atlanta a lot easier.
        Senator Boxer. Thank you very much, Senator.
        And now we turn to Hon. Carol Browner, Principal, The
    Albright Group, former Administrator, U.S. Environmental
    Protection Agency. We really are very pleased to see you,
    Carol. If you can sum up in five or 6 minutes, and then we will
    have questions.

      STATEMENT OF CAROL BROWNER, PRINCIPAL, THE ALBRIGHT GROUP,
       FORMER ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

        Ms. Browner. Thank you very much, and good morning, Madam
    Chairman, Senator Inhofe and members of the Committee. I
    appreciate the opportunity to return to this Committee room and
    to testify before you today about the urgent need for
    legislation to protect our Nation's waters in light of recent
    challenges to the Clean Water Act.
        I want to speak to you today as the former Administrator of
    the Environmental Protection Agency. I also want to note that I
    have continued my work in the environmental arena as Chair of
    the National Audubon Society.
        During my tenure at EPA, I gave high priority to
    safeguarding our Nation's waters. I recognized, as did the
    Administrators who preceded me, that Congress intended for the
    Clean Water Act to cover all of our Nation's interconnected
    water resources, including watersheds, tributaries and
    wetlands. These waters are essential not only for safeguarding
    water quality, but also for the health of our people, our
    economy, and to ecosystems. These waters protect and purify
    water. They shield our homes and businesses from flooding, and
    they provide valuable habitat for a wide range of wildlife.
        However, I believe this congressional intent has been
    challenged in recent years by Supreme Court decisions such as
    SWANCC and Rapanos. In the Rapanos case, I joined with three of
    my fellow former EPA Administrators, Democrats and Republicans,
    in filing a brief in the Supreme Court supporting the
    Government's interpretation of which waters should be protected
    under the Clean Water Act. In enacting that law, Congress
    acknowledged that all of our Nation's waters are connected
    through hydrologic cycles and therefore must be given equal
    protection. Agencies and courts, in keeping with that
    legislative intent, must interpret the term navigable waters
    broadly as waters of the United States in order for our waters
    to be adequately protected from pollution.
        My fellow former Administrators and I, two Democrats and
    two Republicans, argued that misinterpretation of navigable
    waters, which was suggested by the petitioners in the Rapanos
    case, would if accepted by the court do serious damage to our
    ability to protect our Nation's waters.
        In light of the Supreme Court's contentious split decision
    in Rapanos, I am now concerned that wetlands and tributary
    protections that have been in place for more than 30 years are
    jeopardized. The Federal agencies responsible for implementing
    the Clean Water Act--EPA and the Army Corps of Engineers--
    worked for months on policy guidance in light of the Rapanos
    decision. Last June after substantial review and revision by
    the White House and other agencies, in addition to concerted
    lobbying efforts, EPA and the Corps finally issued this
    guidance. I believe this guidance fails to clarify the Clean
    Water Act's protections for a large portion of the Nation's
    wetlands and streams, and that it takes a very narrow and
    unnecessary interpretation of the Rapanos decision.
        Under this guidance, as many as 20 million acres of
    wetlands and thousands of miles of seasonal streams will be
    vulnerable to pollution, filling and destruction. This will
    inevitably affect many more water resources. The most effective
    solution to this problem would be legislation to restore how we
    have always interpreted the Clean Water Act. I support passage
    of the Clean Water Restoration Act of 2007 because it leaves no
    doubt as to the scope of the Clean Water Act. Specifically
    removing the phrase navigable waters from the Clean Water Act
    and giving definition to the phrase ``waters of the United
    States'' will restore the original intent of Congress and allow
    the agencies to continue to act as they have acted for 30-some
    years.
        I want to be very clear about this. This legislation is not
    an expansion of the Clean Water Act's jurisdiction. It is
    merely an essential clarification of Congress' original intent
    for this landmark law, which we have relied upon. As Senator
    Baucus noted, it has allowed us to achieve so much in terms of
    protecting our Country's water resources.
        Again, it is a pleasure to be back before this Committee,
    and I look forward to answering any questions.
        [The prepared statement of Ms. Browner follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Boxer. Thank you so much, Ms. Browner. You said
    that there were three of you that joined together in effect to
    say you didn't agree with Rapanos. Who were those three?
        Ms. Browner. There were four. There was myself. I was
    joined by the only other Democrat to ever run EPA, Doug Costle,
    and then two Republicans, Mr. Train and Mr. Reilly.
        Senator Boxer. Thank you.
        Now, Senator Vitter says that the Clean Water Restoration
    Act, which I support and you support, expands the scope of the
    Clean Water Act. He says it is disingenuous to say it just
    restores it. Do you see this bill expands the Clean Water Act
    beyond the scope of what it was before these Supreme Court
    decisions? Any significant changes?
        Ms. Browner. There is absolutely no expansion of the Clean
    Water Act's jurisdiction. The waters that have historically
    been protected would continue to be protected. I might also
    note, Madam Chair, that the exemptions embodied in the Clean
    Water Act are also preserved. So some of the examples that
    appear and people have been talking about are actually
    activities that are exempt, have been exempt under the law, and
    would continue to be exempt under the law.
        The final point I would make is just because a water is
    covered doesn't mean nothing can happen. There is a permitting
    process that unfolds. I think a number of the members spoke to
    the issue of mitigation. So this is not a hard stop. It merely
    guarantees that the Federal Government will take a look in
    particular situations and determine whether or not the activity
    will have irreversible impacts on the quality of our water.
        Senator Boxer. OK. I just want to say for the record, as we
    all sit here, I would say in general members who are here
    today, water is a huge issue. Anyone who saw the movie
    Chinatown understands, or read the book Cadillac Desert about
    my State, knows about the water fights. I agree with you,
    Senator Barrasso, it is a cause of great angst and continues to
    be.
        I found what is very interesting, the American Association
    of State Highway and Transportation Officials put together a
    document. They said since Rapanos, and I think this would
    interest my colleagues, because the Federal Government has had
    to issue guidance and it is so confusing. They have issued
    guidance under the Bush administration and one State reports
    that prior to Rapanos, section 404 permitting typically took no
    more than 120 days. It is now taking eight to 9 months to get a
    project done. So to my colleagues complaining about this bill,
    it would at least improve the current situation.
        So I would ask have you heard similar stories, that this is
    so confusing it is taking longer to get these projects done?
        Ms. Browner. I have. I think there is a lot of confusion
    out there. There is a case out of Alabama recently where there
    was a criminal conviction and fines because of activities that
    took place. The case on appeal was remanded to the trial judge,
    who essentially threw up his hands and said, I don't understand
    what I am supposed to do here; this is not clear at all, and I
    don't want to be involved going forward.
        So if you have judges feeling that they cannot even begin
    to interpret the law, you can only imagine what the person
    sitting in a government office trying to process a permit on a
    day to day basis must be experiencing.
        Senator Boxer. So you have judges throwing up their hands.
    You have officials here in the Bush administration so confused
    that the guidelines are taking--that the guidelines are so
    confusing that it is taking way longer to get a permit than it
    did under the former bill.
        So under Rapanos, if a factory is located next to an
    isolated wetland or a stream that flows only some months of the
    year, are you concerned that the owner of the factory could
    dump toxic pollution into those waters and argue that they are
    not within the scope of the Clean Water Act.
        Ms. Browner. I am concerned. I think that is an important
    point. We think about the bill before you as protecting
    wetlands from being dredged and some way destroyed or paved
    over, but the Clean Water Act is also about what we discharge,
    what pollutants we dump into our rivers, lakes and streams, and
    that may start with a wetland or some sort of stream that only
    runs occasionally. If we lose the authority to prohibit or to
    regulate those kinds of activities, or to be even be aware that
    those kind of activities are taking place, we will set
    ourselves back in terms of our goal toward fishable and
    swimmable waters for the people of this Country.
        Senator Boxer. Thank you.
        My time has almost expired, so we will turn to Senator
    Vitter.
        Senator Vitter. Thank you, Madam Chair.
        Madam Administrator, obviously we disagree. Under your
    tenure, EPA and the Corps didn't assert jurisdiction over every
    intraState body of water, did it?
        Ms. Browner. The definition that is laid out in this piece
    of legislation is what we followed. This was how we did the job
    on a day to day basis. You are right. We didn't assert
    jurisdiction over every single puddle, nor would this
    legislation cause the government to be able to assert
    jurisdiction over every puddle.
        Senator Vitter. Let me rephrase the question. What type of
    body of water does the new language in this bill not cover?
        Ms. Browner. Oh, all sorts of bodies of water.
        Senator Vitter. Give me some examples if there are all
    sorts.
        Ms. Browner. A puddle. I think someone mentioned that
    puddles are covered. Puddles would not be covered. There are
    eight different exemptions.
        Senator Vitter. Are you sure the puddle wouldn't be a mud
    flat?
        Senator Boxer. Would you allow the witness to answer before
    you interrupt her please?
        Senator Vitter. A slough for a prairie pothole or a wet
    meadow?
        Ms. Browner. All of the things listed in here have widely
    accepted scientific definitions. Just because you or I might
    look at something and say it is this or that, the agencies who
    implement these laws are not free to do that. They follow the
    accepted definitions and there are lots of things that would
    not be covered. I come from Florida where wetlands is a huge
    issue. I can tell you all sorts of places in Florida that would
    not be covered under this law. This is not changing what the
    agency has been doing, the EPA, the Army Corps of Engineers,
    and the States that were subject to that jurisdiction. This is
    not changing what they have been doing.
        In a better world, to your point about protecting wetlands
    and protecting our waters, maybe we should be thinking about
    expanding what is covered. This does not do that in any way,
    shape or form.
        Senator Vitter. I am a layman, so explain to me some of
    these accepted definitions. What is the difference between a
    puddle, as you describe it, and a natural pond or a wet meadow?
        Ms. Browner. If the Chair doesn't mind if I can just back
    up for 1 second, the best definition of a wetland is not
    whether or not water is always there. The best way to determine
    it, the scientific way to determine what is a wetland is to
    look at what is the vegetation, what is the habitat that is
    provided.
        Simply because water stands someplace at some period of
    time doesn't make it a wetland, doesn't make it something that
    is subject to permitting under the Clean Water Act. So there
    are widely accepted ways to determine what is and what isn't.
    The Army Corps, EPA and many of the States have actually mapped
    their States. You can look at these maps. If you are a
    developer--we did a lot of this work when I was at EPA--you can
    look at a map and understand where there are requirements that
    you have to meet and where there are no requirements for you to
    meet.
        Senator Vitter. Again, let me re-State the question,
    because I don't understand the answer. For a layperson, what is
    the difference what you are calling a puddle and a mudflat, a
    sandflat, a slough, a prairie pothole, a wet meadow, a natural
    pond--all impoundments of the foregoing.
        Ms. Browner. I would say it this way. A puddle does not
    have the kind of vegetation, does not provide habitat, does not
    contribute to aquifer re-charge. Therefore, it is not covered
    under the bill.
        Senator Vitter. I would just make the point, Madam Chair,
    that a lot of things I consider a puddle and my constituents
    consider a puddle are undoubtedly these things. I think as a
    matter of practice, this would be a dramatic expansion and
    invitation of the Federal bureaucracy to get involved in all
    sorts of things that they haven't traditionally been involved
    in.
        I assume, Madam Administrator, you agree that under the new
    language, there is no type of property, like for instance a
    backyard, that is off limits by definition.
        Ms. Browner. Under the historic interpretation of the Clean
    Water Act, there are lots of things like backyards--and you and
    I may not be meaning the same thing--that are excluded. There
    is a whole 30-year history of interpreting this language that
    doesn't go away. It is preserved.
        Can I try and say this another way? If you don't do
    something like this bill, if you don't reassert the historic
    jurisdiction of the Clean Water Act, you could end up in a
    situation where an overly aggressive Administrator started
    expanding the Federal Government's activities. This actually
    takes what has been done for 30 years and says that is all you
    can do going forward.
        Senator Vitter. I thought----
        Senator Boxer. Your time has expired. We will now move to
    Senator Whitehouse.
        Senator Whitehouse. Thank you, Madam Administrator, for
    being here. I appreciate it very much.
        Having run regulatory agencies myself, and having served as
    a lawyers and attorney general, I am keenly aware of the value
    of the precedent that has been built up around a particular
    statute over very many years.
        It is somewhat unrelated, but when I was attorney general,
    one of the battles I fought was to get rid of our State
    definition of grand jury secrecy rules so we could model the
    Federal grand jury secrecy rules. I did so not because the
    Federal grand jury secrecy rules were word-by-word better than
    the State rules, but rather because they came with a body of
    precedent that spanned the Country, that had innumerable
    glosses on them and further definitions and analysis and
    discussion.
        That body of precedent provided guidance to lawyers,
    provided stability to the process, and prevented my successors
    in this office from doing extraordinarily difficult, stupid or
    whatever things that they might have been able to slip through
    a State definition. That great body of precedent attached to
    the Federal definition was enormously both restricting and
    provided practical guidance in a way that a new bill never
    could.
        So I just want to emphasize what you said. I think that the
    most important thing that you said in your testimony was
    exactly that, that there is this precedent developed under both
    Republican and Democratic Administrations. Correct?
        Ms. Browner. Yes.
        Senator Whitehouse. Under Republican and Democratic
    Administrators?
        Ms. Browner. Yes.
        Senator Whitehouse. Primarily driven by technical
    professional people who are not partisans within the
    Environmental Protection Agency?
        Ms. Browner. And the Army Corps of Engineers, yes.
        Senator Whitehouse. And the Army Corps of Engineers--hardly
    a hotbed of liberal environmentalism through a great deal of
    this period, correct?
        Ms. Browner. Correct.
        Senator Whitehouse. So you would agree, there is real value
    to trying to revive that body of precedent in this case. Could
    you comment on how a developer might find value in having this
    body of precedent reactivated by this statute?
        Ms. Browner. Well, two points. You are exactly right.
    Precedent is very important and agencies are not free to do
    whatever they want. They have to follow the law and they have
    to follow the historical interpretations of the law by the
    agency and by the courts. A developer should take a lot of
    comfort in knowing that the agency is not free to do anything.
    This clarifies that in light of the Supreme Court decision.
        I might also note that in the Rapanos case, 34 States
    submitted amicus briefs saying we can't do this without the
    assistance of the Federal Government. So there is this
    recognition that the precedent, Senator, as you speak, that has
    built up in the Federal program is extremely important.
        Senator Whitehouse. Yes, including my State of Rhode
    Island. I am very proud to be a part of it, but also including
    Kentucky, Louisiana--Senator Vitter's State signed on--Montana,
    and New Mexico. It is a very broad coalition.
        One other quick question or observation, I guess, the Clean
    Water Act was passed back in 1972, and the Rapanos decision was
    in 2006.
        Ms. Browner. Correct.
        Senator Whitehouse. So for 34 years--we are trying to get
    back to whether the law of the land was developed over that
    great time period in which there were Republican Presidents and
    Republican Congresses and Democratic Presidents and Democratic
    Congresses. That is a pretty substantial track record for
    lawyers, developers, people trying to figure out whether to
    finance a project, to look at. Correct?
        Ms. Browner. Absolutely. To put two finer points on it,
    most of the people interpreting the Clean Water Act over its
    history were Republican administrators, not Democratic
    administrators; and No. 2, I think I am widely known for having
    had a very aggressive enforcement program at EPA going after
    the polluters. We read this the way it had been read
    historically.
        At the same time, the economy grew in this Country. Lots of
    areas got developed. Things as we know it didn't grind to a
    halt. So you can interpret this law and still have a lot of the
    activities that people think are important to their
    communities, to their economy, to their agricultural
    production. It has been done before. It can be done again.
        Senator Whitehouse. My time has expired. I thank the Chair.
        Senator Boxer. Thank you very much, Senator.
        Senator Barrasso.
        Senator Barrasso. Thank you very much, Madam Chairman.
        When the Clean Water Act passed initially, there were some
    assurances made unanimously to Western Senators regarding
    allocation of water. I think that helped ensure passage of the
    bill at that time. Certainly, the amendment from Senator Wallop
    was part of that essentially barred Washington from overriding
    State control of water.
        The National Water Resources Association states that this
    bill dramatically undermines the assurances made by Congress to
    the States, which was part of the Wallop amendment. Does this
    bill, in your opinion, erode or undermine the language in the
    statute included by Senator Wallop?
        Ms. Browner. No, I do not believe it does. I am sure you
    know this, but it is always just worth reminding ourselves, the
    Clean Water Act is about water quality. It is not about water
    quantity. I think what Senator Wallop was attempting to do was
    to make that distinction very clear.
        Now, obviously there are times when water quantity affects
    water quality, but the heart of the Clean Water Act is water
    quality.
        Senator Barrasso. But you continue to maintain this is not
    an expansion, but a clarification, although everyone I talk to
    at home views this as an expansion, not as you claim, a
    clarification. You talked about your opinion on these. That is
    just your opinion. It is not what a judge may rule if a suit is
    filed.
        Ms. Browner. Let me say, if I were at EPA and this bill
    were to pass, nothing would change in terms of what EPA would
    be doing. EPA would continue to do the same thing it had done
    prior to the Rapanos decision. I wouldn't send out some
    guidance. I take your point that I am not a judge. I do have 20
    years of experience in the regulatory arena and I continue to
    follow these issues, but I am not a judge.
        But I can tell you, as someone who has written regulations,
    as someone who has written legislation, who has read a lot of
    these, this in my considered opinion does not in any way change
    the jurisdiction of EPA and the Army Corps of Engineers when it
    comes to protection our Nation's water quality.
        Senator Barrasso. It would just seem that removing the word
    navigable does expand, does not just clarify, and if it didn't,
    this piece of legislation wouldn't be necessary.
        In your opinion, how is this bill going to benefit ranchers
    and farmers all across Wyoming and the Rocky Mountain West?
        Ms. Browner. Well, I think it benefits them in the same way
    it benefits all of us, which is we are facing increasing
    dilemmas when it comes to water in this Country, making sure
    that we are able to protect areas that act as re-charge,
    protect areas that contribute to a water body that becomes our
    drinking water.
        Our water resources are interconnected, and protecting them
    in a coherent way makes sense for everybody, whether you are a
    farmer or a mother turning on the tap water to fix their baby's
    bottle.
        Senator Barrasso. Thank you very much, Madam Chairman. I
    think we just have a fundamental difference of opinion on this
    as a clarification or expansion. Thank you.
        Senator Boxer. Thank you, Senator Barrasso.
        Senator Carper.
        Senator Carper. Ms. Browner, welcome. It is great to see
    you. Thank you for your service to our Country and your
    stewardship, and for joining us today.
        One of the things I was reminded of almost every day in my
    8 years as Governor was that businesses like certainty. They
    like to know what the rules of engagement are going to be. We
    have been wrestling here with what to do about climate change
    and global warming. My colleagues have all met with folks from
    the utility industry.
        I remember this one meeting about 2 years ago with folks
    from utility industries around the Country. We were talking
    about reducing carbon dioxide emissions and trying to set up a
    cap and trade system. This one crusty old fellow from a utility
    company somewhere down south, maybe Georgia, he said to me,
    just tell us what the rules are going to be; make them
    reasonable; give us a chance to comment on them; and just give
    us a little flexibility and get out of the way. That is really
    what he said. But he said, in our business we are going to be
    investing hundreds of millions of dollars, maybe billions of
    dollars, and we just need to know what the rules are going to
    be.
        I think the same probably applies here. You started to make
    a point, and I just want you to go back and make it again for
    us. The point I think you were making is you could have an
    Administration given broad flexibility to come in and take the
    law, if you will, through regulation, in directions that would
    be far different from where this Administration would go. I
    think what you are trying to say is by virtue of passing the
    legislation that has introduced, and that some of us have
    cosponsored, we do provide a fair amount of predictability for
    folks who need it. Would you just expand on that for us again?
        Ms. Browner. You are exactly right. I heard it over and
    over again during my tenure at EPA. People just want to know
    what the rules are. They want to know what the end game is.
    They want some flexibility in how they get there, but tell them
    the rules.
        This tells people the rules. Essentially what it says is
    the rules are as they have been. Again, I think it is really
    important to remember, this doesn't say you can't get a
    wetlands permit. It simply says when you must seek the
    authority of the government. It also includes a whole set of
    exemptions, a whole type of activity, and these types of waters
    are not covered with this proposed legislation.
        So I actually think that if I were a developer, if I were a
    farmer, I would take a lot of comfort in the clarity that this
    brings to the situation.
        Senator Carper. All right. Thank you.
        A second question, if I could. I understand that under EPA
    and Corps of Engineers new guidance rules that as many as 20
    million wetland acres could lose Clean Water Act protection. I
    don't know if that is the right number. That is what I have
    heard. Delaware, as you know, is a coastal State. You know
    because you have been there along with your son, as I recall,
    many years ago on a day that it rained all day. But I
    understand the importance of preserving wetlands to clean our
    surface water and to protect our coast in Delaware against
    storm surges and provide some habitat for plant and animal
    species.
        The question is this, and it really relates to cost. Could
    you talk with us a little bit about the costs of not protecting
    these so-called wetlands to public health and the environment?
    Is it more effective, in your judgment, to take preventive
    measures or to really be reactionary?
        Ms. Browner. If 35 years of environmental efforts in this
    Country on the pollution side have taught us anything, it is
    precisely that preventing the pollution, rather than waiting to
    clean it up, will always be more cost-effective. We are talking
    about water quality broadly, but when we talk about wetlands,
    that is nature's kidneys. It is the way nature has of purifying
    the runoff, the pollution. And if we go around draining our
    wetlands and paving our wetlands over, we are not going to have
    that function in nature and we are going to end up having to do
    it ourselves, and it will be very, very expensive.
        Senator Carper. One last question, if I may, Madam Chair.
        One of the objections to the Clean Water Restoration Act
    that has been introduced is that it is an expansion of Federal
    authority over protecting our Nation's waters. Could you just
    respond to that? Do you think it is?
        Ms. Browner. No.
        Senator Carper. I think you said no.
        Ms. Browner. It is not an expansion. There is nothing that
    the Army Corps or EPA would do differently with the passage of
    this law than they did 10, 15, 20, 30 years ago. It would be
    different maybe than what they are doing today because today I
    do not believe they are enforcing the Clean Water Act in the
    way they should. But in terms of the historical interpretation,
    this simply clarifies, restates, and we continue to do what we
    did and were able to do to good end in terms of cleaning up our
    rivers, lakes and streams, protecting our waters.
        Senator Carper. All right. Thanks very much. Thanks for
    joining us today.
        Senator Boxer. Thanks, Senator Carper.
        Senator Isakson.
        Senator Isakson. Thank you, Madam Chairman.
        Following up on Senator Carper's question about 230,000
    acres of wetlands that would not be covered, was that because
    the definition of navigable water always exempted the wetland?
        Ms. Browner. The issue is that the current Administration
    has chosen to read a 414 decision, the Rapanos decision, as
    excluding from the purview of the Clean Water Act things that
    have historically been within the Clean Water Act. That number
    is derived by a number of people who have looked at if you
    apply this new interpretation of the Administration, what falls
    out of the jurisdiction of the Clean Water Act that had
    previously been in its jurisdiction.
        Senator Isakson. Prior to the Rapanos decision, the court
    decision, if the State of Georgia was cited for a violation of
    the Clean Water Act, but it determined the point source of the
    pollution was in the State of Tennessee, prior to Rapanos could
    it seek a remedy against the State of Tennessee as a State?
        Ms. Browner. There would be a couple of options open to the
    State of Georgia. One would be to contact the EPA and ask them
    to take action against the State of Tennessee. The second would
    be litigation between the State of Georgia and the State of
    Tennessee, as there has been litigation between Florida and
    Georgia.
        Senator Isakson. In that case, when you were the
    Administrator, had such a circumstance come up and if they had
    come to you as EPA Administrator to intercede, do you remember
    cases where you did?
        Ms. Browner. Oh, sure. There were cases. What you would do
    initially is sort of the common sense thing, which is you would
    reach out to the State of Tennessee and say we think you have a
    facility within your jurisdiction that is out of compliance.
    Can you take a look?
        But there is an authority that EPA has which is if a State
    has received day to day operation authority for the Clean Water
    Act, but EPA determines that State is not managing that day to
    day operation within the confines of the Federal Clean Water
    Act, EPA can step in and do what is called an over-file, which
    is sort of reclaim the jurisdiction on a case-specific basis.
        Senator Isakson. So would it be true then that after the
    decision, the EPA is now saying, in that example I gave where
    Georgia goes and says, look, the point of this pollution of the
    water is not us, you can't cite us, it is Tennessee, in your
    Administration and others they would have gone and tried to
    mitigate and work that out with the State of Tennessee. But now
    because of the definitional interpretation, that would not have
    taken place?
        Ms. Browner. In some situations. I think there is still
    agreement between everybody that certain things are covered by
    the Clean Water Act. Then there is this dispute that some
    people have interpreted Rapanos to say things that were
    historically covered are not covered. An example would be, if
    that discharge in Tennessee from that polluting plant went into
    an intermittent stream, a stream that only occasionally had
    water in it, and that stream then fed into Lake Lanier, there
    are people who would say that discharge is no longer covered
    under the Clean Water Act. It is no longer subject to
    regulation by the EPA because that stream is no longer covered.
    You have to kind of work upstream to sort these things out.
        It is a complicated example you have given. Depending on
    what the discharge is into, you may have people arguing today
    it is not a covered discharge.
        Senator Isakson. Well, it may be complicated, but as I read
    the amicus written by the Attorneys General for those 34
    States, that is precisely what they were trying to get from the
    court, was a clarity that they could call on the EPA when they
    were a victim and not an accomplice to the pollution.
        One other point I will make, and I know my time is running
    out, going back to clean air that it is somewhat analogous to.
    In Northwest Georgia, we have Dade and Walker Counties. They
    are non-compliant in clean air standards, but don't generate
    any pollution, but are south of a major city in another State
    that does. Because of wind patterns and the Bermuda high, they
    end up being penalized. They have no remedy under the Clean Air
    Act, or at least we have never been able to find one to get
    some waiver or some wiggle room in terms of the penalties under
    the Clean Air standards. It would be interesting to take this
    application and look to the Clean Air Act and see if you could
    find a way.
        Ms. Browner. There actually are some mechanisms within the
    Clean Air Act that can provide some relief to them. For
    example, there are States in the Northeast who have actually
    sued States in the Midwest over their failure to regulate
    pollution that is impacting the Northeast. So there is some
    precedent there.
        If I might just thank you for recognizing the work we were
    able to do in Atlanta. It is something I continue to be very
    proud of. As EPA Administrator, when we could hold a press
    conference where I determined that a bridge is an air pollution
    reduction strategy, it was a nice day.
        Senator Isakson. At the risk of going too long, and there
    probably were others, that was the singular best example I have
    ever seen of making an intelligent decision that benefited both
    the environment and the development community, which does
    demonstrate you cannot always be adversaries. You can, in fact,
    be friends.
        Ms. Browner. But the laws all provide flexibility for
    common sense interpretations. Thank you for recognizing that.
        Senator Boxer. Thank you, Senator.
        Senator Cardin.
        Senator Cardin. Thank you very much, Madam Chair.
        Let me first ask consent that my entire opening statement
    be placed in the record.
        Senator Boxer. Without objection, so ordered.

             OPENING STATEMENT OF HON. BENJAMIN L. CARDIN,
                U.S. SENATOR FROM THE STATE OF MARYLAND

        Senator Cardin. Ms. Browner, welcome. It is a pleasure to
    have you back. You bring back good times when EPA was out there
    fighting on behalf of our environment. I can tell you, we are
    going to restore those days. I think it is critically important
    for our Country and I just applaud you for your leadership and
    I thank you very much for your testimony.
        I just really want to make a comment about how important
    this issue is to maintain, as you point out, the jurisdiction
    of the EPA as it relates to our waters. As you know, Maryland
    is very much impacted by the Chesapeake Bay. It is the largest
    estuary in the Country. It depends upon the concerns of many
    different jurisdictions. It is 64,000 square miles and 110,000
    streams flow into the Chesapeake Bay, with 1.7 million acres of
    wetlands alone.
        I mention that because wetlands are vital, absolutely vital
    to the health of the Chesapeake Bay. I visited Blackwater over
    the weekend and saw what is happening to the marshlands there,
    and knowing how sensitive that area is to the whole ecology of
    the region. It is important for species diversification. It is
    important for drinking water. We could just go down the list.
    So it is vitally important that we have a Federal partner. The
    Clean Water Act is critically important, and the enforcement of
    the Clean Water Act, as historically understood, needs to be
    maintained. So I thank you for making that point.
        The people of Maryland have been on this issue now for
    several decades. Although it is frustrating because the quality
    is not what we want it to be, we recognize what would have
    happened if we didn't make the type of commitments that we did
    in the past, where we would be today. When you were the
    Administrator, you aggressively worked with us--aggressively as
    a partner, not to dictate policy, but to complement the work
    that was done by the Maryland government, the Virginia
    government, and Pennsylvania with the Susquehanna, and dealing
    with so many other issues. You used the jurisdiction of EPA so
    that we could get the type of cooperation from the private
    sector, as well as from the governmental partners.
        And that what this is I think all about. I think this bill
    is extremely important. I am a co-sponsor of the bill. I think
    it is extremely important that we maintain that partnership.
    That is what I look at this as, as a partnership. It has never
    been used in a way to try to dictate a particular policy. We
    have strong support from the private sector, strong support.
    They are rooting us on on this. They understand the importance
    of clean water to their families and to their businesses.
        I just really want to applaud you for being here and for
    what you have done, and thank you for continuing to wage the
    good fight.
        Thank you, Madam Chairman.
        [The prepared statement of Senator Cardin follows:]

               Statement of Hon. Benjamin L. Cardin, U.S.Senator
                           from the State of Maryland

        Madame Chairman, thank you. For 36 years the Federal Water
    Pollution Control Act, known as the Clean Water Act, has
    provided protection to our Nation's waters. The goal of the Act
    is ``to restore and maintain the chemical, physical, and
    biological integrity of the Nation's waters.'' Protection of
    our Nation's waters has been vital for contributing to the
    well-being of our Nation's environment, economy, and health.
    These protections are now at risk.
        The Supreme Court's SWANCC ruling in 2001 and its more
    recent rulings in June 2006--Rapanos v. United States and
    Carabell v. Army Corps of Engineers, have threatened to leave
    nearly 60 percent of our nation's waters without Federal
    protection.
        At issue in these cases was whether the application of the
    Clean Water Act to some non-navigable wetlands, based on
    interState commerce and de-linked from the traditional
    connection to ``navigable waters,'' exceeded Congress'
    constitutional authority. The uncertainty left as a result of
    these rulings over Federal jurisdiction of our Nation's waters
    threatens many streams, small rivers, and wetlands that are
    important for:

         water quality,
         fish and wildlife habitat,
         drinking water quality and protection, and
         for providing protection from flooding and storm surges.

        Wetlands play a vital role in the Chesapeake watershed--the
    largest and most productive estuary in the United States.
        One hundred and 11 thousand miles of creeks, streams and
    rivers throughout the Bay watershed converge into fifty major
    tributaries that send water to the Chesapeake Bay. The Bay's
    nine largest tributaries contribute 93 percent of the total
    fresh water to Chesapeake Bay, about half of the Bay's total
    water volume.
        Headwater streams comprise the majority of streams and
    waters in a watershed, and they play the most important role
    within the watershed in improving water quality by filtering
    runoff, sediment, nutrients, and contaminants before they move
    further downstream.
        The Bay's productivity has declined sharply in recent
    years--as the human population has increased beyond 16
    million--and land use practices, which include the destruction
    of wetlands, are a major cause of this decline.
        The Chesapeake Bay watershed has an incredibly complex
    network of 110,000 streams and 1.7 million acres of wetlands,
    most of which are non-navigable tributaries and non-tidal
    wetlands. The headwater streams and wetlands of the 64,000
    square mile Chesapeake Bay watershed, however, are inseparably
    bound to the Susquehanna, the Potomac, the James, and the other
    large navigable rivers that flow to the Bay.
        Over 500 surface drinking water intakes, serving up to 3
    million people, are located in non-navigable headwaters in
    Chesapeake Bay states. The headwaters of the Chesapeake Bay
    tributaries serve as a natural filter for drinking water.
        Additionally, headwater streams and wetlands of the
    Chesapeake watershed protect downstream areas from flooding as
    these streams and wetlands temporarily store water thereby
    slowing flood flows.
        The Chesapeake Bay and its 3,700 different species rely
    upon the network of streams and wetlands to provide vital water
    quality and a healthy habitat.
        Because of wetlands' vital role to the health of the
    Chesapeake, I am proud to be a co-sponsor of S. 1870, the Clean
    Water Restoration Act of 2007 introduced by our colleague
    Senator Feingold.
        S. 1870 would clarify the jurisdiction of Federal authority
    over the waters of the United States in the Clean Water Act by
    deleting the word ``navigable'' from the Act and replacing it
    with the term ``waters of the United States.'' This change
    makes it clear that the Clean Water Act is principally intended
    to protect the nation's waters from pollution, and not just
    maintain navigability. This legislation would reaffirm the
    regulatory status quo prior to the Rapanos and Carabell rulings
    while not creating ``new'' Clean Water Act requirements.
        We should let science determine the relationship between
    wetlands and downstream navigable waters and further let
    legislation we craft to deal with uncertainties in defining
    this Nation's waters. Because there are few wetlands and
    streams that are truly isolated hydrologically, there is
    scientific justification for their receiving the broadest
    possible protection under Federal law.
        I look forward to the testimony from today's witness in
    helping to clarify why we need to restore the wetland
    protections that existed prior to the SWANCC, Rapanos, and
    Carabell decisions.
        Thank you Madame Chairman.

        Ms. Browner. Thank you.
        Senator Boxer. Thank you, Senator.
        Senator Craig.

               OPENING STATEMENT OF HON. LARRY E. CRAIG,
                  U.S. SENATOR FROM THE STATE OF IDAHO

        Senator Craig. Madam Chair, thank you very much.
        Carol, it is great to have you back before the Committee. I
    appreciated the relationship we had over the years when you
    were Administrator.
        Madam Chair, let me first ask unanimous consent that my
    full statement be a part of the record.
        Senator Boxer. Without objection, so ordered.
        Senator Craig. I have been listening very closely as to
    what you are saying and what others are asking, so I am not
    going to repeat nor follow that line of questioning. I will
    make a brief comment because there are other witnesses to be
    before us.
        We know the distinctions and the differences that the great
    Mississippi River makes, not as a body of water, but as a legal
    boundary line between different water laws, eastern water,
    western water. In fact, the Senator from Georgia while talking
    about it, now his State and others are embroiled in the absence
    of good State relationships and water laws that the West has
    and has had now for a century.
        And the reason was always quite simple: in the West, water
    was scarce. It was an arid place. In the East, water was almost
    always a problem more than it was an asset. We worried more
    about managing it for human safety than we did about managing
    it for human survival.
        The Chairman's State and mine and others are perfect
    examples of phenomenal systems built over the years. Whether
    you criticize it or praise it with Cadillac Desert, Idaho and
    California bloom and are phenomenal places to live today
    because of man's ability to manage and shape water resources,
    some not so good, most very good.
        And as a result of that, when the law changes, Western
    States especially become very frustrated as to what it means.
    You are telling us that it really means nothing. It clarifies.
    So the ultimate question is, who clarifies it in the end? I do
    believe that we will go through a period of time in the courts
    and with fights all over again as to what it really means,
    because we know what it means today and what it doesn't mean.
    We fought that battle out. You were right out there on the
    front, no dispute about that, doing your job as Administrator
    as you saw the law and interpreted the law at the time.
        Push-back? You bet. There was a lot of push-back as it
    related to who had the authority, whether the Army Corps of
    Engineers was appropriately defining what a wetland was, blah,
    blah, blah, blah. None of us dispute the value of water. The
    great debate in the West today is what are we going to do? We
    are populating at a higher rate than we ever have before. We
    are going to have to reallocate water. I want that allocation
    and that relationship primarily to reside in Laramie or Boise
    or Sacramento, and not Washington, DC, and not with the
    Administrator of the EPA. Period. End of statement.
        But having said that, none of us dispute water quality. And
    as we fight over water quantity, we know that water quality is
    very, very important, more so than ever before. We understand
    the intermittent relationships of wetlands and aquifers and
    filtering systems and riparian zones and all of that much more
    so than we ever did before. And probably the Clean Water Act
    has helped us do that. I don't dispute that.
        Here is my greater frustration with this reauthorization. I
    think the Senator from Wyoming used the old adage that is very
    typically Western about water and whiskey in his opening
    comments. I will take it a step further. I really do believe
    that this change from navigable to waters of the U.S. will put
    us in a situation where any puddle--and I will use that word--
    that can float a legal brief is now in question.
        And don't think it won't be tried in the courts.
    Environmental groups, groups of good cause, will determine they
    can shape and control water more than ever before, and the
    clarification will not come from the Administrator of EPA. It
    will come from a judge. Where the Chair and I disagree on
    occasion about the Ninth Circuit, it is an activist court and
    we know it to be that, and it will make these determinations,
    and judges will become water masters in the West instead of the
    States.
        Therein lies my greatest frustration. Let me close--my time
    is up--by suggesting this. Water quantity that you say is
    Western water law, that Malcolm Wallop talked about who
    determines, will become a factor of water quality under this
    definition more than ever before, in my humble lay opinion.
        Thank you very much.
        [The prepared statement of Senator Craig follows:]

                Statement of Hon. Larry E. Craig, U.S. Senator
                            from the State of Idaho

        The Clean Water Restoration Act, S. 1870, deletes the term
    ``navigable'' from the Clean Water Act (CWA) and replaces it
    with a new legislative definition of ``waters of the United
    States'' that includes all ``intraState waters'' and all
    ``activities affecting these waters.'' These are far-reaching
    changes to the CWA.
        This is the age old issue of State versus Federal water
    rights. In Idaho, we believe in State preemption, where the
    State has the right to manage the local water bodies.
        The legislation that we are reviewing today, if enacted,
    would change the definition of navigable water to anything that
    will float a legal brief. The title sounds harmless, but if S.
    1870 is enacted and its supporters have their way, Federal
    bureaucrats will have the authority to visit farms, ranches,
    and even suburban lawns to gauge how your normal activities are
    affecting every drop of water that falls on your land. This
    bill will expand the reach of the Federal Government and its
    potential impact on individuals, businesses, and local
    government.
        While S. 1870 intends to clarify the jurisdiction of the
    United States over `waters of the United States,' it broadens
    the bodies of waters that could be subject to the legislative
    powers of Congress. Examples of where S. 1870 could negatively
    impact private land owners include: Intermittent streams as
    well as grass waterways that farmers typically access with
    heavy equipment and maintain could be impacted. A farmer might
    possibly need to obtain a permit to perform maintenance under
    the new definition of ``navigable waters''. In addition,
    farmers might also be required to obtain a permit before using
    chemicals to control weeds and insects in fields, due to
    possible runoff impacts into ``intermittent streams.''
        Should it be every drop of water or should there be some
    limit to the power of the Federal Government to reach into:
    lakes, rivers, streams (including intermittent streams),
    mudflats, sand flats, wetlands, prairie potholes, wet meadows,
    playa lakes, natural ponds, groundwater, and all impoundments
    of the foregoing. The language ``all impoundments of the
    foregoing'' would include roadside ditches. Since many of these
    ditches exist by the road for drainage purposes, the business
    practices of road builders and road maintenance could be
    impacted.
        The provisions would also add an untenable workload on
    reviewing agencies who must apply the additional changes to
    other regulatory decisions regarding point discharges, storm
    water management, and TMDL compliance. It would essentially
    grant the U.S. Environmental Protection Agency (EPA) and the
    Army Corps of Engineers veto power over local land use policies
    (regulating all activities that ``affect'' water).
    Additionally, thirty years of experience since the passage of
    the Federal Water Pollution Control Act indicates that states
    most efficiently protect the water quality of smaller and
    intermittent bodies of water and wetlands. S. 1870 would
    endanger this local protection.
        The bill makes no attempt to legislate within the bounds of
    Congress' Constitutional authority, instead it redefines the
    jurisdictional limits of the Federal Government to include all
    waters, regardless of their impact on interState commerce, and
    defers to Federal courts to come up with a jurisdictional limit
    that Congress did not. Good rulemaking will solve this issue--
    defining, with adequate public comment, what is ``isolated'';
    what constitutes a ``tributary.

        Senator Boxer. Thank you.
        Let me say this, given the time we are under, the
    constraints because we have a very good panel to hear from,
    what I am going to do now is, before Carol Browner leaves, some
    of us have some documents to place into the record. This would
    be the moment to explain those documents.
        Senator Craig, do you want to say what your document is?
        Senator Craig. I just would ask unanimous consent. It is a
    letter from a county commissioner and a board of county
    commissioners in the State of Idaho, Lemhi County. I would ask
    unanimous consent that it be part of the record.
        Senator Boxer. Absolutely.
        [The referenced document follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Boxer. Senator Cardin.
        Senator Cardin. The statement from the Chesapeake Bay
    Foundation in support of the Clean Water Restoration Act.
        Senator Boxer. Very good.
        [The referenced documentwas not received at the time of
    print.]
        Senator Boxer. Any colleagues on this side? Yes, Senator?
        Senator Barrasso. Thank you very much, Madam Chairman.
        Yes, in addition to the one I previously put in the record
    from the Wyoming Rural Water group, I also have a letter from
    the Wyoming Stock Growers Association that I would like to have
    included in the record.
        Senator Boxer. Without objection, so ordered.
        [The referenced document was not received at the time of
    print.]
        Senator Boxer. Senator Whitehouse, do you want to explain
    what you have here?
        Senator Whitehouse. Yes, I would like to, if I may, Madam
    Chair, with unanimous consent put into the record a table
    showing a State-by-State analysis of the overlay between the
    stream categories at issue here in the Rapanos decision, and
    the drinking water populations of the State which would
    indicate, relevant for instance to my colleague from Wyoming's
    question, that there are 177,871 Wyomians whose drinking water
    risks being affected by waste or sewage or chemicals dumped
    into start-reaches or intermittent ephemeral streams presently
    regulated, but at risk of losing regulation as a result of the
    Rapanos case.
        Senator Carper was here. He is fortunate. He has none.
    Georgia, it is 3.6 million people, and Idaho, 242,589; in
    Louisiana, Senator Vitter's State, 1,071,000; in Maryland, 3.7
    million water drinkers; and the last, our Chairman's State, the
    great State of California, 14.2 million people's drinking water
    could be affected by this decision. I would ask that to be made
    a matter of record.
        Senator Boxer. Well, without objection, we will put that
    in.
        [The referenced document follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Boxer. I have several things: the statement of Russ
    Feingold, who wrote this important bill, the Clean Water
    Restoration Act of 2007; the Office of the Governor of the
    State of Vermont supporting the legislation--a Republican
    Governor; the Office of the Governor of the State of Montana
    supporting this legislation; and a communication from 15
    Attorneys General from our States supporting this legislation.
        Also, I find this really intriguing. There is a document
    here, and I am going to put this one page in, where we have a
    quote by a member of the public during a workshop on the
    guidance held in Scottsdale, Arizona after Rapanos. This is
    what this gentleman says. I think you will all appreciate this,
    the frustration that is out there:
        ``We are I think as a community very frustrated with the
    guidance''--this is the guidance they got after Rapanos, and by
    the way, the guidance that now is causing big delays, much
    worse delays than before Rapanos--``We don't know what a
    significant nexus is. We don't know what a navigable water is.
    We don't know what a relatively permanent water is. We don't
    know how long a delineation will take. There has been a
    suspension of normal processing of delineation since 2006. One
    of the interesting things that is happening is this, you can go
    under the old rules and people are just saying please, let me
    go under the old rules, like they loved the old rules. We hated
    the old rules, but now we would just love to go under the old
    rules.''
        It is very interesting. You talk about an activist court.
    The Supreme Court is an activist court on this one, several
    members, not all.
        And the last thing I want to put in the record, I think
    this is also intriguing and I hope my Republican friends hear
    this. This is part of the legislative history of the Clean
    Water Act. This is a quote from the then-Senator Majority
    Leader Howard Baker, who was the former Chief of Staff to
    President Reagan later. This is what he said: ``A fundamental
    element of the Water Act is broad jurisdiction over water for
    pollution control purposes. Comprehensive jurisdiction is
    necessary not only to protect the natural environment, but to
    avoid creating unfair competition. Unless Federal jurisdiction
    is uniformly implemented for all waters, discharges located on
    non-navigable tributaries upstream from the larger rivers and
    estuaries would not be required to comply with the same
    procedural and substantive standards imposed on their
    downstream competitors.''
        Then he said, ``We cannot expect to preserve the remaining
    qualities of our water resources without providing appropriate
    protection for the entire resource.'' And he says finally here,
    Let me emphasize that the protection of water quality must
    encompass the protection of the interior wetlands and small
    streams.''
        So I think if you look at, first of all, this is such a
    bipartisan issue, which really pleases me. When Ms. Browner,
    former Administrator of the EPA, she said two Republicans and
    two Democrats came together with the same stand. We have
    Republican Governors writing to us, Republican Attorneys
    General. I think this is not a partisan matter.
        I just want to say, Carol Browner, thank you. Every time
    you come here, this is what I love about you. You are clear.
    You are straight from the shoulder. It is just unadorned
    testimony, and we learn a lot whether we agree with you as our
    side does in most cases, or disagree as some of our friends do.
    You are clear and you are knowledgeable. Thank you very much.
    We so appreciate your being here.
        Ms. Browner. Thank you.
        Senator Boxer. And now we will call up our second panel. It
    is my intention to go straight to this panel. So we welcome
    you: The Honorable Alexander Grannis, Commissioner, New York
    Department of Environmental Conservation; Joan Card, Water
    Quality Division Director, Arizona Department of Environmental
    Quality; The Honorable David Brand, Sanitary Engineer, Madison
    County, State of Ohio; and Randall P. Smith, who we have all
    been introduced to I think before, Smith 6-S Livestock.
        We welcome you. We are going to start off. We will go back
    and forth from majority witness to minority witness so we get
    on the one hand and on the other hand testimony. So we will
    start with Hon. Alexander Grannis, Commissioner, New York
    Department of Environmental Conservation.
        Welcome, sir.

        STATEMENT OF ALEXANDER GRANNIS, COMMISSIONER, NEW YORK
                DEPARTMENT OF ENVIRONMENTAL CONSERVATION

        Mr. Grannis. Good morning, Madam Chair.
        I am very pleased to be here on behalf of the department
    that I head and also the State of New York. As you stated, I am
    the Commissioner of the State Department of Environmental
    Conservation. Obviously, this matter is of great importance to
    the people of New York.
        The Clean Water Act has been integral to the protection of
    our Nation's water for more than 30 years, as you acknowledged
    in your opening statement. Unfortunately, rulings by the U.S.
    Supreme Court in the SWANCC case and the Rapanos case have put
    those longstanding protections in jeopardy. That is precisely
    why we are here today to voice our strong support for S. 1870,
    the Clean Water Restoration Act of 2007.
        As you noted, for 35 years the Clean Water Act was
    understood as regulating the discharge of pollutants, including
    fill, in the traditional navigable waters and 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 EPA and the Army Corps, as Administrator
    Browner just testified to.
        More precisely, it was embodied in the regulatory
    definition of the term ``waters of the United States,'' a legal
    definition that is fundamental to the scope and jurisdiction of
    the Clean Water Act. New York and the vast majority of States
    have expressed strong support for the EPA and Army Corps'
    longstanding position on the broad scope of the Clean Water
    Act. As you mentioned, 34 States and the District of Columbia
    filed an amicus brief before the Supreme Court which supported
    this regulatory definition during the Rapanos proceedings. The
    position advocated in the States' amicus brief is essentially
    identical to that presented by the Clean Water Restoration Act.
        New York, over time, has lost an estimated 60 percent of
    the wetlands since its early colonial times. Many other States
    have suffered even greater losses. The member from Louisiana
    has been talking about that, and this has been an issue across
    the Country. Restoration efforts are costly, difficult and
    time-consuming.
        Our greatest fear is that once wetlands and the
    biodiversity which they foster are lost, it may be difficult,
    if not downright impossible, to reestablish them. Preserving
    wetlands and small streams through effective Federal statutory
    and regulatory directives is environmentally beneficial,
    economically effective, and provides reasonable certainty to
    the regulated community.
        It is in our Nation's interest to protect the wetlands and
    small streams that remain, and to prevent the future need for
    costly restoration efforts. The Clean Water Restoration Act, we
    believe, is critical to achieving this goal. Wetlands generally
    drain into adjacent tributaries or other waters, and the health
    of the lower reaches of our watersheds rely on the vitality of
    up stream tributaries and their adjacent wetlands. Federal
    agencies must continue to apply the Clean Water Act to both
    non-navigable tributaries and to the wetlands adjacent to them.
    To do otherwise would undermine the Act's purpose of restoring
    and maintaining the physical, chemical and biological integrity
    of the Nation's waters.
        For 35 years, the States have relied on the Act's core
    provisions and have structured their own water pollution
    programs accordingly. We have done so in New York. While States
    play a vital role in administering parts of the Act, being
    forced to assume the role of sole responsibility for regulating
    activities on wetlands adjacent to the non-navigable
    tributaries and smaller streams would be a very heavy burden.
        New York State benefits from some of the most extraordinary
    water resources in the Country. Industries have located in our
    State because of our water supply. Tourism and recreation
    thrive along our waterways. Protecting these resources can save
    money. New York City's successful effort to avoid building an
    $8 billion water filtration plant is based in large part on
    protecting and restoring these resources.
        The fact is that none of the improvements made to New
    York's water resources over the last 35 years could have
    occurred without the active participation and partnership with
    the Federal Government. We need to continue the Federal role in
    this partnership. By reaffirming and articulating the original
    intent of the Clean Water Act, S. 1870 effectively frames the
    Federal role in wetland and small steam regulation and ensures
    that New York and other States once again be able to work
    together to protect and enhance these essential resources.
        It is for these reasons, Madam Chair, that we strongly
    support enactment of S. 1870. Thank you.
        [The prepared statement of Mr. Grannis follows:]

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        Senator Boxer. Thank you very much, Mr. Grannis.
        Now, let's turn to Mr. Brand, who is Sanitary Engineer,
    Madison County, State of Ohio. We welcome you, sir.

    STATEMENT OF DAVID P. BRAND, SANITARY ENGINEER, MADISON COUNTY,
                             STATE OF OHIO

        Mr. Brand. Thank you, Madam Chairman, Ranking Member
    Inhofe, distinguished members of the Committee. Thank you for
    the opportunity to testify on behalf of the National
    Association of Counties and the National Association of County
    Engineers. My name is David Brand. I am an elected County
    Engineer from Ohio. We elect our engineers in Ohio.
        My county is a rural county. It is under 50,000 in
    population. It is a high-producing agricultural county and has
    a farmland preservation plan and relies on systematic drainage
    and county-maintained ditches to protect the farming community.
    As County Engineer, I maintain 343 miles of roads, 180 bridges,
    200 miles of drainage improvements outside the public road
    right-of-ways. As Sanitary Engineer, I provide sanitary service
    to three sewer districts. I wear a few hats. I have a few
    titles. I hold a few professional registrations and I have just
    a few employees, 35. It is something we pride ourselves at the
    local level, doing more with less.
        As I stated before, I am here on behalf of NACo and NACE.
    Both groups have strong concerns with S. 1870, the Clean Water
    Restoration Act. Our Nation's counties believe in the Clean
    Water Act. We believe in its accomplishments and we believe it
    was instrumental in clearing our waterways.
        But rather than cleaning up our waterways further, we are
    concerned that the Clean Water Restoration Act moves far beyond
    this universally agreed principle. NACo and NACE believe the
    Clean Water Restoration Act would preempt State and local
    government authorities, cause unfunded mandates, create more
    paperwork, without--and I repeat without--enhancing
    environmental protection of waterways and wetlands.
        The Clean Water Restoration Act proposes to take out one
    single word, navigable, from the Act, and seemingly it is a
    simple thing to do. However, the word navigable is important
    for several reasons. The term was instrumental in the Rivers
    and Harbors Act of 1899. The term navigable was used to
    differentiate between Federal and State waters. The Clean Water
    Act uses the word navigable nearly 100 times. It was
    purposefully used.
        One of the basic tenets of NACo philosophy centers on State
    and local government responsibility to oversee State and local
    planning, policies, processes and decisions. More than 2,200 of
    our Nation's 3,066 counties are considered rural, under that
    50,000 population mark. Local governments, especially those in
    the rural category, provide many services on limited budgets
    with part-time elected officials in most cases, and minimal
    support staff. They stretch their budgets over a wide variety
    of mandatory expenses, from education, public welfare, health
    care, highways, police and fire, and they provide direct
    services to our citizens. They are the first line of defense.
    It is where the rubber meets the road.
        What this bill would essentially do, especially for the 404
    permit program, is create more paperwork. This is problematic
    for those rural counties who have the minimal staff, and can't
    hire the consultants to do the required paperwork. As written,
    the bill leaves many more questions than answers. It does
    nothing about clean water. It only dooms us to more legal
    wrangling at the Federal level and uncertainty at the local
    level.
        NACo recognizes that the current system is not ideal. Our
    counties would like to have certainty in the jurisdictional
    process and overall clean water legislation. We also recognize
    that a one size fits all system will not work. Geographic
    differences vary widely across the Country, and the Federal
    plan needs to take into account these regional differences and
    plan accordingly with flexibility.
        Unfortunately, the bill doesn't bring us any closer to the
    goal of clean water. In my community, partnerships altered
    locally require stormwater detention basins to make them water
    quality ponds. This wasn't done with Federal involvement. It
    was done by local government without any cost to Federal
    Government.
        Local governments are doing that across the Country. This
    is where the Clean Water Act is being achieved, at the local
    level with local flexibility. The counties are committed to
    keeping our waterways safe for generations to come, and we
    believe in the objective of clean water and we believe it is
    attainable. However, it is going to take a variety of methods
    to achieve that goal.
        We need strong partnerships in all levels of government,
    flexibility, workable definitions that don't burden local
    governments, and incentives to bring all levels of local
    government and State government to the table like the original
    Clean Water Act did. We have ideas and we would like to share
    them. We would like to move forward. With Chairman Oberstar, we
    think we can build this effective partnership among all levels
    of government for this purpose.
        We look forward to working with you, and I would love to
    entertain any questions.
        Thank you.
        [The prepared statement of Mr. Brand follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Boxer. Thank you, sir, very much.
        So we are going to move now to Joan Card. Joan Card is the
    Water Quality Division Director from the Arizona Department of
    Environmental Quality.
        We welcome you.

       STATEMENT OF JOAN CARD, WATER QUALITY DIVISION DIRECTOR,
              ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY

        Ms. Card. Thank you very much, Madam Chair and members of
    the Committee. Thank you for the opportunity to testify today
    regarding S. 1870, the Clean Water Restoration Act of 2007.
        The Arizona Department of Environmental Quality implements
    a number of water quality protection programs in our State,
    including the Clean Water Act. Arizona's Governor, Governor
    Janet Napolitano, issued a letter of support for the
    legislation and we thank Senator Feingold and the co-sponsors
    in this Committee for your leadership in this matter of great
    importance to our State.
        The Arizona Department of Environmental Quality has very
    serious concerns about the potential impact of the 2006
    plurality decision in the Rapanos and Carabell cases on Clean
    Water Act programs in Arizona. The decision could minimize, if
    not devaState, surface water quality protections that have been
    implemented in Arizona at least since the 1972 amendments.
        While the decision alone is of grave concern, the
    implementation guidance jointly issued by the EPA and Army
    Corps of Engineers 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, which is the
    NPDES program, point-source permitting protections for
    ephemeral and intermittent or non-perennial waters and our
    headwaters streams. Ephemeral waters, as you may know, are
    those streams that contain surface flow only in response to
    precipitation and intermittent waters of those streams that
    contain continuous surface flow only part of a year, for
    example from a seasonal spring or a response to snow-melt.
    Arizona's landscape includes a vast network of these non-
    perennial streams.
        Arizona's largest water body, second in size only to the
    perennial-flowing Colorado River, which forms our western
    border that we share with Nevada and California, 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 very wet
    years, but in time of long-term droughts, 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, the Santa Cruz and the 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 fastest-
    growing county in the Nation--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 their
    neighborhoods.
        These facilities currently hold Clean Water Act point
    source permits for discharges of wastewater that are protective
    of aquatic life, agriculture irrigation, and 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. Arizona law prohibits my agency from being more stringent
    than the Federal Clean Water Act.
        Arizona's non-perennial stream water quality has benefited
    from Clean Water Act protection since the early 1970's when 402
    point source permits were issued for several facilities
    discharging wastewater to large 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 have described.
        Combined, these facilities treat over 200 million gallons
    per day of municipal and industrial sewage and still discharge
    these large ephemeral waters under 402 point source permits.
    The Rapanos decision, and principally the 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 permits.
        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, which has been deemed
    by the Army Corps of Engineers as Arizona's only traditionally
    navigable water.
        Without these Federal Clean Water Act protections, which
    have been in place in Arizona for 35 years, my agency may not
    be able to protect Arizona streams for aquatic life uses,
    including 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
    protect wastewater discharges to our most pristine, high-
    quality streams like Sabino Creek and the Little Colorado
    River.
        Our Governor and the Arizona Department of Environmental
    Quality support the Clean Water Act Restoration Act of 2007
    because it ensures the longstanding, pre-Rapanos Clean Water
    Act protections and programs remain in place to protect the
    surface water resources of our State.
        Thank you.
        [The prepared statement of Ms. Card follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Boxer. Thank you very much.
        And finally, our last but not least witness is Randall
    Smith, Smith 6-S Livestock. Welcome.

           STATEMENT OF RANDALL P. SMITH, SMITH 6-S LIVESTOCK

        Mr. Smith. Thank you, Chairwoman Boxer, Ranking Member
    Inhofe, members of the Committee. My name is Randy Smith. I am
    a cattle rancher from Glen, Montana. I am the Chairman of the
    Big Hole Watershed Committee in southwestern Montana. I
    appreciate this opportunity to provide testimony regarding the
    jurisdiction of the Clean Water Act.
        As a member of the National Cattlemen's Beef Association
    and the Montana Stock Grower's Association, I am proud of our
    industry's tradition as stewards and conservators of America's
    land, air and water. Cattlemen work hard every day to protect
    these precious resources.
        My comments today address efforts to redefine the
    jurisdiction of the Clean Water Act. NCBA and MSGA do not agree
    with Senator Feingold that his bill restores congressional
    intent regarding the extent of Federal jurisdiction over our
    waters. Instead, the bill ignores congressional intent and
    greatly expands the Federal jurisdiction far beyond anything
    Congress imagined at the time of enactment.
        U.S. cattlemen own and manage nearly one-third of all the
    acreage in the continental United States, more land than any
    other segment of agriculture or any other industry. Therefore,
    any change in the definition of waters of the United States
    directly affects many cattlemen because they operate on much of
    the land where wet areas are located. Deleting the word
    navigable from the definition of waters of the United States
    would have a profound and negative affect on America's beef
    cattle business. This bill would result in the imposition of
    huge financial burdens on farmers and ranchers, and would take
    away private property rights to the productive use of their
    land, and would do little to better our environment.
        It is one thing to regulate navigable waters and wetlands
    that have significant nexus to those waters because they have a
    true environmental value. It is another thing to regulate every
    wet area or potentially wet area simply because it is wet,
    regardless of the fact that these areas provide very little, if
    any, environmental value.
        To think that a rancher would be forced to get a section
    404 permit whenever a cow stepped in a dry wash or a puddle is
    nothing less than shocking. Cattle producers support a
    reasonable program for conserving and enhancing waters that
    have true environmental value. We believe such waters are
    currently being protected by State and Federal Governments. Any
    clarification of jurisdiction should take place within our
    regulatory process, not Congress. The EPA and the Army Corps of
    Engineers are very capable of doing this work. There is no need
    for this legislation.
        Many cattle producers also voluntarily implement
    conservation practices in an effort to be as environmentally
    friendly as possible in their operations. Just one example is
    EQIP, which has invested billions of dollars in water quality
    projects. Farmers and ranchers are excellent stewards of their
    land and natural resources water. Their livelihoods depend on
    it. They should be enabled and encouraged through programs like
    these to continue to produce our Nation's food and fiber in an
    environmentally sound and sustainable way.
        The Big Hole Watershed Committee is just one example in
    Montana of a voluntary effort involving diverse interests,
    including Federal agencies, State agencies, county government,
    wildlife, conservation and agricultural groups coming together
    to work toward a goal of a cleaner and more plentiful water
    supply. State and local partners have been critical to our
    success. This legislation would take away their seat at the
    table. All authority over our Nation's water would be given to
    the Federal Government.
        Cattle producers agree that we need to continue to protect
    the quality of our Nation's surface and groundwaters. But, no
    expansion of Federal jurisdiction is necessary to accomplish
    this goal. Federal agencies already have ample authority under
    existing law to protect water quality. It is essential that the
    partnership between the Federal and State levels of government
    be maintained so that States can continue to have the essential
    flexibility to do their own land and water use planning. Any
    attempt at usurping authority over these issues and vastly
    expanding Federal jurisdiction must not be allowed.
        Thank you.
        [The prepared statement of Mr. Smith follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Boxer. Thank you.
        Sir, Mr. Smith, I just feel like, in all due respect, you
    may have missed the savings clause in the Feingold bill. Let me
    read it to you because what you say is now you are going to
    have to get a permit for it, is explicitly an exception here.
    So let me tell you what I am talking about.
        You do not have to get a permit under the Feingold bill and
    under current law for a wetlands permit if you are doing normal
    farming, ranching activities such as plowing, seeding,
    cultivating, minor drainage, harvesting for the production of
    food, fiber, forest products or upland soil and water
    conservation practices.
        You don't need it for the purpose of maintenance, including
    emergency reconstruction of recently damaged parts, of
    currently serviceable structures such a dikes, dams, levees,
    riprap, breakwaters. I am not reading it all.
        You don't need a permit for the purpose of construction or
    maintenance of farm or stock ponds or irrigation ditches or the
    maintenance of drainage ditches. You don't need it for the
    purpose of construction of temporary sedimentation basins or
    construction sites, which does not include placement of fill
    into the navigable waters. You don't need it for the purpose of
    construction or maintenance of farm roads or forest roads or
    temporary roads.
        It goes on and on. And you don't need a permit if your
    activity results from any activity with respect to which a
    State has an approved program. So the way you describe it, I
    couldn't support the Feingold bill, but that is not what the
    Feingold bill does.
        I would ask Mr. Grannis and Ms. Card, who support the bill,
    is that your understanding, that there is this savings clause
    and that these things are not going to have to get a permit?
        Ms. Card. Yes, Madam Chairman, I agree.
        Senator Boxer. That was important.
        Mr. Grannis.
        Mr. Grannis. We definitely agree. We have farming interests
    in New York, business interests, and they have all lived with
    the existing authority, both at the Federal Government and the
    State Government, over our wetlands.
        Senator Boxer. Yes, that is the point. And agriculture is
    my biggest industry in my State. So clearly, I hope, Mr. Smith,
    maybe if you would be willing to meet with us, we want to show
    you this. We would like to reassure you of this.
        And I would say to Mr. Brand, your position, it seems to
    me, will result in a situation where water pollution may not be
    controlled at the source, and local governments will have to
    shoulder the cost of more expensive drinking water treatment
    and infrastructure. I don't understand why anyone in local
    government--and I came from local government--would want your
    county to have to pay for the extra infrastructure necessary to
    clean up water that our families depend upon.
        Would you agree with that, that this is a consequence if we
    step out of this, then you are going to have to be the one?
    Because you know, Senator Whitehouse--really I appreciated what
    he put in the record, showed how many systems are at risk that
    serve our families, in my case many millions. And now if we
    don't apply this Act, somebody is going to have to clean this
    up at the end of the day if you find that polluters are dumping
    toxins into these previously covered waters.
        So that would be just really more a comment that I hope
    that our folks who oppose this will take a look at what you are
    opening up here, which is much more costs for local government,
    local people. I think if we continue in this limbo that it is
    going to be very difficult to figure this out.
        In any case, that is more a statement than a question.
        Senator Barrasso.
        Senator Barrasso. Thank you very much, Madam Chairman.
        I would just like the record to reflect that of all of us
    here, the only guy that brought his own water with him was the
    rancher from Montana.
        [Laughter.]
        Senator Barrasso. So thank you, Mr. Smith.
        Senator Boxer. He doesn't trust our water at the Capitol.
        Senator Barrasso. No, ma'am. He knows more about it than we
    do.
        Senator Boxer. I think we ought to change what we do up
    here maybe.
        [Laughter.]
        Senator Barrasso. Mr. Smith, I appreciate your being here
    because I read the bill the same way you do, what it does to
    the ranchers and water users in Wyoming. I am just wondering if
    Wyoming as well as Montana, strong ranching industries, and
    Idaho, can you further elaborate on what you as a rancher, and
    Wyoming ranchers, can expect in terms of just day to day
    operations of your ranches if this bill is passed?
        Mr. Smith. Senator, I guess we really don't know what the
    bill is going to do. It frightens me because it is taking away
    local control. Yes, the Clean Water Act has worked, but it is
    being defined more critically, I guess, for lack of a better
    word. To take out the navigable part of the streams just opens
    up a whole can of worms.
        On our ranch, which isn't a large ranch, but we are a
    family ranch, I can see the potential for hundreds, if not
    thousands, of permits if this bill was passed. The time of
    getting those permits from the Federal Government right now is
    terribly slow at best, and it always has been slow. I guess
    there is some sort of fast track movement within the Corps of
    Engineers, but in our watershed committee, just to do some
    watershed work along the Big Hole River, it has taken several
    months to get permits, maybe even almost a year just for doing
    water quality work.
        So it is a terrible effect on the ranching community, in my
    opinion.
        Senator Barrasso. The Wyoming Stock Growers wrote to me and
    they say their opinion is that the expansion of Federal
    jurisdiction in this bill would effectively give the Federal
    Government an authority over private lands in Wyoming and
    obviously in Montana as well, and over the ranches, kind of
    equal to the authority that are currently exercised over public
    lands and national forests. Is that your concern as well?
        Mr. Smith. Yes. We maintain our water systems on a lot of
    our Federal land out of necessity. If we had to, for instance,
    have a permit for the cows to cross a stream, every time they
    crossed a stream, you can see it is a little bit ridiculous.
    Maybe it is mind-boggling, I don't know, to me, it certainly
    doesn't have much common sense.
        There may be areas in the Country where we need to have
    this sort of legislation, but out west, we don't need it.
        Senator Barrasso. And this is something you wouldn't want
    to have to go to the courts, go to a judge, and try to deal
    with it on a day to day basis, and make your life very
    difficult, I would imagine.
        Mr. Smith. Yes. Every time we do anything, it seems like it
    is litigated. And this looks to me like it is a dream for a
    litigator, a lawyer's dream. I don't want to offend anybody,
    but we use lawyers enough already and sometimes the best
    interests aren't always followed.
        Senator Barrasso. Thank you, Madam Chairman.
        Senator Whitehouse. I would like to ask Mr. Brand and Mr.
    Smith a very simple question. If it were clear and without
    dispute that the entire purpose and function of the Clean Water
    Restoration Act was simply to restore the Clean Water Act to
    running exactly the way it had for all those years before the
    Rapanos decision created this uncertainty about what
    navigability meant, would you object to that? Are you objecting
    to the underlying traditions of the Clean Water Act?
        Mr. Brand. I guess the question I would have back is----
        Senator Whitehouse. Answer my question before you ask a
    question back.
        Mr. Brand. The Clean Water Act has been interpreted
    differently depending on what year you are asking about. The
    Clean Water Act has seen most of its change in interpretation
    occur in the last 10 years. In the last 10 years, it is very
    different from when it was originally enacted and the problems
    are very different.
        Senator Whitehouse. I guess my question is, are you arguing
    that this piece of legislation would create something new that
    you don't like? Or if you would accept the proposition that
    this just goes back to the way things were beforehand, are you
    objecting also the way things were beforehand? Are you
    objecting to the underlying Clean Water Act as it was enforced
    before the Rapanos decision?
        Mr. Brand. I don't think we are objecting to the Clean
    Water Act, but the interpretation of the Act is very different
    and we do not buy in one bit to the fact that this is restoring
    some protection that was already there. This is clearly an
    expansion. So if we can get past that and define clearly what
    the limits were of the Clean Water Act prior to Rapanos, I
    think we could answer that question.
        But I think to say that enough times and to keep repeating
    that doesn't make it true that the Act has changed over the
    years, and what you are saying you are going back to never
    existed until the last few years.
        Senator Whitehouse. Well, it actually kind of does make it
    true, because the way courts would look at this is they would
    take the language and they would want to see what the
    congressional intent was in this. In trying to divine
    congressional intent, they would look at the legislative
    history of the Act.
        And when they look at the legislative history of the Act,
    they are going to look at what you are saying right here in
    this room today. They are going to look at what I am saying
    right here in this room today. They are going to look at the
    record of this hearing, and the record of this hearing could
    not be more indisputably clear that the only intention of this
    piece of legislation is to go back to the status quo ante
    before the Rapanos decision and reinState the Clean Water Act
    as it had been enforced for those 34 years.
        I think nobody with a rational power of observation and any
    kind of honorable intent toward the process of this could
    dispute that is what we are trying to get to. And certainly I
    think any court looking back would see that loud and clear. I
    appreciate my friends on the other side raising this point and
    challenging it because it gives us the opportunity here to
    reinforce over and over again, and reinforce the legislative
    history that a court will look at that all we are trying to do
    is to go back before the status quo ante and pick up where we
    left off, with a train of analysis and precedent that
    regulators in Arizona for many years--I see Ms. Card nodding
    her head--regulators in New York for many years, they knew
    exactly what they were doing. The developers knew what they
    were doing. The lawyers who tried to work this knew what they
    were doing.
        It would create enormous clarity, in my view, if that were
    the understanding. Is that of value that you as regulators, Ms.
    Card and Mr. Grannis, are trying to achieve here, is to go back
    and sort of recapture the legislative history, the precedent
    that had built up around the previous Clean Water Act and
    continue forward in an undisturbed way?
        Ms. Card. That is absolutely correct. If I could just say
    to suggest that this legislation is a can of worms and an
    unprecedented expansion is frankly just not a recognition of
    the last 35 years. For example, in Arizona the Federal District
    Court in 1975 regarding point source pollution from a hard-rock
    mine said a legal definition of navigable waters or waters of
    the U.S. within the scope of the Act includes any waterway
    within the U.S., also including normally dry arroyos through
    which water may flow, where such water will ultimately end up
    in public water such as a river or stream tributary, et cetera,
    et cetera.
        That is a 1975 Arizona District Court opinion that set the
    stage for the last 30 and more years for us to protect
    waterways against pollution under the Clean Water Act.
        Mr. Brand. Madam Chairman, if I may?
        Senator Boxer. Certainly.
        Mr. Brand. I believe, Senator, that the Rapanos decision
    did that. They looked at the legislation and they came down and
    said that it was clearly an expansion beyond repute. The
    problem with the Rapanos decision is that it threw this
    significant nexus test in there which muddied the waters. That
    is the problem we have, is the significant nexus.
        It is not that the significant nexus test is inappropriate.
    It is that has caused the environmental agencies to turn around
    and try and find out how far ``significant'' can be pushed to
    create some kind of nexus between that isolated wetland in the
    middle of that field that may not be anything more than a
    replant area in a bean field, and try and establish through not
    point source pollution, but through non-point source pollution
    that it has some connection to some stream which has some
    connection to some navigable water, and then exercise control
    over it. The court did make that clarification. They have done
    that.
        Senator Whitehouse. Mr. Brand, I hear you saying these
    things, and even from my own experience as an Attorney General
    and working in the Governor's office in my State, I just know
    them not to be true. I just know them not to be true. It is
    discouraging to me to hear you say that there has been a
    tradition of trying to develop the Clean Water Act from its
    very beginnings. All the way through, the question of
    navigability ha always been an important question. It was
    resolved over the years through endless administrative
    determinations that were able to create the connection that was
    important here between the safety of the water you and I drink
    and the regulatory reach of this statute.
        It is a very natural connection. This is to protect clean
    water. We drink clean water. What could be more natural than to
    have the regulatory reach of the statute protecting clean water
    reach as far as what is necessary to make sure that the water
    we drink is clean? There aren't puddles in bean fields being
    regulated and never have been under this. It has always had
    this clean water protection purpose.
        Maybe there is some crazy place where this happens, but in
    no regulatory agency I have ever been around or near has that
    ever happened. What I worry about is that if we don't go back
    to where we were before, then we are trying to redefine
    something. And in that redefinition, there is going to be
    enormous room for both mischief and mistake and for lawyers to
    come into this and complicate life, and have to go back and re-
    litigate issues that were settled.
        I feel really badly. I think, Mr. Smith, you seem like an
    absolutely wonderful man. I think if we were in another forum,
    I would love to go out and sit down and have a beer with you or
    have a walk with you, or let you show me your farm. You sound
    like just a wonderful, wonderful guy. And yet, what you say
    about this piece of legislation bears absolutely no
    relationship to the reality of this legislation as I know and
    believe it to be.
        I guess all I can say from my perspective here is that I
    hope the regulators here will chime in because you live with
    this all the time. The purpose of the exercise here is to
    protect the water that we drink. For 34 years, people who are
    Republicans and Democrats worked terribly hard to try to make
    it right to do that. The EPA has no interest in chasing around
    cow puddles that don't affect anybody's clean water. They have
    better things to do. They have limited resources. They try to
    target this stuff.
        I just think that we create such risk of confusion, of
    mischief, of damage, of danger to clean water, of all these
    things, if we don't pick up where we left off, with what has
    been done by professionals in Democratic and Republican
    Administrations for decades.
        It is frustrating to me to hear these worries, because I
    know they are heartfelt. I know you have these concerns. I wish
    there were a way I could more clearly reassure you that they
    just make no sense at all, at least from this Senator's
    perspective.
        Mr. Grannis could you--I see both of the regulators nodding
    their heads.
        Senator Boxer. Sure. And I will say, Senator Barrasso----
        Senator Whitehouse. I apologize for going over.
        Senator Boxer. No, that is all right. We will make it a
    closing statement and we will give that opportunity to Senator
    Barrasso, and then I will make my final remarks.
        Mr. Grannis. Senator, we agree completely. Our goal here is
    not to expand our jurisdictional authority. It really is to go
    back to the pre-Rapanos effective collaboration we have had
    with the Federal Government for over 30 years. It has had
    remarkable results in cleaning up our water.
        Our water knows no jurisdictional boundaries. It is not
    partisan. It starts in the Adirondacks. It starts at the
    headwaters of the Susquehanna River and the Delaware River.
    What we do in those northern headwaters in wetland protections
    and other kinds of things have their effects 300 miles down
    river. So it is very important to make sure there is a Federal
    floor on what people do along these great waterways,
    recognizing the interconnection of all of these smaller
    tributaries, whether they flow full-time or part-time in
    wetlands to the overall good of the water quality. That is our
    goal.
        We are not seeking new authority, expanded authority. We
    are happy and I think very effective with the authority we
    have, and that is where we want to end up.
        Senator Boxer. Senator Barrasso.
        Senator Barrasso. Thank you very much, Madam Chairman.
        Just to say from my opening statement, in Wyoming where the
    frontier spirit of smaller government and individual liberty
    are still sacred traditions, where we have a State of people
    like Mr. Smith, we are always very concerned about the Federal
    Government's involvement in issues, and most specifically
    related to our water.
        We read these bills very carefully. We think about them
    very carefully, and we see all of the things that Ms. Smith
    testified today as potential downside risks and we don't see
    any up-side benefit to the hard-working ranchers of our
    communities.
        Thank you, Madam Chairman.
        Senator Boxer. I would say that in our State, we don't have
    a theology about who should make sure that the water is safe
    and clean, but we want it clean. And the most efficient way to
    do that is what we ought to do. I would argue after Rapanos
    there is such confusion that even the people who didn't like
    the whole system before are begging for it back. These are
    anecdotal now, but I put something in the record about that.
        So I think what Russ Feingold has done, and I praise him
    mightily for it, is he wants to protect our water quality in a
    way that works, that goes back to the way it was done, keeps
    the same exemptions in there so that folks like Mr. Smith are
    not going to be burdened when they are working their farms. He
    brings certainty back to a situation where projects ironically
    are being delayed because nobody knows what anybody meant. That
    is extremely ironic that the views of the people who say let's
    weaken the Clean Water Act resulting in longer delays to get
    projects built because of the confusion.
        So I am very hopeful we can work together. I don't know
    that there is room here. I know we are going to try to get this
    resolved legislatively. If it not going to happen this session
    of Congress, I predict to you it will happen in the future.
        I just want to say to this panel, you have all been really
    helpful to us. You have been clear, straightforward, and we
    really appreciate your all coming here at I am sure some
    inconvenience. You did that for your Country and we appreciate
    it very much.
        Thank you all.
        We stand adjourned.
        [Whereupon, at 12:03 p.m. the committee was adjourned.]

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