[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

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                                                                   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:]


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    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:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    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:]


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    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:]


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    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:]


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    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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