[Congressional Record Volume 155, Number 56 (Thursday, April 2, 2009)]
[Senate]
[Pages S4317-S4319]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself, Mrs. Boxer, Mr. Cardin, Mr. Brown, 
        Ms. Cantwell. Mr. Carper, Mr. Dodd, Mr. Durbin, Mrs. 
        Gillibrand, Mr. Kerry, Mr. Kohl, Mr. Lautenberg, Mr. Leahy, Mr. 
        Levin, Mr. Lieberman, Mr. Menendez, Mr. Merkley, Mr. Reed, Mr. 
        Sanders, Mr. Schumer, Mrs. Shaheen, Ms. Stabenow, Mr. 
        Whitehouse, and Mr. Wyden):
  S. 787. A bill to amend the Federal Water Pollution Control Act to 
clarify the jurisdiction of the United States over waters of the United 
States; to the Committee on Environment and Public Works.
  Mr. FEINGOLD. Mr. President, today I am introducing legislation to 
restore Clean Water Act protections for the same waters that were 
covered by the Act prior to two recent divisive U.S. Supreme Court 
decisions. I want to thank Senators Boxer, Cardin, Brown, Cantwell, 
Carper, Dodd, Durbin, Gillibrand, Kerry, Kohl, Lautenberg, Leahy, 
Levin, Lieberman, Menendez, Merkley, Reed, Sanders, Schumer, Shaheen, 
Stabenow, Whitehouse, and Wyden for joining me in introducing this 
important legislation.
  For 35 years, the American people have relied upon the Clean Water 
Act to protect and restore the health of the Nation's waters. The 
primary goal of the act to make rivers, streams, wetlands, lakes, and 
coastal waters safe for fishing, swimming and other recreation, 
suitable for our drinking water supply and agricultural and industrial 
uses, and available for wildlife and fish habitat has broad public 
support not only as a worthy endeavor but also as a fundamental 
expectation of Government providing for its citizens. It is our 
responsibility to ensure that our freshwater resources are able to 
enhance human health, contribute to the economy, and help the 
environment.
  We must remain committed to the Clean Water Act of 1972, and to that 
end, Congress must enact legislation. Every day that Congress fails to 
act, more and more rivers, streams, wetlands and other waters that have 
long

[[Page S4318]]

been protected by the Clean Water Act are being stripped of their Clean 
Water Act protections and being polluted or destroyed altogether. 
According to the Environmental Protection Agency, over 20,000 
determinations have been made since the court decisions on whether 
specific water bodies are covered by the act. Congress should not delay 
action until protections are stripped from more water bodies throughout 
the country. The EPA estimates that the court decisions could 
ultimately impact over half the stream miles and 20 percent of wetlands 
in the lower 48 States. Lost protections for these waters means the 
drinking water sources for over 110 million Americans are in jeopardy 
of pollution.
  The Clean Water Restoration Act must be enacted to restore historical 
protections, using a surgical fix that reaffirms protections for the 
same categories of waters identified in the over three-decade-old EPA 
regulatory definition of ``waters of the United States.''
  This is a serious problem, demanding serious debate and action. If we 
do not act, we will be allowing the Clean Water Act to be rolled back. 
That would mean increased uncertainty, confusion, litigation, and 
permitting delays resulting from the court decisions and subsequent 
agency guidelines. It also would pose a very real threat to Clean Water 
Act protections for public water supplies, industrial and agriculture 
uses, fish and wildlife, and recreation.
  I am pleased to lead the effort to protect the Clean Water Act in the 
Senate, and to have support from a range of interested parties, 
including former EPA Administrators from both Republican and Democratic 
administrations; governors; attorneys general; State agencies; 
professional societies and associations; labor and business 
professionals and unions; farming organizations; and over 400 hunting, 
fishing, recreational, and conservation organizations.
  In response to suggestions I received last Congress, I made several 
revisions to the bill to make Congressional intent very clear.
  My bill, the Clean Water Restoration Act, would continue to protect 
only those waters historically protected by the Clean Water Act prior 
to the Supreme Court decisions. This is the crux of my bill, Section 4. 
In 1972, Congress granted Clean Water Act protections to ``navigable 
waters'' and broadly defined those as ``the waters of the United 
States, including the territorial seas'', in stark contrast to the 1899 
Rivers and Harbors Act, which had only provided protections for the 
commercially navigable waters. Since the 1970s, EPA and Corps 
regulations, 40 CFR 122.2 and 33 CFR 328.3, have properly established 
the scope of ``waters of the United States'' to be protected, including 
all intrastate and interstate rivers, streams, lakes, and wetlands. My 
bill simply takes the longstanding, existing regulatory definition for 
``waters of the United States'' and puts it into law, in lieu of 
defining ``navigable waters'' as ``waters of the United States,'' as 
the Act does now. This surgical fix is necessary because the Supreme 
Court used the word ``navigable'' to create a more narrow definition 
for ``waters of the United States'' than the definition used for over 
30 years. The Court did not, however, limit protections more 
drastically to only ``navigable-in-fact'' and continuously flowing 
waters as some interests have called for. This might have been the law 
in 1899 when the Rivers and Harbors Act focused on commercial 
navigation, but it would be entirely inappropriate for the modern day 
clean water protections provided by the Clean Water Act of 1972.
  My bill also asserts appropriate constitutional authority to protect 
the Nation's waters. Despite claims to the contrary, Congress has broad 
constitutional authority, including under the Commerce Clause, Property 
Clause, Treaty Clause, and Necessary and Proper Clause, to enact laws 
protecting our nation's water quality. To prevent future courts from 
narrowly applying Congress's constitutional authority, my bill includes 
the phrase ``activities affecting those waters.''
  My bill also maintains existing exemptions for farming, silviculture, 
ranching, and other activities, and leaves unchanged the activities 
that require a permit. The bill only ensures that the same types of 
waters covered before the Supreme Court decisions continue to be 
protected and does not affect the activities that require permits. In 
short, if you have not needed a permit for the last thirty-five years 
for an activity, you will not need one when this bill is enacted.
  Importantly, in 1977, when the Act was modified, a significant 
compromise was reached to exempt farming, silviculture, and forestry 
activities from the Act. I stand by this understanding, and just to be 
sure, the Clean Water Restoration Act explicitly states that the Act's 
existing exemptions are maintained. As stated in the Act and left 
unchanged by my bill, agricultural activities are largely exempt from 
the Clean Water Act [the main permitting programs affecting agriculture 
address point-source discharge, Section 402, not non-point, and the 
dredging and filling of waters, Section 404. The following agricultural 
activities are exempt: normal farming activities (which casts a wide 
net for plowing, cultivating, harvesting, conservation practices, 
etc.), agriculture run-off/stormwater discharges, return flows from 
irrigation, maintenance and construction of farm roads, farm and stock 
ponds, and irrigation ditches, and maintenance of drainage ditches. 
There are additional EPA regulatory exemptions for prior converted 
cropland, and wastewater treatment systems, including treatment lagoons 
and ponds. Again, my bill does not affect these exemptions and the 
findings make Congressional intent very clear in this regard.
  In short, my bill will allow those waters always protected by the 
Clean Water Act to continue to receive basic protections. I appreciate 
the depth and breadth of support for reaffirming the Clean Water Act of 
1972 and importantly, rejecting efforts to roll back the law.
  Mr. WYDEN. Mr. President, If there is one environmental issue that 
divides us more than unites us, it's water, especially in the West.
  Farmers, ranchers, cities, towns, all compete for limited supplies. 
Salmon and other economically and culturally important fish depend on 
its flow. If it is not water quantity, then it is water quality that 
makes what gets passed on to the next water user the source of 
contention.
  The Clean Water Act has been enormously successful at making water 
users clean up the water that they use before it is discharged back 
into lakes, rivers, and streams, and, before it's used by the next 
person downstream. It has also helped ensure the survival of fish and 
wildlife.
  Over the past 8 years, the U.S. Supreme Court has rendered two major 
decisions that have restricted the scope of the Act. As it is now being 
interpreted by the U.S. Environmental Protection Agency and the Corps 
of Engineers, the Act no longer prevents the discharge of pollution or 
fill into many wetlands or intermittent streams, lakes and ponds. By 
some estimates, more than half the streams in Oregon could be 
classified as intermittent streams and no longer protected. Another 
estimate concludes that over one million Oregonians get their drinking 
water from sources that would no longer be fully protected by the Clean 
Water Act. I think this is the wrong thing to do.
  Last year, I cosponsored S. 1870--the Clean Water Restoration Act--
legislation which was intended to return the protections of the Clean 
Water Act to the way they were before these two Supreme Court decisions 
occurred. No more, and no less.
  In my town hall meetings around Oregon, I have received questions and 
complaints about this legislation. The biggest concern that many people 
had was that this new bill was actually going to expand the reach of 
the Federal Government over water regulation in ways that would 
literally threaten the ability of farmers to farm and ranchers to 
ranch. People were also concerned that this legislation would not only 
regulate discharges into rivers and streams, but it would also regulate 
the quantity of water they use.
  I am no supporter of Federal water grabs. I would not have 
cosponsored this legislation in the last Congress if it would threaten 
Oregon farmers' ability to farm or our ranchers' ability to ranch. I 
would have opposed it.
  Ranchers and farmers and forest owners know how to be stewards of the 
land they ranch and farm and manage because their livelihoods depend on 
it,

[[Page S4319]]

and if they are not careful about how they manage that land there will 
be nothing to pass on to the next generation. The same is true for how 
we must treat our rivers, streams and wetlands.
  So over the past few months, my staff and I have worked with Senator 
Feingold, the primary sponsor of the bill, to clarify that intent of 
this legislation is to simply restore the interpretation of the Clean 
Water Act to what it had been before these Supreme Court decisions. No 
more, and no less.
  Earlier this year, in response to my concerns about how the bill 
would impact rural Oregon, Senator Feingold reiterated in a letter to 
me his intent that the Clean Water Restoration Act not expand the scope 
of the law. Sen. Feingold also revised the text of the bill in a way 
that I believe makes it even clearer that the goal is not to expand the 
scope of the Clean Water Act beyond what it was in 2001 before the 
Supreme Court decisions.
  First of all, the bill again includes a savings clause that clearly 
continues the existing exemption for irrigation return flows from Clean 
Water Act regulation. It continues the exemption for dredged or fill 
materials from normal farming, silviculture and ranching activities. It 
continues the exemption for construction and maintenance of farm or 
stock ponds or irrigation ditches and drainage ditches. It continues 
the exemption for construction and maintenance of farm roads or forest 
roads.
  Second, the bill now contains a much more detailed set of findings 
that make it absolutely clear that the intent of Congress with 
enactment of the bill is to restore the regulatory system for the Clean 
Water Act to what it was before these two Supreme Court decisions. 
These findings also make it clear that the bill is not regulating 
ground water, only surface water, just as the Clean Water Act has 
always done. The findings make it clear that exclusions for prior 
converted cropland and manmade impoundments remain in place. They make 
it clear that the intent is to regulate water quality, not quantity or 
ownership.
  If more changes are needed to ensure that the bill does what Sen. 
Feingold and I say it does, than I am certainly open to making more 
changes to make sure the Senate gets this crucial issue right.
  Some people do not like the pre-2001 Clean Water Act regulatory 
system. Some believe that the Supreme Court did the right thing by 
removing many wetlands and intermittent streams and lakes from the 
protections of the Clean Water Act. I disagree. I think those 
protections are needed to protect our water supplies and our 
environment and wildlife habitat. Farmers and ranchers need those 
protections for their livelihoods. But I want to be absolutely clear, 
that I will not support expanding Federal authority in this area beyond 
what it was before 2001.
  Mr. President, I ask unanimous consent that a letter of support be 
printed in the Record.
  There being no objection, the material was ordered to be placed in 
the Record, as follows:

                                                  U.S. Senate,

                                  Washington, DC, January 8, 2009.
     Hon. Ron Wyden,
     U.S. Senate, Dirksen Senate Office Building,
     Washington, DC.
       Dear Senator Wyden: Thank you for your commitment to 
     reinstating longstanding Clean Water Act protections, which 
     have been unquestionably reduced and blurred by recent 
     Supreme Court decisions. I appreciate you contacting me on 
     behalf of your constituents with some important questions 
     about the intent and effect of my bill, the Clean Water 
     Restoration Act.
       Like you, I am committed to restoring the scope of the 
     Clean Water Act of 1972 and strongly oppose efforts to roll 
     back the Act--which is happening and will continue to happen 
     until Congress acts. A recent investigation by the House 
     Committee on Oversight and Government Reform and the 
     Committee on Transportation and Infrastructure found that the 
     2006 Rapanos case and subsequent agency guidance are directly 
     responsible for ``a drastic deterioration of [the 
     Environmental Protection Agency's] Clean Water Act 
     enforcement program . . . hundreds of violations have not 
     been pursued.'' The investigation revealed that top EPA 
     officials warned that ``the difficulty in interpreting and 
     applying the Rapanos decision and the Inter-Agency guidance 
     has created a drain on [EPA] resources, caused delays and 
     uncertainty in compliance determinations. . . .'' According 
     to the EPA, over 50 percent of U.S. streams, 20 million acres 
     of wetlands, and the drinking water for 110 million Americans 
     remain in jeopardy of being polluted or destroyed as a result 
     of the Supreme Court decisions.
       Since Congress is the only branch of government that can 
     reinstate protections and prevent a significant roll-back of 
     the Act. I introduced the Clean Water Restoration Act to do 
     just that, and only that.
       The bill will not increase permitting and does not change 
     the requirements for what activities need a permit. The Clean 
     Water Restoration Act would only modify one term in the Act 
     and does not alter any other sections of law, including those 
     identifying what activities need a permit. Nevertheless, when 
     the bill was reintroduced in the 110th Congress, we added a 
     savings clause to make it explicitly clear that the 
     exemptions for agriculture, ranching, and forestry are 
     maintained. The Act was amended in 1977 to add these 
     permitting exemptions and my bill will not change those 
     exemptions, or existing exemptions in the regulations that do 
     not require permits for agricultural activities affecting 
     prior converted cropland or for wastewater treatment systems.
       As you know, the Clean Water Act protects ``navigable 
     waters,'' which the Act broadly defines as ``waters of the 
     United States, including the territorial seas'' (though often 
     a source of confusion, the term ``navigable waters'' has a 
     very different meaning in the Clean Water Act than it does in 
     the Rivers and Harbors Act of 1899, which extends only very 
     narrow protections to commercially navigable waters). 
     ``Navigable waters'' and ``waters of the United States'' are 
     broadly defined, for purposes of the Clean Water Act, in the 
     Environmental Protection Agency and U.S. Army Corps of 
     Engineers' regulations to cover all waters necessary to 
     achieve the Act's water quality purposes. This includes such 
     so-called isolated wetlands as prairie potholes and playa 
     lakes, which have been jeopardized since the 2001 SWAIVCC 
     case, as well as intermittent streams, which remain 
     jeopardized by the 2006 Rapanos case and subsequent agency 
     guidance. In order to meet the intent and purpose of the 
     Clean Water Act of 1972, we must ensure all these waters 
     continue to be protected--which is why the Clean Water 
     Restoration Act defines ``waters of the United States'' using 
     the same list of waters.
       In your letter, you asked about an exchange at a hearing on 
     the bill in 2008 where the former Administrator of the EPA, 
     Carol Browner, responded to a question about whether a 
     ``puddle'' is a ``wetland.'' Though the question was likely 
     intended in jest, there is a longstanding, scientific process 
     for determining and delineating a wetland. Professional 
     determinations are made, for purposes of Section 404 of the 
     Clean Water Act, using the Corps regulatory definition of a 
     wetland. Wetlands generally include swamps, marshes, bogs, 
     and similar areas (33 CFR 328.3(b)).
       Lastly, the Clean Water Act does not regulate water 
     quantity, only water quality. Its purpose is to ``restore and 
     maintain the chemical, physical, and biological integrity of 
     the nation's waters'' (33 U.S.C. 1251 et seq.). I am pleased 
     to lead the effort to protect the Clean Water Act in the 
     Senate, and to have your support, as well as that of a range 
     of interested parties, including former EPA Administrators 
     from both Republican and Democratic administrations; 
     governors; attorneys general; state agencies; professional 
     societies and associations; labor and business professionals 
     and unions; farming organizations; and over 400 hunting. 
     fishing, recreational, and conservation organizations.
       Thanks for your efforts to educate others about the 
     importance of this legislation and the true purpose of the 
     Clean Water Restoration Act. As always. I am committed to 
     working with you and others to restore historical protections 
     to the waters of the United States.
           Sincerely,
                                              Russell D. Feingold.
                                 ______