[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 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: http://www.access.gpo.gov/ congress.senate __________ U.S. GOVERNMENT PRINTING OFFICE 85-527 PDF WASHINGTON : 2014 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800 DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS ONE HUNDRED TENTH CONGRESS SECOND SESSION BARBARA BOXER, California, Chairman MAX BAUCUS, Montana JAMES M. INHOFE, Oklahoma JOSEPH I. LIEBERMAN, Connecticut JOHN W. WARNER, Virginia THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio HILLARY RODHAM CLINTON, New York JOHNNY ISAKSON, Georgia FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana BENJAMIN L. CARDIN, Maryland JOHN BARRASSO, Wyoming BERNARD SANDERS, Vermont LARRY E. CRAIG, Idaho AMY KLOBUCHAR, Minnesota LAMAR ALEXANDER, Tennessee SHELDON WHITEHOUSE, Rhode Island CHRISTOPHER S. BOND, Missouri Bettina Poirier, Majority Staff Director and Chief Counsel Andrew Wheeler, Minority Staff Director C O N T E N T S ---------- Page APRIL 9, 2008 OPENING STATEMENTS Boxer, Hon. Barbara, U.S. Senator from the State of California... 1 Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 2 Baucus, Hon. Max , U.S. Senator from the State of Montana........ 5 Vitter, Hon. David, U.S. Senator from the State of Louisiana..... 7 Barrasso, Hon. John A., U.S. Senator from the State of Wyoming... 8 Isakson, Hon. Johnny, U.S. Senator from the State of Georgia..... 9 Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland 23 Craig, Hon. Larry E., U.S. Senator from the State of Idaho....... 25 WITNESSES Browner, Carol, Principal, The Albright Group, Former Administrator, U.S. Environmental Protection Agency............ 10 Prepared statement........................................... 12 Grannis, Alexander, Commissioner, New York Department of Environmental Conservation..................................... 33 Prepared statement........................................... 35 Brand, David P., Sanitary Engineer, Madison County, State of Ohio 42 Prepared statement........................................... 44 Card, Joan, Water Quality Division Director, Arizona Department of Environmental Quality....................................... 52 Prepared statement........................................... 54 Smith, Randall P., Smith 6-S Livestock........................... 58 Prepared statement........................................... 60 ADDITIONAL MATERIAL Statements: Virginia S. Albrecht, Hunters & William on Behalf of The Waters Advocacy Coalition.................................. 77 Waters Advocacy Coalition (WAC).............................. 95 American Forest & Paper Association.......................... 100 Arizona Municipal Water Users Association.................... 102 Associated Builders Contractors Inc.......................... 104 The Associated General Contractors of America................ 106 California Farm Bureau Federation............................ 115 The Nationwide Public Projects Coalition..................... 116 National Warter Resources Association........................ 118 Water Resources Coalition.................................... 119 Article; Big Hole River Drought and Grayling Recovery Project.... 121 LEGISLATIVE HEARING ON S. 1870, THE CLEAN WATER RESTORATION ACT OF 2007 ---------- WEDNESDAY, APRIL 9, 2008 U.S. Senate, Committee on Environment and Public Works, Washington, DC. The full committee met, pursuant to notice, at 10:03 a.m. in room 406, Dirksen Senate office Building, Hon. Barbara Boxer (chairman of the full committee) presiding. Present: Senators Boxer, Inhofe, Barrasso, Baucus, Cardin, Carper, Craig, Isakson, Vitter and Whitehouse. OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Boxer. The hearing will come to order. I am really sorry to be 3 minutes behind. I had another event I had to attend. Today, the Committee considers one of America's bedrock and most successful environmental statutes, the Clean Water Act. We will hear testimony on the Clean Water Restoration Act, a bill introduced by Senator Feingold, that would restore the protections of the Clean Water Act that have been jeopardized because of some activist members of the Supreme Court. Enacted just over 35 years ago, the Clean Water Act has a critically important purpose, ``To restore and maintain the chemical, physical and biological integrity of the Nation's waters.'' The protections of the Clean Water Act have helped restore thousands of lakes and rivers, streams and wetlands. It has helped protect the water supply for our families, provide essential habitat for fish and birds and other wildlife, but we have a long way to go. While all waters were not evaluated, according to the EPA's most recent national water quality inventory, 45 percent of assessed rivers and streams were impaired; 47 percent of lakes, ponds and reservoirs were impaired; and of the assessed bays and estuaries, 32 percent were impaired. With an ever-expanding population and the effects of global warming on our water supply, now is not the time to be weakening the Clean Water Act. But due to the intervention of some of the Justices of the Supreme Court, much of that progress is in jeopardy. In two decisions on the scope of Federal jurisdiction under the Clean Water Act, Solid Waste Agency of Northern Cook County v. Corps of Engineers in 2001, and Rapanos v. U.S. in 2006, the Supreme Court cast a shadow over nearly 30 years worth of expert agency interpretations in protecting America's waters. In Rapanos, the Supreme Court failed to provide clear guidance for when the Clean Water Act applied, publishing five conflicting opinions with no majority ruling. This case has created massive confusion among judges, the regulated community, EPA and the Corps. But there is so much more at stake than confused lawyers, judges, agencies and stakeholders. According to EPA data, 111.6 million Americans are served by water systems that receive water from intermittent streams or headwaters, the very waters now argued to be outside the jurisdiction of the Clean Water Act. Our Nation's great recreation economy is at risk when our waters are at risk. According to the 2006 national survey of fishing, hunting and wildlife-associated recreation released just last month by several Federal agencies, including the U.S. Fish and Wildlife Service, $122 billion was spent on fishing, hunting and wildlife activities this year, 30 million people fish, 12.5 million hunt, 71.1 million took part in wildlife-observing activities. Now, without clean, healthy waters and ecosystems, America risks losing much of its natural heritage. The bottom line is that America's waterways and wetlands are threatened because of these Supreme Court decisions and the Bush administration's interpretations of them. Fortunately, there is a solution to this problem, and I do applaud Senator Feingold for his leadership on this issue. His bill is simple. It restores the long-established jurisdiction of the Clean Water Act to protect the waters it was intended to protect and has always protected. Colleagues, after more than 35 years of improving and protecting water quality in America, we should be celebrating the Clean Water Act, not standing by and allowing its landmark protections to slip away. Senator Inhofe. OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE STATE OF OKLAHOMA Senator Inhofe. Madam Chairman, our Committee has examined the issues surrounding Clean Water Act litigation and jurisdiction several times, most recently in November. Thank you to all of today's witnesses who have taken time to come to testify before this Committee this morning. It is no secret this Committee has long advocated for policies that are protective of overall environmental health. I am proud of my years of service advocating for policies that improve our Nation's drinking and wastewater facilities. Today's legislative hearing will focus on S. 1870, the Clean Water Restoration Act. This bill as currently written will expand Federal jurisdiction authority in a way that pushes the outer limits of Congress' constitutional role. If Congress is to amend the Clean Water Act, any changes must provide clarity and reduce lawsuits. This bill does neither. It will not curtail litigation, but rather increase it as stakeholders seek legal clarity on what exactly are the limits of the constitutional authority. Many supporters of this legislation argue that the bill simply clarifies and restores the scope of Federal jurisdiction over waters and will return the regulatory authority and certainty to the pre-Rapanos Supreme Court decision era. I believe this statement is misleading. S. 1870 would strike the words ``navigable waters'' and replace the term with ``waters of the United States,'' defined as ``all InterState and IntraState waters and their tributaries.'' Most egregious, though, is that the definition establishes Federal authority over not only all waters, but ``to the fullest extent that these waters or activities affecting these waters are subject to the legislative power of Congress under the Constitution.'' In 1972, the framers of the Clean Water Act chose to tie Federal regulatory jurisdiction to the term ``navigable waters,'' limiting jurisdiction under the Commerce Clause. By striking any reference to ``navigable'' from the law, this bill will expand the Federal reach under the Act far beyond what the authors intended. In other words by striking any reference to the Commerce Clause, all waters, regardless of size or significance, and importantly, any activities affecting all waters, could be regulated by the Federal Government until the courts have determined the Federal reach was unconstitutional. For example, individual property owners could have a small depression in their field or yard that can collect water after a good rain. If this bill passes, those waters become jurisdictional and all activities that could affect that depression would have to go under the 404 permit. Further, homeowners could potentially need national pollutant discharge limitation system permits, the NPDES, for stormwater running off their property or from the gutters of their roofs. The effects of this legislation go far beyond the legal nuances and potential litigation. As you are well aware, Madam Chairman, many of our local governments, including cities and counties across the Country, face increasing financial burdens to improve their water and transportation infrastructure. I have received letters and testimony from all over the Country opposing this legislation, including the testimony from regional and municipal water associations that fear legislation will constrain State and local flexibility, while greatly increasing the time and costs associated with meeting water supply and wastewater treatment obligations, as well as timely completion of necessary WRDA projects. As a former mayor, I can tell you that local governments and landowners don't have the resources to delay the projects for years, while waiting on a permit. I have often said to others who have been mayors of cities that the major problem is not crime in the street and prostitution and all these things, but it is unfunded mandates. I think this is kind of what we are getting into here. We also have Mr. Smith here from Montana, conveying many concerns from our agricultural community. The current cost of producing the world's safest food supply are increasing, and adding layers of regulatory hurdles makes it harder for the family farmer to survive. The narrowly written savings clause only partially protects the agricultural community and opens families to potential litigation and fines for routine work. I would like to include in the record a letter signed by 24 State agriculture associations and several State sportsmen's organizations. Senator Boxer. Without objection, so ordered. [The referenced document was not received at the time of print.] Senator Inhofe. Finally, advocates of this bill assert it as a save-all for clean water, but will likely only add another cumbersome process to an already bureaucratic system, and not add to water quality. As I have said before, the Federal Government owes it to the American people and individual property owners, including the millions of homeowners across the Country, to have clean, concise constitutional definition of waters of the United States. The Clean Water Restoration Act does not meet any of these goals and will simply result in more lawsuits and more confusion. So obviously, I am opposed to this, and I thank you for this hearing, Madam Chairman. [The prepared statement of Senator Inhofe follows:] Statement of Hon. James Inhofe, U.S. Senator from the State of Oklahoma Madam Chairman, our Committee has examined the issues surrounding Clean Water Act litigation and jurisdiction several times, most recently in December. Thank you to all of today's witnesses who have taken time out of their busy schedules to testify before the Committee this morning. It is no secret this Committee has long advocated for policies that are protective of overall environmental health. I am proud of my years of service advocating for policies that improve our nation's drinking and waste water facilities without overburdening our communities. I have also worked tirelessly on legislation that protects and preserves wetland resources while respecting private property rights. Today's legislative hearing will focus on S. 1870, the Clean Water Restoration Act. This bill, as currently written, will expand Federal jurisdiction authority in a way that pushes the outer limits of Congress's constitutional role. If Congress is to amend the Clean Water Act, any changes must provide clarity and reduce lawsuits. This bill does neither. It will not curtail litigation, but rather increase it, as stakeholders seek legal clarity on what exactly are the outer limits of congressional authority. We should not propose and pass legislative language that increases uncertainty and increases an already litigious environment. Many supporters of this legislation argue that the bill simply clarifies and restores the scope of Federal jurisdictional waters and will return the regulatory authority and certainty to the pre-Rapanos-Carabell Supreme Court decision era. I believe this statement is grossly misleading. S. 1870 would strike the words ``navigable waters'' and replace the term with ``waters of the United States'' defined as ``ALL interState and intraState waters and their tributaries.'' Most egregious, though, is that the definition establishes Federal authority over not only all waters, but ``to the fullest extent that these waters or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.'' In 1972, the framers of the Clean Water Act chose to tie Federal regulatory jurisdiction to the term ``navigable waters,'' limiting jurisdiction under the Commerce Clause. By striking any reference of ``navigable'' from the law, this bill will expand the Federal reach under the Act far beyond what the authors intended. In other words, by striking any reference to the Commerce Cause, all waters--regardless of size or significance, and importantly, any activities affecting all waters--could be regulated by the Federal Government until the courts determine the Federal reach was unconstitutional. For example, individual property owners could have a small depression in their field or yard that can collect water after a good rain. If this bill passes, those waters become jurisdictional and all activities that could affect that depression or the waters in that depression must be permitted under section 404. Further, homeowners could potentially need national pollutant discharge elimination system permits (NPDES) for storm water running off their property or from the gutters on their roofs. The effects of this legislation go far beyond the legal nuances and potential litigation. As you are well aware, Madam Chair, many of our local governments, including cities and counties across the country, face increasing financial burdens to improving their water and transportation infrastructure. I have received letters and testimony from all over the country opposing this legislation, including this testimony from National Water Resources Association, Western Urban Water Coalition and Western Coalition of Arid States. They say that this legislation will ``unduly constrain State and local flexibility, while greatly increasing the time and costs associated with meeting water supply and wastewater treatment obligations, [and] timely completion of necessary projects, such as those authorized in the recent WRDA legislation.'' In the last 5 years, construction costs have risen over 30 percent. As a former mayor, I can tell you local governments and land owners do not have the resources to delay projects for years while waiting on a permit that will unlikely lead to cleaner water. I am pleased to have Mr. Brand here to speak to the concerns of local governments. We also have Mr. Smith here from Montana, conveying many concerns from our agricultural community. The current costs of producing the world's safest food supply are increasing, and adding layers of regulatory hurdles makes it harder for the family farmer to survive. The narrowly written savings clause only partially protects the agricultural community and opens families to potential litigation and fines for what is now considered routine work. I would like to include in the record the letter signed by 24 State agriculture associations and several State sportsman's associations. Finally, advocates of this bill assert it as the save-all for clean water, but it will likely do nothing to improve overall water quality. Increasing Federal bureaucracy and requiring property owners to go through a lengthy permitting process for activities that may affect a puddle on their private land hardly constitutes protecting our nation's water. As I've said before, the Federal Government owes it to the American public and individual property owners, including the millions of homeowners across the country, to have a clean, concise and constitutional definition of ``waters of the United States.'' The Clean Water Restoration Act does not meet any of these goals and will simply result in more lawsuits and more confusion. I look forward to all of our witnesses' testimony on S. 1870. Senator Inhofe. And let me say, as I told Carol Browner, it is nice to have you back here. We missed you for a few years, and I always enjoyed the combat. [Laughter.] Senator Boxer. I remember that combat. Senator Baucus. OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE STATE OF MONTANA Senator Baucus. Thank you, Madam Chairman. Obviously, I thank you for holding the hearing. I thank all the witnesses for coming to help us out here. I especially want to thank Randy Smith. Randy is the most distinguished-looking fellow sitting in the front row there. I look forward to Randy's testimony at a later date. Randy and his wife Emily, for those on the Committee who probably do not know, runs a cow-calf operation near Glen, Montana. He is also Chairman of the Big Hole Watershed Committee. I mention that because the Big Hole Watershed Committee is a coalition of ranchers and conservationists working to restore our ailing fish populations there in the Big Hole, and to protect the Big Hole River, the point being that there is a lot of cooperation in that part of our State in trying to deal with lots of different dynamics. One is running a good, profitable cow-calf operation. The second is addressing some of the concerns under the Endangered Species Act. They are all working together to try to accomplish all those objectives in a cooperative way, and I just want to thank Randy for all his efforts. He is doing a super job. Senator Mike Mansfield, the former Majority Leader, once said, ``We will have to learn to get along with one another and recognize that we don't know it all. So we should listen to the other person, and that other person sometimes is right and sometimes we are wrong. It will be a matter of accommodation and compromise and knowledge and understanding.'' I would just like to highlight that quotation from him, because I think that sense of humility served Montana's most distinguished Senator very well. His humility made him one of the most effective Majority Leaders in our Senate's history. He served for 17 years. That is a record for a Majority Leader. When he was Leader, he also worked hard to pass the Clean Water Act in 1972. It was important to him. As we take a closer look at the Clean Water Restoration Act, I hope that all this will bring the same sense of humility and willingness to consider other points of view to the debate that he epitomized, that he pursued. The Clean Water Act has undoubtedly made this Country a better place to live, work and raise a family. That is clear. If you stop and think about it, our water was in terrible shape before the passage of the Clean Water Act and the Safe Drinking Water Act. We cleaned up our rivers and we have safe drinking water in the United States by and large because of those major bills that were passed back then. It is amazing what they have done for this Country. I am sure some of you probably remember walking along the Potomac River. It stunk, and that is just one river. The Cuyahoga burned, it was just so polluted. We have done a super job, frankly, in this Country under the Clean Water Act. Its goals of improving water quality, ensuring fishable waters and protecting wetlands are clearly goals that we all support. The Clean Water Act has been instrumental at protecting wetlands. Before passage of the Clean Water Act in 1972, our Country was losing about 500,000 acres of wetlands every year. By the mid-1990's because of the Act, that number had dropped to about 60,000 acres per year. Clearly, that is a major improvement, but clearly more work needs to be done. From filtering nutrients and sediments to reducing flood risks to promoting habitat for fish and game, wetlands serve invaluable public purposes. We must find ways to both protect wetlands, obviously, and respect private property rights. In the wake of the SWANCC and Rapanos cases, it is appropriate that the panel focus on how we can best achieve the goals of the Clean Water Act for drinking, fishing and recreation. The Clean Water Restoration Act proposes one path forward. I look forward to working with my colleagues to see if it is the right path. Clearly, there are good points in it, but there are also probably parts of it we have to pay more attention to. I hope our efforts here today are ones where we can work together in a constructive and humble way. Thank you, Madam Chairman. Senator Boxer. Thank you, Senator Baucus. You have a very good way of finding that sweet spot where we can move legislation forward, so we will be working very closely with you. Senator Vitter. OPENING STATEMENT OF HON. DAVID VITTER, U.S. SENATOR FROM THE STATE OF LOUISIANA Senator Vitter. Thank you, Madam Chairman, for calling this hearing on a very, very important topic, one that clearly dramatically affects Louisiana, in which I take great, great interest. As does Senator Inhofe, I have some real reservations about the bill. Let me mention two related reservations in my opening statement. One is the central part of the bill which does not restore previous law in any way, but dramatically changes and expands previous law and dramatically expands Federal jurisdiction. I think we need to be very clear, because the title of this bill is very misleading, in my opinion. This bill dramatically redefines and expands Federal authority because it takes the term ``navigable waters'' out of Federal law and replaces it with ``waters of the United States.'' I think it is beyond debate that is not restoring previous law. That is changing and expanding previous law. That is not restoring what was ever intended to be the limits of Federal jurisdiction. That is dramatically expanding Federal jurisdiction. The new definition of what is under Federal jurisdiction would be, under this bill, all interState and intraState waters and their tributaries, including lakes, rivers, streams, mudflats, sandflats, and the list goes on and on. I looked at this and did some research and thought about it, trying to figure out what instance of water was not included in that definition and I couldn't come up with anything. So this is a dramatic change. Now, in Louisiana, we are very concerned with wetlands. We represent 40 percent of the wetlands in the United States. Unfortunately, we represent 80 percent of wetlands annual losses. It is being lost at an alarming rate. If you can picture a football field of land, just think of a football field, we lose that from Louisiana every 38 minutes. Every 38 minutes, another football field is gone, and that is 24 hours a day, 7 days a week, 52 weeks a year, with no time off for evenings or weekends or holidays. That is an alarming rate. We have already lost an area the size of several smaller States from our State of Louisiana. So wetlands are crucially important. The other hesitation I have with all of this is that unfortunately, the Corps of Engineers wetlands regulation has done absolutely nothing to stem that problem or to solve that problem. In fact, you have this bizarre nonsensical situation which only a big Federal bureaucracy could come up with, where there is intense Corps of Engineers regulation of wetlands under present law, and that is appropriate and certainly in most instances I am not quarreling with that, and there is a necessity under that regulation for mitigation if any of that wetlands, for instance, is impacted by development. That is a good idea. I am not quarreling with that principle at all. But you know what? None of our activity to try to stem coastal land loss, which is also under the leadership of the Corps, qualifies for that mitigation. It is two different planets, and never the twain will meet. We are actually running out of mitigation banks in Louisiana where folks who are impacting even low-value wetlands can go to mitigate, while we are initiating and moving forward with huge ground-breaking coastal restoration efforts, and those efforts don't qualify in any way for mitigation. It is completely bizarre and nonsensical. So under that scenario, I am very wary of dramatically increase the Corps' jurisdiction as this bill would do. I very much look forward to all the witnesses' testimony about those concerns in particular. Thank you very much, Madam Chairman. Senator Boxer. Thank you, Senator Vitter. Senator Barrasso. OPENING STATEMENT OF HON. JOHN A. BARRASSO, U.S. SENATOR FROM THE STATE OF WYOMING Senator Barrasso. Thank you very much, Madam Chairman. In Wyoming, almost nothing has been more important in our State's history than water. As we say across the West, and certainly in Wyoming, whiskey is for drinking and water is for fighting over. When someone says water in Wyoming, all ears tune in. In Wyoming, where the frontier spirit of smaller government and individual liberty are still sacred traditions, there is overwhelming objection to this bill. The people of Wyoming do not want the Federal Government to go where this bill wants to go. I recently heard from the Wyoming Association of Rural Water Systems. I would ask that their letter be added as part of the record. Senator Boxer. Without objection, so ordered. [The referenced document was not received at the time of print.] Senator Barrasso. Thank you very much, Madam Chairman. They oppose any legislative efforts which would expand the Federal Clean Water Act jurisdiction over all water within the United States. The concern I hear at home is that this legislation would grant to the EPA and to the Army Corps virtually unlimited regulatory control over all wet areas within a State. So let's be clear. This bill then trumps States rights. This bill preempts States and local governments from making local land and water use decisions. For Wyoming, there is even a larger concern because this bill un-does the legacy of one of Wyoming's great statesmen, Senator Malcolm Wallop. Senator Wallop is still recognized as an authority on Western water law. He authored and passed an amendment to the Clean Water Act. That amendment blocks Washington from overriding State control of water. This bill wipes that out and leads to an even more expensive, cumbersome bureaucracy. The bureaucracy will increase delays in securing permits and that will slow or stop vital economic activities all across the Country. That is going to include agriculture, electric transmission, transportation, mining, real eState development--all will be affected. These are not activities that we want to hurt deliberately, especially while the housing market is in decline, while people are paying higher electric bills, while family farms are in decline, while our Nation's infrastructure may be crumbling, and while the mining industry is facing new regulations. These are the industries that create economic growth and we need them to be strong and viable. I have serious concerns on how this bill will affect my home State. There are significant unintended consequences of this legislation that will lead to absurd results in Wyoming. It is now springtime in the Rockies. As the snow melts, large temporary water holes are formed on ranches and farms all across the State. Under this bill, any activity on that land that touches these water holes would require a Federal permit. Ranchers who use stock water ponds for watering livestock would be required--required--to obtain a Federal permit before any upgrades or modifications to the pond occur. Let's talk about the larger issue for Westerners across the spectrum, and that is the water shortage in the West. The West is growing, but the Rocky Mountain West never has all the water that it needs. This bill will needlessly delay construction or repair of pipelines, ditches, canals, diversion structures, and wells with more permitting requirements. Water is vital to the sustainability of Wyoming and so many other States. We should not delay such pipelines, canals, diversion structures and wells from being built. Delays in providing for water delivery not only hurts our citizens, it also hurts endangered species who need that water as part of habitat conservation plans and recovery plans across the West. Given the reasons that I have mentioned, I have come to the conclusion that on behalf of the citizens of Wyoming, I want to say thanks, but no thanks. Thank you, Madam Chairman. Senator Boxer. Thank you so much. We don't have applause at these, but we do appreciate it. Senator Isakson. OPENING STATEMENT OF HON. JOHNNY ISAKSON, U.S. SENATOR FROM THE STATE OF GEORGIA Senator Isakson. Thank you, Madam Chairman. I want to begin by thanking Administrator Browner. I don't know whether she will remember this event or not, but in 1999 she issued a waiver to the State of Georgia and the city of Atlanta for the construction of the 17th Street Bridge. We were in violation of the Clean Air Act and clean air standards. I am pleased to tell you, because of her wisdom in granting that waiver, that connector has now been built and 20 percent of the traffic on the downtown connector is gone, and the air quality has gone up, which also demonstrates a point that I would like for her to address sometime during the hearing. When you run into the labyrinth of regulatory authority over air and water, sometimes there are unintended consequences just like there was on the 17th Street bridge. For example, we are now in Georgia in a severe level IV, category IV drought. Our main drinking water resource, the Lake Lanier, is being managed not by water consumption for humans, but by an environmental species suit. Because of wetlands restrictions, building of reservoirs in North Georgia has been difficult and problematic because of those regulations. So in our attempt to build reservoirs to get more retainage to help manage ourselves during the most difficult of times of drought, and our inability to get those reservoirs built because of the wetlands application, we end up having the Corps of Engineers releasing water because of an environmental species suit. The unintended consequence of both those excellent pieces of legislation is we are running out of water to drink. In the absence of the drought going away, we are going to have a big problem. So my comment is this, and I think Senator Baucus made an excellent observation. I think he referred to as a sweet spot. The waiver for us on the 17th Street Bridge was a sweet spot. If there is not a clear way in which you can work your way through regulations to see to it that in the end the people we serve are benefited, not actually punished, then this is going to have a real problem. So it is very important for me to understand that whatever the regulatory mechanism is, it does not become a labyrinth that inhibits us doing the right thing. I again thank you for that bridge. It has made my commute in Atlanta a lot easier. Senator Boxer. Thank you very much, Senator. And now we turn to Hon. Carol Browner, Principal, The Albright Group, former Administrator, U.S. Environmental Protection Agency. We really are very pleased to see you, Carol. If you can sum up in five or 6 minutes, and then we will have questions. STATEMENT OF CAROL BROWNER, PRINCIPAL, THE ALBRIGHT GROUP, FORMER ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY Ms. Browner. Thank you very much, and good morning, Madam Chairman, Senator Inhofe and members of the Committee. I appreciate the opportunity to return to this Committee room and to testify before you today about the urgent need for legislation to protect our Nation's waters in light of recent challenges to the Clean Water Act. I want to speak to you today as the former Administrator of the Environmental Protection Agency. I also want to note that I have continued my work in the environmental arena as Chair of the National Audubon Society. During my tenure at EPA, I gave high priority to safeguarding our Nation's waters. I recognized, as did the Administrators who preceded me, that Congress intended for the Clean Water Act to cover all of our Nation's interconnected water resources, including watersheds, tributaries and wetlands. These waters are essential not only for safeguarding water quality, but also for the health of our people, our economy, and to ecosystems. These waters protect and purify water. They shield our homes and businesses from flooding, and they provide valuable habitat for a wide range of wildlife. However, I believe this congressional intent has been challenged in recent years by Supreme Court decisions such as SWANCC and Rapanos. In the Rapanos case, I joined with three of my fellow former EPA Administrators, Democrats and Republicans, in filing a brief in the Supreme Court supporting the Government's interpretation of which waters should be protected under the Clean Water Act. In enacting that law, Congress acknowledged that all of our Nation's waters are connected through hydrologic cycles and therefore must be given equal protection. Agencies and courts, in keeping with that legislative intent, must interpret the term navigable waters broadly as waters of the United States in order for our waters to be adequately protected from pollution. My fellow former Administrators and I, two Democrats and two Republicans, argued that misinterpretation of navigable waters, which was suggested by the petitioners in the Rapanos case, would if accepted by the court do serious damage to our ability to protect our Nation's waters. In light of the Supreme Court's contentious split decision in Rapanos, I am now concerned that wetlands and tributary protections that have been in place for more than 30 years are jeopardized. The Federal agencies responsible for implementing the Clean Water Act--EPA and the Army Corps of Engineers-- worked for months on policy guidance in light of the Rapanos decision. Last June after substantial review and revision by the White House and other agencies, in addition to concerted lobbying efforts, EPA and the Corps finally issued this guidance. I believe this guidance fails to clarify the Clean Water Act's protections for a large portion of the Nation's wetlands and streams, and that it takes a very narrow and unnecessary interpretation of the Rapanos decision. Under this guidance, as many as 20 million acres of wetlands and thousands of miles of seasonal streams will be vulnerable to pollution, filling and destruction. This will inevitably affect many more water resources. The most effective solution to this problem would be legislation to restore how we have always interpreted the Clean Water Act. I support passage of the Clean Water Restoration Act of 2007 because it leaves no doubt as to the scope of the Clean Water Act. Specifically removing the phrase navigable waters from the Clean Water Act and giving definition to the phrase ``waters of the United States'' will restore the original intent of Congress and allow the agencies to continue to act as they have acted for 30-some years. I want to be very clear about this. This legislation is not an expansion of the Clean Water Act's jurisdiction. It is merely an essential clarification of Congress' original intent for this landmark law, which we have relied upon. As Senator Baucus noted, it has allowed us to achieve so much in terms of protecting our Country's water resources. Again, it is a pleasure to be back before this Committee, and I look forward to answering any questions. [The prepared statement of Ms. Browner follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Senator Boxer. Thank you so much, Ms. Browner. You said that there were three of you that joined together in effect to say you didn't agree with Rapanos. Who were those three? Ms. Browner. There were four. There was myself. I was joined by the only other Democrat to ever run EPA, Doug Costle, and then two Republicans, Mr. Train and Mr. Reilly. Senator Boxer. Thank you. Now, Senator Vitter says that the Clean Water Restoration Act, which I support and you support, expands the scope of the Clean Water Act. He says it is disingenuous to say it just restores it. Do you see this bill expands the Clean Water Act beyond the scope of what it was before these Supreme Court decisions? Any significant changes? Ms. Browner. There is absolutely no expansion of the Clean Water Act's jurisdiction. The waters that have historically been protected would continue to be protected. I might also note, Madam Chair, that the exemptions embodied in the Clean Water Act are also preserved. So some of the examples that appear and people have been talking about are actually activities that are exempt, have been exempt under the law, and would continue to be exempt under the law. The final point I would make is just because a water is covered doesn't mean nothing can happen. There is a permitting process that unfolds. I think a number of the members spoke to the issue of mitigation. So this is not a hard stop. It merely guarantees that the Federal Government will take a look in particular situations and determine whether or not the activity will have irreversible impacts on the quality of our water. Senator Boxer. OK. I just want to say for the record, as we all sit here, I would say in general members who are here today, water is a huge issue. Anyone who saw the movie Chinatown understands, or read the book Cadillac Desert about my State, knows about the water fights. I agree with you, Senator Barrasso, it is a cause of great angst and continues to be. I found what is very interesting, the American Association of State Highway and Transportation Officials put together a document. They said since Rapanos, and I think this would interest my colleagues, because the Federal Government has had to issue guidance and it is so confusing. They have issued guidance under the Bush administration and one State reports that prior to Rapanos, section 404 permitting typically took no more than 120 days. It is now taking eight to 9 months to get a project done. So to my colleagues complaining about this bill, it would at least improve the current situation. So I would ask have you heard similar stories, that this is so confusing it is taking longer to get these projects done? Ms. Browner. I have. I think there is a lot of confusion out there. There is a case out of Alabama recently where there was a criminal conviction and fines because of activities that took place. The case on appeal was remanded to the trial judge, who essentially threw up his hands and said, I don't understand what I am supposed to do here; this is not clear at all, and I don't want to be involved going forward. So if you have judges feeling that they cannot even begin to interpret the law, you can only imagine what the person sitting in a government office trying to process a permit on a day to day basis must be experiencing. Senator Boxer. So you have judges throwing up their hands. You have officials here in the Bush administration so confused that the guidelines are taking--that the guidelines are so confusing that it is taking way longer to get a permit than it did under the former bill. So under Rapanos, if a factory is located next to an isolated wetland or a stream that flows only some months of the year, are you concerned that the owner of the factory could dump toxic pollution into those waters and argue that they are not within the scope of the Clean Water Act. Ms. Browner. I am concerned. I think that is an important point. We think about the bill before you as protecting wetlands from being dredged and some way destroyed or paved over, but the Clean Water Act is also about what we discharge, what pollutants we dump into our rivers, lakes and streams, and that may start with a wetland or some sort of stream that only runs occasionally. If we lose the authority to prohibit or to regulate those kinds of activities, or to be even be aware that those kind of activities are taking place, we will set ourselves back in terms of our goal toward fishable and swimmable waters for the people of this Country. Senator Boxer. Thank you. My time has almost expired, so we will turn to Senator Vitter. Senator Vitter. Thank you, Madam Chair. Madam Administrator, obviously we disagree. Under your tenure, EPA and the Corps didn't assert jurisdiction over every intraState body of water, did it? Ms. Browner. The definition that is laid out in this piece of legislation is what we followed. This was how we did the job on a day to day basis. You are right. We didn't assert jurisdiction over every single puddle, nor would this legislation cause the government to be able to assert jurisdiction over every puddle. Senator Vitter. Let me rephrase the question. What type of body of water does the new language in this bill not cover? Ms. Browner. Oh, all sorts of bodies of water. Senator Vitter. Give me some examples if there are all sorts. Ms. Browner. A puddle. I think someone mentioned that puddles are covered. Puddles would not be covered. There are eight different exemptions. Senator Vitter. Are you sure the puddle wouldn't be a mud flat? Senator Boxer. Would you allow the witness to answer before you interrupt her please? Senator Vitter. A slough for a prairie pothole or a wet meadow? Ms. Browner. All of the things listed in here have widely accepted scientific definitions. Just because you or I might look at something and say it is this or that, the agencies who implement these laws are not free to do that. They follow the accepted definitions and there are lots of things that would not be covered. I come from Florida where wetlands is a huge issue. I can tell you all sorts of places in Florida that would not be covered under this law. This is not changing what the agency has been doing, the EPA, the Army Corps of Engineers, and the States that were subject to that jurisdiction. This is not changing what they have been doing. In a better world, to your point about protecting wetlands and protecting our waters, maybe we should be thinking about expanding what is covered. This does not do that in any way, shape or form. Senator Vitter. I am a layman, so explain to me some of these accepted definitions. What is the difference between a puddle, as you describe it, and a natural pond or a wet meadow? Ms. Browner. If the Chair doesn't mind if I can just back up for 1 second, the best definition of a wetland is not whether or not water is always there. The best way to determine it, the scientific way to determine what is a wetland is to look at what is the vegetation, what is the habitat that is provided. Simply because water stands someplace at some period of time doesn't make it a wetland, doesn't make it something that is subject to permitting under the Clean Water Act. So there are widely accepted ways to determine what is and what isn't. The Army Corps, EPA and many of the States have actually mapped their States. You can look at these maps. If you are a developer--we did a lot of this work when I was at EPA--you can look at a map and understand where there are requirements that you have to meet and where there are no requirements for you to meet. Senator Vitter. Again, let me re-State the question, because I don't understand the answer. For a layperson, what is the difference what you are calling a puddle and a mudflat, a sandflat, a slough, a prairie pothole, a wet meadow, a natural pond--all impoundments of the foregoing. Ms. Browner. I would say it this way. A puddle does not have the kind of vegetation, does not provide habitat, does not contribute to aquifer re-charge. Therefore, it is not covered under the bill. Senator Vitter. I would just make the point, Madam Chair, that a lot of things I consider a puddle and my constituents consider a puddle are undoubtedly these things. I think as a matter of practice, this would be a dramatic expansion and invitation of the Federal bureaucracy to get involved in all sorts of things that they haven't traditionally been involved in. I assume, Madam Administrator, you agree that under the new language, there is no type of property, like for instance a backyard, that is off limits by definition. Ms. Browner. Under the historic interpretation of the Clean Water Act, there are lots of things like backyards--and you and I may not be meaning the same thing--that are excluded. There is a whole 30-year history of interpreting this language that doesn't go away. It is preserved. Can I try and say this another way? If you don't do something like this bill, if you don't reassert the historic jurisdiction of the Clean Water Act, you could end up in a situation where an overly aggressive Administrator started expanding the Federal Government's activities. This actually takes what has been done for 30 years and says that is all you can do going forward. Senator Vitter. I thought---- Senator Boxer. Your time has expired. We will now move to Senator Whitehouse. Senator Whitehouse. Thank you, Madam Administrator, for being here. I appreciate it very much. Having run regulatory agencies myself, and having served as a lawyers and attorney general, I am keenly aware of the value of the precedent that has been built up around a particular statute over very many years. It is somewhat unrelated, but when I was attorney general, one of the battles I fought was to get rid of our State definition of grand jury secrecy rules so we could model the Federal grand jury secrecy rules. I did so not because the Federal grand jury secrecy rules were word-by-word better than the State rules, but rather because they came with a body of precedent that spanned the Country, that had innumerable glosses on them and further definitions and analysis and discussion. That body of precedent provided guidance to lawyers, provided stability to the process, and prevented my successors in this office from doing extraordinarily difficult, stupid or whatever things that they might have been able to slip through a State definition. That great body of precedent attached to the Federal definition was enormously both restricting and provided practical guidance in a way that a new bill never could. So I just want to emphasize what you said. I think that the most important thing that you said in your testimony was exactly that, that there is this precedent developed under both Republican and Democratic Administrations. Correct? Ms. Browner. Yes. Senator Whitehouse. Under Republican and Democratic Administrators? Ms. Browner. Yes. Senator Whitehouse. Primarily driven by technical professional people who are not partisans within the Environmental Protection Agency? Ms. Browner. And the Army Corps of Engineers, yes. Senator Whitehouse. And the Army Corps of Engineers--hardly a hotbed of liberal environmentalism through a great deal of this period, correct? Ms. Browner. Correct. Senator Whitehouse. So you would agree, there is real value to trying to revive that body of precedent in this case. Could you comment on how a developer might find value in having this body of precedent reactivated by this statute? Ms. Browner. Well, two points. You are exactly right. Precedent is very important and agencies are not free to do whatever they want. They have to follow the law and they have to follow the historical interpretations of the law by the agency and by the courts. A developer should take a lot of comfort in knowing that the agency is not free to do anything. This clarifies that in light of the Supreme Court decision. I might also note that in the Rapanos case, 34 States submitted amicus briefs saying we can't do this without the assistance of the Federal Government. So there is this recognition that the precedent, Senator, as you speak, that has built up in the Federal program is extremely important. Senator Whitehouse. Yes, including my State of Rhode Island. I am very proud to be a part of it, but also including Kentucky, Louisiana--Senator Vitter's State signed on--Montana, and New Mexico. It is a very broad coalition. One other quick question or observation, I guess, the Clean Water Act was passed back in 1972, and the Rapanos decision was in 2006. Ms. Browner. Correct. Senator Whitehouse. So for 34 years--we are trying to get back to whether the law of the land was developed over that great time period in which there were Republican Presidents and Republican Congresses and Democratic Presidents and Democratic Congresses. That is a pretty substantial track record for lawyers, developers, people trying to figure out whether to finance a project, to look at. Correct? Ms. Browner. Absolutely. To put two finer points on it, most of the people interpreting the Clean Water Act over its history were Republican administrators, not Democratic administrators; and No. 2, I think I am widely known for having had a very aggressive enforcement program at EPA going after the polluters. We read this the way it had been read historically. At the same time, the economy grew in this Country. Lots of areas got developed. Things as we know it didn't grind to a halt. So you can interpret this law and still have a lot of the activities that people think are important to their communities, to their economy, to their agricultural production. It has been done before. It can be done again. Senator Whitehouse. My time has expired. I thank the Chair. Senator Boxer. Thank you very much, Senator. Senator Barrasso. Senator Barrasso. Thank you very much, Madam Chairman. When the Clean Water Act passed initially, there were some assurances made unanimously to Western Senators regarding allocation of water. I think that helped ensure passage of the bill at that time. Certainly, the amendment from Senator Wallop was part of that essentially barred Washington from overriding State control of water. The National Water Resources Association states that this bill dramatically undermines the assurances made by Congress to the States, which was part of the Wallop amendment. Does this bill, in your opinion, erode or undermine the language in the statute included by Senator Wallop? Ms. Browner. No, I do not believe it does. I am sure you know this, but it is always just worth reminding ourselves, the Clean Water Act is about water quality. It is not about water quantity. I think what Senator Wallop was attempting to do was to make that distinction very clear. Now, obviously there are times when water quantity affects water quality, but the heart of the Clean Water Act is water quality. Senator Barrasso. But you continue to maintain this is not an expansion, but a clarification, although everyone I talk to at home views this as an expansion, not as you claim, a clarification. You talked about your opinion on these. That is just your opinion. It is not what a judge may rule if a suit is filed. Ms. Browner. Let me say, if I were at EPA and this bill were to pass, nothing would change in terms of what EPA would be doing. EPA would continue to do the same thing it had done prior to the Rapanos decision. I wouldn't send out some guidance. I take your point that I am not a judge. I do have 20 years of experience in the regulatory arena and I continue to follow these issues, but I am not a judge. But I can tell you, as someone who has written regulations, as someone who has written legislation, who has read a lot of these, this in my considered opinion does not in any way change the jurisdiction of EPA and the Army Corps of Engineers when it comes to protection our Nation's water quality. Senator Barrasso. It would just seem that removing the word navigable does expand, does not just clarify, and if it didn't, this piece of legislation wouldn't be necessary. In your opinion, how is this bill going to benefit ranchers and farmers all across Wyoming and the Rocky Mountain West? Ms. Browner. Well, I think it benefits them in the same way it benefits all of us, which is we are facing increasing dilemmas when it comes to water in this Country, making sure that we are able to protect areas that act as re-charge, protect areas that contribute to a water body that becomes our drinking water. Our water resources are interconnected, and protecting them in a coherent way makes sense for everybody, whether you are a farmer or a mother turning on the tap water to fix their baby's bottle. Senator Barrasso. Thank you very much, Madam Chairman. I think we just have a fundamental difference of opinion on this as a clarification or expansion. Thank you. Senator Boxer. Thank you, Senator Barrasso. Senator Carper. Senator Carper. Ms. Browner, welcome. It is great to see you. Thank you for your service to our Country and your stewardship, and for joining us today. One of the things I was reminded of almost every day in my 8 years as Governor was that businesses like certainty. They like to know what the rules of engagement are going to be. We have been wrestling here with what to do about climate change and global warming. My colleagues have all met with folks from the utility industry. I remember this one meeting about 2 years ago with folks from utility industries around the Country. We were talking about reducing carbon dioxide emissions and trying to set up a cap and trade system. This one crusty old fellow from a utility company somewhere down south, maybe Georgia, he said to me, just tell us what the rules are going to be; make them reasonable; give us a chance to comment on them; and just give us a little flexibility and get out of the way. That is really what he said. But he said, in our business we are going to be investing hundreds of millions of dollars, maybe billions of dollars, and we just need to know what the rules are going to be. I think the same probably applies here. You started to make a point, and I just want you to go back and make it again for us. The point I think you were making is you could have an Administration given broad flexibility to come in and take the law, if you will, through regulation, in directions that would be far different from where this Administration would go. I think what you are trying to say is by virtue of passing the legislation that has introduced, and that some of us have cosponsored, we do provide a fair amount of predictability for folks who need it. Would you just expand on that for us again? Ms. Browner. You are exactly right. I heard it over and over again during my tenure at EPA. People just want to know what the rules are. They want to know what the end game is. They want some flexibility in how they get there, but tell them the rules. This tells people the rules. Essentially what it says is the rules are as they have been. Again, I think it is really important to remember, this doesn't say you can't get a wetlands permit. It simply says when you must seek the authority of the government. It also includes a whole set of exemptions, a whole type of activity, and these types of waters are not covered with this proposed legislation. So I actually think that if I were a developer, if I were a farmer, I would take a lot of comfort in the clarity that this brings to the situation. Senator Carper. All right. Thank you. A second question, if I could. I understand that under EPA and Corps of Engineers new guidance rules that as many as 20 million wetland acres could lose Clean Water Act protection. I don't know if that is the right number. That is what I have heard. Delaware, as you know, is a coastal State. You know because you have been there along with your son, as I recall, many years ago on a day that it rained all day. But I understand the importance of preserving wetlands to clean our surface water and to protect our coast in Delaware against storm surges and provide some habitat for plant and animal species. The question is this, and it really relates to cost. Could you talk with us a little bit about the costs of not protecting these so-called wetlands to public health and the environment? Is it more effective, in your judgment, to take preventive measures or to really be reactionary? Ms. Browner. If 35 years of environmental efforts in this Country on the pollution side have taught us anything, it is precisely that preventing the pollution, rather than waiting to clean it up, will always be more cost-effective. We are talking about water quality broadly, but when we talk about wetlands, that is nature's kidneys. It is the way nature has of purifying the runoff, the pollution. And if we go around draining our wetlands and paving our wetlands over, we are not going to have that function in nature and we are going to end up having to do it ourselves, and it will be very, very expensive. Senator Carper. One last question, if I may, Madam Chair. One of the objections to the Clean Water Restoration Act that has been introduced is that it is an expansion of Federal authority over protecting our Nation's waters. Could you just respond to that? Do you think it is? Ms. Browner. No. Senator Carper. I think you said no. Ms. Browner. It is not an expansion. There is nothing that the Army Corps or EPA would do differently with the passage of this law than they did 10, 15, 20, 30 years ago. It would be different maybe than what they are doing today because today I do not believe they are enforcing the Clean Water Act in the way they should. But in terms of the historical interpretation, this simply clarifies, restates, and we continue to do what we did and were able to do to good end in terms of cleaning up our rivers, lakes and streams, protecting our waters. Senator Carper. All right. Thanks very much. Thanks for joining us today. Senator Boxer. Thanks, Senator Carper. Senator Isakson. Senator Isakson. Thank you, Madam Chairman. Following up on Senator Carper's question about 230,000 acres of wetlands that would not be covered, was that because the definition of navigable water always exempted the wetland? Ms. Browner. The issue is that the current Administration has chosen to read a 414 decision, the Rapanos decision, as excluding from the purview of the Clean Water Act things that have historically been within the Clean Water Act. That number is derived by a number of people who have looked at if you apply this new interpretation of the Administration, what falls out of the jurisdiction of the Clean Water Act that had previously been in its jurisdiction. Senator Isakson. Prior to the Rapanos decision, the court decision, if the State of Georgia was cited for a violation of the Clean Water Act, but it determined the point source of the pollution was in the State of Tennessee, prior to Rapanos could it seek a remedy against the State of Tennessee as a State? Ms. Browner. There would be a couple of options open to the State of Georgia. One would be to contact the EPA and ask them to take action against the State of Tennessee. The second would be litigation between the State of Georgia and the State of Tennessee, as there has been litigation between Florida and Georgia. Senator Isakson. In that case, when you were the Administrator, had such a circumstance come up and if they had come to you as EPA Administrator to intercede, do you remember cases where you did? Ms. Browner. Oh, sure. There were cases. What you would do initially is sort of the common sense thing, which is you would reach out to the State of Tennessee and say we think you have a facility within your jurisdiction that is out of compliance. Can you take a look? But there is an authority that EPA has which is if a State has received day to day operation authority for the Clean Water Act, but EPA determines that State is not managing that day to day operation within the confines of the Federal Clean Water Act, EPA can step in and do what is called an over-file, which is sort of reclaim the jurisdiction on a case-specific basis. Senator Isakson. So would it be true then that after the decision, the EPA is now saying, in that example I gave where Georgia goes and says, look, the point of this pollution of the water is not us, you can't cite us, it is Tennessee, in your Administration and others they would have gone and tried to mitigate and work that out with the State of Tennessee. But now because of the definitional interpretation, that would not have taken place? Ms. Browner. In some situations. I think there is still agreement between everybody that certain things are covered by the Clean Water Act. Then there is this dispute that some people have interpreted Rapanos to say things that were historically covered are not covered. An example would be, if that discharge in Tennessee from that polluting plant went into an intermittent stream, a stream that only occasionally had water in it, and that stream then fed into Lake Lanier, there are people who would say that discharge is no longer covered under the Clean Water Act. It is no longer subject to regulation by the EPA because that stream is no longer covered. You have to kind of work upstream to sort these things out. It is a complicated example you have given. Depending on what the discharge is into, you may have people arguing today it is not a covered discharge. Senator Isakson. Well, it may be complicated, but as I read the amicus written by the Attorneys General for those 34 States, that is precisely what they were trying to get from the court, was a clarity that they could call on the EPA when they were a victim and not an accomplice to the pollution. One other point I will make, and I know my time is running out, going back to clean air that it is somewhat analogous to. In Northwest Georgia, we have Dade and Walker Counties. They are non-compliant in clean air standards, but don't generate any pollution, but are south of a major city in another State that does. Because of wind patterns and the Bermuda high, they end up being penalized. They have no remedy under the Clean Air Act, or at least we have never been able to find one to get some waiver or some wiggle room in terms of the penalties under the Clean Air standards. It would be interesting to take this application and look to the Clean Air Act and see if you could find a way. Ms. Browner. There actually are some mechanisms within the Clean Air Act that can provide some relief to them. For example, there are States in the Northeast who have actually sued States in the Midwest over their failure to regulate pollution that is impacting the Northeast. So there is some precedent there. If I might just thank you for recognizing the work we were able to do in Atlanta. It is something I continue to be very proud of. As EPA Administrator, when we could hold a press conference where I determined that a bridge is an air pollution reduction strategy, it was a nice day. Senator Isakson. At the risk of going too long, and there probably were others, that was the singular best example I have ever seen of making an intelligent decision that benefited both the environment and the development community, which does demonstrate you cannot always be adversaries. You can, in fact, be friends. Ms. Browner. But the laws all provide flexibility for common sense interpretations. Thank you for recognizing that. Senator Boxer. Thank you, Senator. Senator Cardin. Senator Cardin. Thank you very much, Madam Chair. Let me first ask consent that my entire opening statement be placed in the record. Senator Boxer. Without objection, so ordered. OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, U.S. SENATOR FROM THE STATE OF MARYLAND Senator Cardin. Ms. Browner, welcome. It is a pleasure to have you back. You bring back good times when EPA was out there fighting on behalf of our environment. I can tell you, we are going to restore those days. I think it is critically important for our Country and I just applaud you for your leadership and I thank you very much for your testimony. I just really want to make a comment about how important this issue is to maintain, as you point out, the jurisdiction of the EPA as it relates to our waters. As you know, Maryland is very much impacted by the Chesapeake Bay. It is the largest estuary in the Country. It depends upon the concerns of many different jurisdictions. It is 64,000 square miles and 110,000 streams flow into the Chesapeake Bay, with 1.7 million acres of wetlands alone. I mention that because wetlands are vital, absolutely vital to the health of the Chesapeake Bay. I visited Blackwater over the weekend and saw what is happening to the marshlands there, and knowing how sensitive that area is to the whole ecology of the region. It is important for species diversification. It is important for drinking water. We could just go down the list. So it is vitally important that we have a Federal partner. The Clean Water Act is critically important, and the enforcement of the Clean Water Act, as historically understood, needs to be maintained. So I thank you for making that point. The people of Maryland have been on this issue now for several decades. Although it is frustrating because the quality is not what we want it to be, we recognize what would have happened if we didn't make the type of commitments that we did in the past, where we would be today. When you were the Administrator, you aggressively worked with us--aggressively as a partner, not to dictate policy, but to complement the work that was done by the Maryland government, the Virginia government, and Pennsylvania with the Susquehanna, and dealing with so many other issues. You used the jurisdiction of EPA so that we could get the type of cooperation from the private sector, as well as from the governmental partners. And that what this is I think all about. I think this bill is extremely important. I am a co-sponsor of the bill. I think it is extremely important that we maintain that partnership. That is what I look at this as, as a partnership. It has never been used in a way to try to dictate a particular policy. We have strong support from the private sector, strong support. They are rooting us on on this. They understand the importance of clean water to their families and to their businesses. I just really want to applaud you for being here and for what you have done, and thank you for continuing to wage the good fight. Thank you, Madam Chairman. [The prepared statement of Senator Cardin follows:] Statement of Hon. Benjamin L. Cardin, U.S.Senator from the State of Maryland Madame Chairman, thank you. For 36 years the Federal Water Pollution Control Act, known as the Clean Water Act, has provided protection to our Nation's waters. The goal of the Act is ``to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'' Protection of our Nation's waters has been vital for contributing to the well-being of our Nation's environment, economy, and health. These protections are now at risk. The Supreme Court's SWANCC ruling in 2001 and its more recent rulings in June 2006--Rapanos v. United States and Carabell v. Army Corps of Engineers, have threatened to leave nearly 60 percent of our nation's waters without Federal protection. At issue in these cases was whether the application of the Clean Water Act to some non-navigable wetlands, based on interState commerce and de-linked from the traditional connection to ``navigable waters,'' exceeded Congress' constitutional authority. The uncertainty left as a result of these rulings over Federal jurisdiction of our Nation's waters threatens many streams, small rivers, and wetlands that are important for: water quality, fish and wildlife habitat, drinking water quality and protection, and for providing protection from flooding and storm surges. Wetlands play a vital role in the Chesapeake watershed--the largest and most productive estuary in the United States. One hundred and 11 thousand miles of creeks, streams and rivers throughout the Bay watershed converge into fifty major tributaries that send water to the Chesapeake Bay. The Bay's nine largest tributaries contribute 93 percent of the total fresh water to Chesapeake Bay, about half of the Bay's total water volume. Headwater streams comprise the majority of streams and waters in a watershed, and they play the most important role within the watershed in improving water quality by filtering runoff, sediment, nutrients, and contaminants before they move further downstream. The Bay's productivity has declined sharply in recent years--as the human population has increased beyond 16 million--and land use practices, which include the destruction of wetlands, are a major cause of this decline. The Chesapeake Bay watershed has an incredibly complex network of 110,000 streams and 1.7 million acres of wetlands, most of which are non-navigable tributaries and non-tidal wetlands. The headwater streams and wetlands of the 64,000 square mile Chesapeake Bay watershed, however, are inseparably bound to the Susquehanna, the Potomac, the James, and the other large navigable rivers that flow to the Bay. Over 500 surface drinking water intakes, serving up to 3 million people, are located in non-navigable headwaters in Chesapeake Bay states. The headwaters of the Chesapeake Bay tributaries serve as a natural filter for drinking water. Additionally, headwater streams and wetlands of the Chesapeake watershed protect downstream areas from flooding as these streams and wetlands temporarily store water thereby slowing flood flows. The Chesapeake Bay and its 3,700 different species rely upon the network of streams and wetlands to provide vital water quality and a healthy habitat. Because of wetlands' vital role to the health of the Chesapeake, I am proud to be a co-sponsor of S. 1870, the Clean Water Restoration Act of 2007 introduced by our colleague Senator Feingold. S. 1870 would clarify the jurisdiction of Federal authority over the waters of the United States in the Clean Water Act by deleting the word ``navigable'' from the Act and replacing it with the term ``waters of the United States.'' This change makes it clear that the Clean Water Act is principally intended to protect the nation's waters from pollution, and not just maintain navigability. This legislation would reaffirm the regulatory status quo prior to the Rapanos and Carabell rulings while not creating ``new'' Clean Water Act requirements. We should let science determine the relationship between wetlands and downstream navigable waters and further let legislation we craft to deal with uncertainties in defining this Nation's waters. Because there are few wetlands and streams that are truly isolated hydrologically, there is scientific justification for their receiving the broadest possible protection under Federal law. I look forward to the testimony from today's witness in helping to clarify why we need to restore the wetland protections that existed prior to the SWANCC, Rapanos, and Carabell decisions. Thank you Madame Chairman. Ms. Browner. Thank you. Senator Boxer. Thank you, Senator. Senator Craig. OPENING STATEMENT OF HON. LARRY E. CRAIG, U.S. SENATOR FROM THE STATE OF IDAHO Senator Craig. Madam Chair, thank you very much. Carol, it is great to have you back before the Committee. I appreciated the relationship we had over the years when you were Administrator. Madam Chair, let me first ask unanimous consent that my full statement be a part of the record. Senator Boxer. Without objection, so ordered. Senator Craig. I have been listening very closely as to what you are saying and what others are asking, so I am not going to repeat nor follow that line of questioning. I will make a brief comment because there are other witnesses to be before us. We know the distinctions and the differences that the great Mississippi River makes, not as a body of water, but as a legal boundary line between different water laws, eastern water, western water. In fact, the Senator from Georgia while talking about it, now his State and others are embroiled in the absence of good State relationships and water laws that the West has and has had now for a century. And the reason was always quite simple: in the West, water was scarce. It was an arid place. In the East, water was almost always a problem more than it was an asset. We worried more about managing it for human safety than we did about managing it for human survival. The Chairman's State and mine and others are perfect examples of phenomenal systems built over the years. Whether you criticize it or praise it with Cadillac Desert, Idaho and California bloom and are phenomenal places to live today because of man's ability to manage and shape water resources, some not so good, most very good. And as a result of that, when the law changes, Western States especially become very frustrated as to what it means. You are telling us that it really means nothing. It clarifies. So the ultimate question is, who clarifies it in the end? I do believe that we will go through a period of time in the courts and with fights all over again as to what it really means, because we know what it means today and what it doesn't mean. We fought that battle out. You were right out there on the front, no dispute about that, doing your job as Administrator as you saw the law and interpreted the law at the time. Push-back? You bet. There was a lot of push-back as it related to who had the authority, whether the Army Corps of Engineers was appropriately defining what a wetland was, blah, blah, blah, blah. None of us dispute the value of water. The great debate in the West today is what are we going to do? We are populating at a higher rate than we ever have before. We are going to have to reallocate water. I want that allocation and that relationship primarily to reside in Laramie or Boise or Sacramento, and not Washington, DC, and not with the Administrator of the EPA. Period. End of statement. But having said that, none of us dispute water quality. And as we fight over water quantity, we know that water quality is very, very important, more so than ever before. We understand the intermittent relationships of wetlands and aquifers and filtering systems and riparian zones and all of that much more so than we ever did before. And probably the Clean Water Act has helped us do that. I don't dispute that. Here is my greater frustration with this reauthorization. I think the Senator from Wyoming used the old adage that is very typically Western about water and whiskey in his opening comments. I will take it a step further. I really do believe that this change from navigable to waters of the U.S. will put us in a situation where any puddle--and I will use that word-- that can float a legal brief is now in question. And don't think it won't be tried in the courts. Environmental groups, groups of good cause, will determine they can shape and control water more than ever before, and the clarification will not come from the Administrator of EPA. It will come from a judge. Where the Chair and I disagree on occasion about the Ninth Circuit, it is an activist court and we know it to be that, and it will make these determinations, and judges will become water masters in the West instead of the States. Therein lies my greatest frustration. Let me close--my time is up--by suggesting this. Water quantity that you say is Western water law, that Malcolm Wallop talked about who determines, will become a factor of water quality under this definition more than ever before, in my humble lay opinion. Thank you very much. [The prepared statement of Senator Craig follows:] Statement of Hon. Larry E. Craig, U.S. Senator from the State of Idaho The Clean Water Restoration Act, S. 1870, deletes the term ``navigable'' from the Clean Water Act (CWA) and replaces it with a new legislative definition of ``waters of the United States'' that includes all ``intraState waters'' and all ``activities affecting these waters.'' These are far-reaching changes to the CWA. This is the age old issue of State versus Federal water rights. In Idaho, we believe in State preemption, where the State has the right to manage the local water bodies. The legislation that we are reviewing today, if enacted, would change the definition of navigable water to anything that will float a legal brief. The title sounds harmless, but if S. 1870 is enacted and its supporters have their way, Federal bureaucrats will have the authority to visit farms, ranches, and even suburban lawns to gauge how your normal activities are affecting every drop of water that falls on your land. This bill will expand the reach of the Federal Government and its potential impact on individuals, businesses, and local government. While S. 1870 intends to clarify the jurisdiction of the United States over `waters of the United States,' it broadens the bodies of waters that could be subject to the legislative powers of Congress. Examples of where S. 1870 could negatively impact private land owners include: Intermittent streams as well as grass waterways that farmers typically access with heavy equipment and maintain could be impacted. A farmer might possibly need to obtain a permit to perform maintenance under the new definition of ``navigable waters''. In addition, farmers might also be required to obtain a permit before using chemicals to control weeds and insects in fields, due to possible runoff impacts into ``intermittent streams.'' Should it be every drop of water or should there be some limit to the power of the Federal Government to reach into: lakes, rivers, streams (including intermittent streams), mudflats, sand flats, wetlands, prairie potholes, wet meadows, playa lakes, natural ponds, groundwater, and all impoundments of the foregoing. The language ``all impoundments of the foregoing'' would include roadside ditches. Since many of these ditches exist by the road for drainage purposes, the business practices of road builders and road maintenance could be impacted. The provisions would also add an untenable workload on reviewing agencies who must apply the additional changes to other regulatory decisions regarding point discharges, storm water management, and TMDL compliance. It would essentially grant the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers veto power over local land use policies (regulating all activities that ``affect'' water). Additionally, thirty years of experience since the passage of the Federal Water Pollution Control Act indicates that states most efficiently protect the water quality of smaller and intermittent bodies of water and wetlands. S. 1870 would endanger this local protection. The bill makes no attempt to legislate within the bounds of Congress' Constitutional authority, instead it redefines the jurisdictional limits of the Federal Government to include all waters, regardless of their impact on interState commerce, and defers to Federal courts to come up with a jurisdictional limit that Congress did not. Good rulemaking will solve this issue-- defining, with adequate public comment, what is ``isolated''; what constitutes a ``tributary. Senator Boxer. Thank you. Let me say this, given the time we are under, the constraints because we have a very good panel to hear from, what I am going to do now is, before Carol Browner leaves, some of us have some documents to place into the record. This would be the moment to explain those documents. Senator Craig, do you want to say what your document is? Senator Craig. I just would ask unanimous consent. It is a letter from a county commissioner and a board of county commissioners in the State of Idaho, Lemhi County. I would ask unanimous consent that it be part of the record. Senator Boxer. Absolutely. [The referenced document follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Senator Boxer. Senator Cardin. Senator Cardin. The statement from the Chesapeake Bay Foundation in support of the Clean Water Restoration Act. Senator Boxer. Very good. [The referenced documentwas not received at the time of print.] Senator Boxer. Any colleagues on this side? Yes, Senator? Senator Barrasso. Thank you very much, Madam Chairman. Yes, in addition to the one I previously put in the record from the Wyoming Rural Water group, I also have a letter from the Wyoming Stock Growers Association that I would like to have included in the record. Senator Boxer. Without objection, so ordered. [The referenced document was not received at the time of print.] Senator Boxer. Senator Whitehouse, do you want to explain what you have here? Senator Whitehouse. Yes, I would like to, if I may, Madam Chair, with unanimous consent put into the record a table showing a State-by-State analysis of the overlay between the stream categories at issue here in the Rapanos decision, and the drinking water populations of the State which would indicate, relevant for instance to my colleague from Wyoming's question, that there are 177,871 Wyomians whose drinking water risks being affected by waste or sewage or chemicals dumped into start-reaches or intermittent ephemeral streams presently regulated, but at risk of losing regulation as a result of the Rapanos case. Senator Carper was here. He is fortunate. He has none. Georgia, it is 3.6 million people, and Idaho, 242,589; in Louisiana, Senator Vitter's State, 1,071,000; in Maryland, 3.7 million water drinkers; and the last, our Chairman's State, the great State of California, 14.2 million people's drinking water could be affected by this decision. I would ask that to be made a matter of record. Senator Boxer. Well, without objection, we will put that in. [The referenced document follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Senator Boxer. I have several things: the statement of Russ Feingold, who wrote this important bill, the Clean Water Restoration Act of 2007; the Office of the Governor of the State of Vermont supporting the legislation--a Republican Governor; the Office of the Governor of the State of Montana supporting this legislation; and a communication from 15 Attorneys General from our States supporting this legislation. Also, I find this really intriguing. There is a document here, and I am going to put this one page in, where we have a quote by a member of the public during a workshop on the guidance held in Scottsdale, Arizona after Rapanos. This is what this gentleman says. I think you will all appreciate this, the frustration that is out there: ``We are I think as a community very frustrated with the guidance''--this is the guidance they got after Rapanos, and by the way, the guidance that now is causing big delays, much worse delays than before Rapanos--``We don't know what a significant nexus is. We don't know what a navigable water is. We don't know what a relatively permanent water is. We don't know how long a delineation will take. There has been a suspension of normal processing of delineation since 2006. One of the interesting things that is happening is this, you can go under the old rules and people are just saying please, let me go under the old rules, like they loved the old rules. We hated the old rules, but now we would just love to go under the old rules.'' It is very interesting. You talk about an activist court. The Supreme Court is an activist court on this one, several members, not all. And the last thing I want to put in the record, I think this is also intriguing and I hope my Republican friends hear this. This is part of the legislative history of the Clean Water Act. This is a quote from the then-Senator Majority Leader Howard Baker, who was the former Chief of Staff to President Reagan later. This is what he said: ``A fundamental element of the Water Act is broad jurisdiction over water for pollution control purposes. Comprehensive jurisdiction is necessary not only to protect the natural environment, but to avoid creating unfair competition. Unless Federal jurisdiction is uniformly implemented for all waters, discharges located on non-navigable tributaries upstream from the larger rivers and estuaries would not be required to comply with the same procedural and substantive standards imposed on their downstream competitors.'' Then he said, ``We cannot expect to preserve the remaining qualities of our water resources without providing appropriate protection for the entire resource.'' And he says finally here, Let me emphasize that the protection of water quality must encompass the protection of the interior wetlands and small streams.'' So I think if you look at, first of all, this is such a bipartisan issue, which really pleases me. When Ms. Browner, former Administrator of the EPA, she said two Republicans and two Democrats came together with the same stand. We have Republican Governors writing to us, Republican Attorneys General. I think this is not a partisan matter. I just want to say, Carol Browner, thank you. Every time you come here, this is what I love about you. You are clear. You are straight from the shoulder. It is just unadorned testimony, and we learn a lot whether we agree with you as our side does in most cases, or disagree as some of our friends do. You are clear and you are knowledgeable. Thank you very much. We so appreciate your being here. Ms. Browner. Thank you. Senator Boxer. And now we will call up our second panel. It is my intention to go straight to this panel. So we welcome you: The Honorable Alexander Grannis, Commissioner, New York Department of Environmental Conservation; Joan Card, Water Quality Division Director, Arizona Department of Environmental Quality; The Honorable David Brand, Sanitary Engineer, Madison County, State of Ohio; and Randall P. Smith, who we have all been introduced to I think before, Smith 6-S Livestock. We welcome you. We are going to start off. We will go back and forth from majority witness to minority witness so we get on the one hand and on the other hand testimony. So we will start with Hon. Alexander Grannis, Commissioner, New York Department of Environmental Conservation. Welcome, sir. STATEMENT OF ALEXANDER GRANNIS, COMMISSIONER, NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION Mr. Grannis. Good morning, Madam Chair. I am very pleased to be here on behalf of the department that I head and also the State of New York. As you stated, I am the Commissioner of the State Department of Environmental Conservation. Obviously, this matter is of great importance to the people of New York. The Clean Water Act has been integral to the protection of our Nation's water for more than 30 years, as you acknowledged in your opening statement. Unfortunately, rulings by the U.S. Supreme Court in the SWANCC case and the Rapanos case have put those longstanding protections in jeopardy. That is precisely why we are here today to voice our strong support for S. 1870, the Clean Water Restoration Act of 2007. As you noted, for 35 years the Clean Water Act was understood as regulating the discharge of pollutants, including fill, in the traditional navigable waters and non-navigable tributaries and wetlands adjacent to these water bodies. This view of the scope of the Act was contained in regulations promulgated by both EPA and the Army Corps, as Administrator Browner just testified to. More precisely, it was embodied in the regulatory definition of the term ``waters of the United States,'' a legal definition that is fundamental to the scope and jurisdiction of the Clean Water Act. New York and the vast majority of States have expressed strong support for the EPA and Army Corps' longstanding position on the broad scope of the Clean Water Act. As you mentioned, 34 States and the District of Columbia filed an amicus brief before the Supreme Court which supported this regulatory definition during the Rapanos proceedings. The position advocated in the States' amicus brief is essentially identical to that presented by the Clean Water Restoration Act. New York, over time, has lost an estimated 60 percent of the wetlands since its early colonial times. Many other States have suffered even greater losses. The member from Louisiana has been talking about that, and this has been an issue across the Country. Restoration efforts are costly, difficult and time-consuming. Our greatest fear is that once wetlands and the biodiversity which they foster are lost, it may be difficult, if not downright impossible, to reestablish them. Preserving wetlands and small streams through effective Federal statutory and regulatory directives is environmentally beneficial, economically effective, and provides reasonable certainty to the regulated community. It is in our Nation's interest to protect the wetlands and small streams that remain, and to prevent the future need for costly restoration efforts. The Clean Water Restoration Act, we believe, is critical to achieving this goal. Wetlands generally drain into adjacent tributaries or other waters, and the health of the lower reaches of our watersheds rely on the vitality of up stream tributaries and their adjacent wetlands. Federal agencies must continue to apply the Clean Water Act to both non-navigable tributaries and to the wetlands adjacent to them. To do otherwise would undermine the Act's purpose of restoring and maintaining the physical, chemical and biological integrity of the Nation's waters. For 35 years, the States have relied on the Act's core provisions and have structured their own water pollution programs accordingly. We have done so in New York. While States play a vital role in administering parts of the Act, being forced to assume the role of sole responsibility for regulating activities on wetlands adjacent to the non-navigable tributaries and smaller streams would be a very heavy burden. New York State benefits from some of the most extraordinary water resources in the Country. Industries have located in our State because of our water supply. Tourism and recreation thrive along our waterways. Protecting these resources can save money. New York City's successful effort to avoid building an $8 billion water filtration plant is based in large part on protecting and restoring these resources. The fact is that none of the improvements made to New York's water resources over the last 35 years could have occurred without the active participation and partnership with the Federal Government. We need to continue the Federal role in this partnership. By reaffirming and articulating the original intent of the Clean Water Act, S. 1870 effectively frames the Federal role in wetland and small steam regulation and ensures that New York and other States once again be able to work together to protect and enhance these essential resources. It is for these reasons, Madam Chair, that we strongly support enactment of S. 1870. Thank you. [The prepared statement of Mr. Grannis follows:] [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:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Senator Boxer. Thank you, sir, very much. So we are going to move now to Joan Card. Joan Card is the Water Quality Division Director from the Arizona Department of Environmental Quality. We welcome you. STATEMENT OF JOAN CARD, WATER QUALITY DIVISION DIRECTOR, ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY Ms. Card. Thank you very much, Madam Chair and members of the Committee. Thank you for the opportunity to testify today regarding S. 1870, the Clean Water Restoration Act of 2007. The Arizona Department of Environmental Quality implements a number of water quality protection programs in our State, including the Clean Water Act. Arizona's Governor, Governor Janet Napolitano, issued a letter of support for the legislation and we thank Senator Feingold and the co-sponsors in this Committee for your leadership in this matter of great importance to our State. The Arizona Department of Environmental Quality has very serious concerns about the potential impact of the 2006 plurality decision in the Rapanos and Carabell cases on Clean Water Act programs in Arizona. The decision could minimize, if not devaState, surface water quality protections that have been implemented in Arizona at least since the 1972 amendments. While the decision alone is of grave concern, the implementation guidance jointly issued by the EPA and Army Corps of Engineers further puts Arizona's waters at great risk. Our specific concern for Arizona stemming from the Rapanos decision and guidance is the potential elimination of Clean Water Act protections, particularly section 402, which is the NPDES program, point-source permitting protections for ephemeral and intermittent or non-perennial waters and our headwaters streams. Ephemeral waters, as you may know, are those streams that contain surface flow only in response to precipitation and intermittent waters of those streams that contain continuous surface flow only part of a year, for example from a seasonal spring or a response to snow-melt. Arizona's landscape includes a vast network of these non- perennial streams. Arizona's largest water body, second in size only to the perennial-flowing Colorado River, which forms our western border that we share with Nevada and California, is the Gila River. The Gila River, an interState stream originating in our neighboring State of New Mexico, drains two-thirds of the land area in Arizona. The Gila flows intermittently in very wet years, but in time of long-term droughts, such as we are presently experiencing, this massive water body is largely dry and any flow is highly disconnected. The Gila's main tributaries include the Salt, the Santa Cruz and the Hassayampa Rivers, which are very large and mainly ephemeral streams. Arizona's largest and fastest-growing counties, Maricopa, Pima and Pinal Counties--I believe Maricopa is the fastest- growing county in the Nation--are located in the heart of the mostly ephemeral Gila River drainage. Subdivisions require sewage treatment facilities, and many of these facilities construct outfalls and discharge to ephemeral arroyos in their neighborhoods. These facilities currently hold Clean Water Act point source permits for discharges of wastewater that are protective of aquatic life, agriculture irrigation, and livestock watering, and body contact uses. Without Clean Water Act protections, the Arizona Department of Environmental Quality will be unable to require permits that are protective of these uses. Arizona law prohibits my agency from being more stringent than the Federal Clean Water Act. Arizona's non-perennial stream water quality has benefited from Clean Water Act protection since the early 1970's when 402 point source permits were issued for several facilities discharging wastewater to large ephemeral streams, including permits for major publicly owned treatment works serving the cities of Tucson and Phoenix, and discharging large amounts of effluent to the Salt and Santa Cruz Rivers, which are tributaries to the Gila River, as I have described. Combined, these facilities treat over 200 million gallons per day of municipal and industrial sewage and still discharge these large ephemeral waters under 402 point source permits. The Rapanos decision, and principally the guidance, have presented the opportunity for these large POTWs and other dischargers in Arizona to argue that their discharges do not require Clean Water Act pollution permits. The impacts of the Rapanos decision and guidance in Arizona may be widespread, impacting surface water quality standards for nearly all of our surface streams and nearly all of our 160 section 402 permits for wastewater and stormwater discharges, to waters other than the Colorado River, which has been deemed by the Army Corps of Engineers as Arizona's only traditionally navigable water. Without these Federal Clean Water Act protections, which have been in place in Arizona for 35 years, my agency may not be able to protect Arizona streams for aquatic life uses, including species like Arizona's native Gila and Apache trout. We may not be able to protect surface streams for agricultural irrigation use or livestock watering. And we may not be able to protect wastewater discharges to our most pristine, high- quality streams like Sabino Creek and the Little Colorado River. Our Governor and the Arizona Department of Environmental Quality support the Clean Water Act Restoration Act of 2007 because it ensures the longstanding, pre-Rapanos Clean Water Act protections and programs remain in place to protect the surface water resources of our State. Thank you. [The prepared statement of Ms. Card follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Senator Boxer. Thank you very much. And finally, our last but not least witness is Randall Smith, Smith 6-S Livestock. Welcome. STATEMENT OF RANDALL P. SMITH, SMITH 6-S LIVESTOCK Mr. Smith. Thank you, Chairwoman Boxer, Ranking Member Inhofe, members of the Committee. My name is Randy Smith. I am a cattle rancher from Glen, Montana. I am the Chairman of the Big Hole Watershed Committee in southwestern Montana. I appreciate this opportunity to provide testimony regarding the jurisdiction of the Clean Water Act. As a member of the National Cattlemen's Beef Association and the Montana Stock Grower's Association, I am proud of our industry's tradition as stewards and conservators of America's land, air and water. Cattlemen work hard every day to protect these precious resources. My comments today address efforts to redefine the jurisdiction of the Clean Water Act. NCBA and MSGA do not agree with Senator Feingold that his bill restores congressional intent regarding the extent of Federal jurisdiction over our waters. Instead, the bill ignores congressional intent and greatly expands the Federal jurisdiction far beyond anything Congress imagined at the time of enactment. U.S. cattlemen own and manage nearly one-third of all the acreage in the continental United States, more land than any other segment of agriculture or any other industry. Therefore, any change in the definition of waters of the United States directly affects many cattlemen because they operate on much of the land where wet areas are located. Deleting the word navigable from the definition of waters of the United States would have a profound and negative affect on America's beef cattle business. This bill would result in the imposition of huge financial burdens on farmers and ranchers, and would take away private property rights to the productive use of their land, and would do little to better our environment. It is one thing to regulate navigable waters and wetlands that have significant nexus to those waters because they have a true environmental value. It is another thing to regulate every wet area or potentially wet area simply because it is wet, regardless of the fact that these areas provide very little, if any, environmental value. To think that a rancher would be forced to get a section 404 permit whenever a cow stepped in a dry wash or a puddle is nothing less than shocking. Cattle producers support a reasonable program for conserving and enhancing waters that have true environmental value. We believe such waters are currently being protected by State and Federal Governments. Any clarification of jurisdiction should take place within our regulatory process, not Congress. The EPA and the Army Corps of Engineers are very capable of doing this work. There is no need for this legislation. Many cattle producers also voluntarily implement conservation practices in an effort to be as environmentally friendly as possible in their operations. Just one example is EQIP, which has invested billions of dollars in water quality projects. Farmers and ranchers are excellent stewards of their land and natural resources water. Their livelihoods depend on it. They should be enabled and encouraged through programs like these to continue to produce our Nation's food and fiber in an environmentally sound and sustainable way. The Big Hole Watershed Committee is just one example in Montana of a voluntary effort involving diverse interests, including Federal agencies, State agencies, county government, wildlife, conservation and agricultural groups coming together to work toward a goal of a cleaner and more plentiful water supply. State and local partners have been critical to our success. This legislation would take away their seat at the table. All authority over our Nation's water would be given to the Federal Government. Cattle producers agree that we need to continue to protect the quality of our Nation's surface and groundwaters. But, no expansion of Federal jurisdiction is necessary to accomplish this goal. Federal agencies already have ample authority under existing law to protect water quality. It is essential that the partnership between the Federal and State levels of government be maintained so that States can continue to have the essential flexibility to do their own land and water use planning. Any attempt at usurping authority over these issues and vastly expanding Federal jurisdiction must not be allowed. Thank you. [The prepared statement of Mr. Smith follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Senator Boxer. Thank you. Sir, Mr. Smith, I just feel like, in all due respect, you may have missed the savings clause in the Feingold bill. Let me read it to you because what you say is now you are going to have to get a permit for it, is explicitly an exception here. So let me tell you what I am talking about. You do not have to get a permit under the Feingold bill and under current law for a wetlands permit if you are doing normal farming, ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, forest products or upland soil and water conservation practices. You don't need it for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such a dikes, dams, levees, riprap, breakwaters. I am not reading it all. You don't need a permit for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches or the maintenance of drainage ditches. You don't need it for the purpose of construction of temporary sedimentation basins or construction sites, which does not include placement of fill into the navigable waters. You don't need it for the purpose of construction or maintenance of farm roads or forest roads or temporary roads. It goes on and on. And you don't need a permit if your activity results from any activity with respect to which a State has an approved program. So the way you describe it, I couldn't support the Feingold bill, but that is not what the Feingold bill does. I would ask Mr. Grannis and Ms. Card, who support the bill, is that your understanding, that there is this savings clause and that these things are not going to have to get a permit? Ms. Card. Yes, Madam Chairman, I agree. Senator Boxer. That was important. Mr. Grannis. Mr. Grannis. We definitely agree. We have farming interests in New York, business interests, and they have all lived with the existing authority, both at the Federal Government and the State Government, over our wetlands. Senator Boxer. Yes, that is the point. And agriculture is my biggest industry in my State. So clearly, I hope, Mr. Smith, maybe if you would be willing to meet with us, we want to show you this. We would like to reassure you of this. And I would say to Mr. Brand, your position, it seems to me, will result in a situation where water pollution may not be controlled at the source, and local governments will have to shoulder the cost of more expensive drinking water treatment and infrastructure. I don't understand why anyone in local government--and I came from local government--would want your county to have to pay for the extra infrastructure necessary to clean up water that our families depend upon. Would you agree with that, that this is a consequence if we step out of this, then you are going to have to be the one? Because you know, Senator Whitehouse--really I appreciated what he put in the record, showed how many systems are at risk that serve our families, in my case many millions. And now if we don't apply this Act, somebody is going to have to clean this up at the end of the day if you find that polluters are dumping toxins into these previously covered waters. So that would be just really more a comment that I hope that our folks who oppose this will take a look at what you are opening up here, which is much more costs for local government, local people. I think if we continue in this limbo that it is going to be very difficult to figure this out. In any case, that is more a statement than a question. Senator Barrasso. Senator Barrasso. Thank you very much, Madam Chairman. I would just like the record to reflect that of all of us here, the only guy that brought his own water with him was the rancher from Montana. [Laughter.] Senator Barrasso. So thank you, Mr. Smith. Senator Boxer. He doesn't trust our water at the Capitol. Senator Barrasso. No, ma'am. He knows more about it than we do. Senator Boxer. I think we ought to change what we do up here maybe. [Laughter.] Senator Barrasso. Mr. Smith, I appreciate your being here because I read the bill the same way you do, what it does to the ranchers and water users in Wyoming. I am just wondering if Wyoming as well as Montana, strong ranching industries, and Idaho, can you further elaborate on what you as a rancher, and Wyoming ranchers, can expect in terms of just day to day operations of your ranches if this bill is passed? Mr. Smith. Senator, I guess we really don't know what the bill is going to do. It frightens me because it is taking away local control. Yes, the Clean Water Act has worked, but it is being defined more critically, I guess, for lack of a better word. To take out the navigable part of the streams just opens up a whole can of worms. On our ranch, which isn't a large ranch, but we are a family ranch, I can see the potential for hundreds, if not thousands, of permits if this bill was passed. The time of getting those permits from the Federal Government right now is terribly slow at best, and it always has been slow. I guess there is some sort of fast track movement within the Corps of Engineers, but in our watershed committee, just to do some watershed work along the Big Hole River, it has taken several months to get permits, maybe even almost a year just for doing water quality work. So it is a terrible effect on the ranching community, in my opinion. Senator Barrasso. The Wyoming Stock Growers wrote to me and they say their opinion is that the expansion of Federal jurisdiction in this bill would effectively give the Federal Government an authority over private lands in Wyoming and obviously in Montana as well, and over the ranches, kind of equal to the authority that are currently exercised over public lands and national forests. Is that your concern as well? Mr. Smith. Yes. We maintain our water systems on a lot of our Federal land out of necessity. If we had to, for instance, have a permit for the cows to cross a stream, every time they crossed a stream, you can see it is a little bit ridiculous. Maybe it is mind-boggling, I don't know, to me, it certainly doesn't have much common sense. There may be areas in the Country where we need to have this sort of legislation, but out west, we don't need it. Senator Barrasso. And this is something you wouldn't want to have to go to the courts, go to a judge, and try to deal with it on a day to day basis, and make your life very difficult, I would imagine. Mr. Smith. Yes. Every time we do anything, it seems like it is litigated. And this looks to me like it is a dream for a litigator, a lawyer's dream. I don't want to offend anybody, but we use lawyers enough already and sometimes the best interests aren't always followed. Senator Barrasso. Thank you, Madam Chairman. Senator Whitehouse. I would like to ask Mr. Brand and Mr. Smith a very simple question. If it were clear and without dispute that the entire purpose and function of the Clean Water Restoration Act was simply to restore the Clean Water Act to running exactly the way it had for all those years before the Rapanos decision created this uncertainty about what navigability meant, would you object to that? Are you objecting to the underlying traditions of the Clean Water Act? Mr. Brand. I guess the question I would have back is---- Senator Whitehouse. Answer my question before you ask a question back. Mr. Brand. The Clean Water Act has been interpreted differently depending on what year you are asking about. The Clean Water Act has seen most of its change in interpretation occur in the last 10 years. In the last 10 years, it is very different from when it was originally enacted and the problems are very different. Senator Whitehouse. I guess my question is, are you arguing that this piece of legislation would create something new that you don't like? Or if you would accept the proposition that this just goes back to the way things were beforehand, are you objecting also the way things were beforehand? Are you objecting to the underlying Clean Water Act as it was enforced before the Rapanos decision? Mr. Brand. I don't think we are objecting to the Clean Water Act, but the interpretation of the Act is very different and we do not buy in one bit to the fact that this is restoring some protection that was already there. This is clearly an expansion. So if we can get past that and define clearly what the limits were of the Clean Water Act prior to Rapanos, I think we could answer that question. But I think to say that enough times and to keep repeating that doesn't make it true that the Act has changed over the years, and what you are saying you are going back to never existed until the last few years. Senator Whitehouse. Well, it actually kind of does make it true, because the way courts would look at this is they would take the language and they would want to see what the congressional intent was in this. In trying to divine congressional intent, they would look at the legislative history of the Act. And when they look at the legislative history of the Act, they are going to look at what you are saying right here in this room today. They are going to look at what I am saying right here in this room today. They are going to look at the record of this hearing, and the record of this hearing could not be more indisputably clear that the only intention of this piece of legislation is to go back to the status quo ante before the Rapanos decision and reinState the Clean Water Act as it had been enforced for those 34 years. I think nobody with a rational power of observation and any kind of honorable intent toward the process of this could dispute that is what we are trying to get to. And certainly I think any court looking back would see that loud and clear. I appreciate my friends on the other side raising this point and challenging it because it gives us the opportunity here to reinforce over and over again, and reinforce the legislative history that a court will look at that all we are trying to do is to go back before the status quo ante and pick up where we left off, with a train of analysis and precedent that regulators in Arizona for many years--I see Ms. Card nodding her head--regulators in New York for many years, they knew exactly what they were doing. The developers knew what they were doing. The lawyers who tried to work this knew what they were doing. It would create enormous clarity, in my view, if that were the understanding. Is that of value that you as regulators, Ms. Card and Mr. Grannis, are trying to achieve here, is to go back and sort of recapture the legislative history, the precedent that had built up around the previous Clean Water Act and continue forward in an undisturbed way? Ms. Card. That is absolutely correct. If I could just say to suggest that this legislation is a can of worms and an unprecedented expansion is frankly just not a recognition of the last 35 years. For example, in Arizona the Federal District Court in 1975 regarding point source pollution from a hard-rock mine said a legal definition of navigable waters or waters of the U.S. within the scope of the Act includes any waterway within the U.S., also including normally dry arroyos through which water may flow, where such water will ultimately end up in public water such as a river or stream tributary, et cetera, et cetera. That is a 1975 Arizona District Court opinion that set the stage for the last 30 and more years for us to protect waterways against pollution under the Clean Water Act. Mr. Brand. Madam Chairman, if I may? Senator Boxer. Certainly. Mr. Brand. I believe, Senator, that the Rapanos decision did that. They looked at the legislation and they came down and said that it was clearly an expansion beyond repute. The problem with the Rapanos decision is that it threw this significant nexus test in there which muddied the waters. That is the problem we have, is the significant nexus. It is not that the significant nexus test is inappropriate. It is that has caused the environmental agencies to turn around and try and find out how far ``significant'' can be pushed to create some kind of nexus between that isolated wetland in the middle of that field that may not be anything more than a replant area in a bean field, and try and establish through not point source pollution, but through non-point source pollution that it has some connection to some stream which has some connection to some navigable water, and then exercise control over it. The court did make that clarification. They have done that. Senator Whitehouse. Mr. Brand, I hear you saying these things, and even from my own experience as an Attorney General and working in the Governor's office in my State, I just know them not to be true. I just know them not to be true. It is discouraging to me to hear you say that there has been a tradition of trying to develop the Clean Water Act from its very beginnings. All the way through, the question of navigability ha always been an important question. It was resolved over the years through endless administrative determinations that were able to create the connection that was important here between the safety of the water you and I drink and the regulatory reach of this statute. It is a very natural connection. This is to protect clean water. We drink clean water. What could be more natural than to have the regulatory reach of the statute protecting clean water reach as far as what is necessary to make sure that the water we drink is clean? There aren't puddles in bean fields being regulated and never have been under this. It has always had this clean water protection purpose. Maybe there is some crazy place where this happens, but in no regulatory agency I have ever been around or near has that ever happened. What I worry about is that if we don't go back to where we were before, then we are trying to redefine something. And in that redefinition, there is going to be enormous room for both mischief and mistake and for lawyers to come into this and complicate life, and have to go back and re- litigate issues that were settled. I feel really badly. I think, Mr. Smith, you seem like an absolutely wonderful man. I think if we were in another forum, I would love to go out and sit down and have a beer with you or have a walk with you, or let you show me your farm. You sound like just a wonderful, wonderful guy. And yet, what you say about this piece of legislation bears absolutely no relationship to the reality of this legislation as I know and believe it to be. I guess all I can say from my perspective here is that I hope the regulators here will chime in because you live with this all the time. The purpose of the exercise here is to protect the water that we drink. For 34 years, people who are Republicans and Democrats worked terribly hard to try to make it right to do that. The EPA has no interest in chasing around cow puddles that don't affect anybody's clean water. They have better things to do. They have limited resources. They try to target this stuff. I just think that we create such risk of confusion, of mischief, of damage, of danger to clean water, of all these things, if we don't pick up where we left off, with what has been done by professionals in Democratic and Republican Administrations for decades. It is frustrating to me to hear these worries, because I know they are heartfelt. I know you have these concerns. I wish there were a way I could more clearly reassure you that they just make no sense at all, at least from this Senator's perspective. Mr. Grannis could you--I see both of the regulators nodding their heads. Senator Boxer. Sure. And I will say, Senator Barrasso---- Senator Whitehouse. I apologize for going over. Senator Boxer. No, that is all right. We will make it a closing statement and we will give that opportunity to Senator Barrasso, and then I will make my final remarks. Mr. Grannis. Senator, we agree completely. Our goal here is not to expand our jurisdictional authority. It really is to go back to the pre-Rapanos effective collaboration we have had with the Federal Government for over 30 years. It has had remarkable results in cleaning up our water. Our water knows no jurisdictional boundaries. It is not partisan. It starts in the Adirondacks. It starts at the headwaters of the Susquehanna River and the Delaware River. What we do in those northern headwaters in wetland protections and other kinds of things have their effects 300 miles down river. So it is very important to make sure there is a Federal floor on what people do along these great waterways, recognizing the interconnection of all of these smaller tributaries, whether they flow full-time or part-time in wetlands to the overall good of the water quality. That is our goal. We are not seeking new authority, expanded authority. We are happy and I think very effective with the authority we have, and that is where we want to end up. Senator Boxer. Senator Barrasso. Senator Barrasso. Thank you very much, Madam Chairman. Just to say from my opening statement, in Wyoming where the frontier spirit of smaller government and individual liberty are still sacred traditions, where we have a State of people like Mr. Smith, we are always very concerned about the Federal Government's involvement in issues, and most specifically related to our water. We read these bills very carefully. We think about them very carefully, and we see all of the things that Ms. Smith testified today as potential downside risks and we don't see any up-side benefit to the hard-working ranchers of our communities. Thank you, Madam Chairman. Senator Boxer. I would say that in our State, we don't have a theology about who should make sure that the water is safe and clean, but we want it clean. And the most efficient way to do that is what we ought to do. I would argue after Rapanos there is such confusion that even the people who didn't like the whole system before are begging for it back. These are anecdotal now, but I put something in the record about that. So I think what Russ Feingold has done, and I praise him mightily for it, is he wants to protect our water quality in a way that works, that goes back to the way it was done, keeps the same exemptions in there so that folks like Mr. Smith are not going to be burdened when they are working their farms. He brings certainty back to a situation where projects ironically are being delayed because nobody knows what anybody meant. That is extremely ironic that the views of the people who say let's weaken the Clean Water Act resulting in longer delays to get projects built because of the confusion. So I am very hopeful we can work together. I don't know that there is room here. I know we are going to try to get this resolved legislatively. If it not going to happen this session of Congress, I predict to you it will happen in the future. I just want to say to this panel, you have all been really helpful to us. You have been clear, straightforward, and we really appreciate your all coming here at I am sure some inconvenience. You did that for your Country and we appreciate it very much. Thank you all. We stand adjourned. [Whereupon, at 12:03 p.m. the committee was adjourned.] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] [all]