THE CLEAN WATER RESTORATION 

ACT OF 2007 

(110–116) 

HEARING 

BEFORE THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

APRIL 16, 2008 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

THE CLEAN WATER RESTORATION ACT OF 2007 

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41–961 PDF 2008

THE CLEAN WATER RESTORATION 

ACT OF 2007 

(110–116) 

HEARING 

BEFORE THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

APRIL 16, 2008 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia, Vice 

Chair 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

ELLEN O. TAUSCHER, California 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

DORIS O. MATSUI, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

MAZIE K. HIRONO, Hawaii 

BRUCE L. BRALEY, Iowa 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ACURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

JERRY MCNERNEY, California 

LAURA A. RICHARDSON, California 

ALBIO SIRES, New Jersey 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

STEVEN C. LATOURETTE, Ohio 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

LYNN A WESTMORELAND, Georgia 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

ROBERT E. LATTA, Ohio 

(II) 

(III) 

CONTENTS Page 

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

TESTIMONY 

Adler, Professor Jonathan H., Director, Center for Business Law and Regulation, Case Western Reserve University School of Law ..................................... 48 

Albrecht, Virginia S., Partner, Hunton and Williams, LLP, on behalf of the 

Waters Advocacy Coalition .................................................................................. 48 

Buzbee, Professor William W., Director, Environmental and Natural Resources Law Program, Emory Law School ......................................................... 48 

Card, Joan, Director, Water Quality Division, Arizona Department of Environmental Quality ................................................................................................ 96 

Cope, Hon. Robert, Commissioner, Lemhi County, Salmon, Idaho, on behalf 

of the National Association of Counties ............................................................. 71 

Cruden, John C., Deputy Assistant Attorney General, U.S. Department of 

Justice, Environment and Natural Resources Division .................................... 10 

Gerber, Darrell, Clean Water Action Alliance of Minnesota ................................ 117 

Grumbles, Hon. Benjamin H., United States Environmental Protection Agency, Assistant Administrator for Water ............................................................... 10 

Hulsey, Hon. Brett, Dane County Supervisor, District 4, Madison, Wisconsin . 71 

Jacobs, Hon. Kristin, Broward County Commissioner, District 2, Fort Lauderdale, Florida .......................................................................................................... 71 

Lancaster, Chief Arlen, United States Department of Agriculture, Natural 

Resources Conservation Service .......................................................................... 10 

Matthiessen, Alex, Hudson Riverkeeper and President, Riverkeeper, Inc. ........ 96 

Munks, Hon. Don, Skagit County Commissioner, District 1, Mount Vernon, 

Washington ........................................................................................................... 71 

Petersen, Chris, President, Iowa Farmers Union ................................................. 71 

Pifher, Mark, Director, Aurora Water, on behalf of the National Resources 

Association, the Western Urban Water Coalition, and the Western Coalition 

of Arid States ........................................................................................................ 96 

Quinn, Jr., Harold P., Senior Vice President, Legal and Regulatory Affairs, 

National Mining Association ............................................................................... 117 

Recker, Tim, Iowa Corn Growers ........................................................................... 117 

Runbeck, Linda, American Property Coalition ...................................................... 117 

Shaffer, Carl, President, Pennsylvania Farm Bureau .......................................... 117 

Squillace, Professor Mark, Director, Natural Resources Law Center, University of Colorado School of Law ............................................................................ 48 

Tierney, James M., Assistant Commissioner for Water Resources, New York 

State Department of Environmental Conservation ........................................... 96 

Trout, Robert V., Trout, Raley, Montano, Witwer and Freeman, P.C. ................ 96 

Woodley, Jr., Secretary John Paul, Assistant Secretary of the Army for Civil 

Works .................................................................................................................... 10 

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Altmire, Hon. Jason, of Pennsylvania .................................................................... 140 

Bishop, Hon. Timothy H., of New York ................................................................. 141 

Boozman, Hon. John, of Arkansas ......................................................................... 142 

Carnahan, Hon. Russ, of Missouri ......................................................................... 145 

Cohen, Hon. Steve, of Tennessee ............................................................................ 148 

Costello, Hon. Jerry F., of Illinois .......................................................................... 149 

Ehlers, Hon. Vernon J., of Michigan ...................................................................... 151 

Gilchrest, Hon. Wayne T., of Maryland ................................................................. 156 

Mica, Hon. John L., of Florida ................................................................................ 158 

Mitchell, Hon. Harry E., of Arizona ....................................................................... 163 

Rahall, II, Hon. Nick J., of West Virginia ............................................................. 166 

Page

IV 

Shuler, Hon. Heath, of North Carolina .................................................................. 168 

Walz, Hon. Timothy J., of Minnesota ..................................................................... 170 

Young, Hon. Don, of Alaska .................................................................................... 171 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Adler, Johnathan H. ................................................................................................ 174 

Albrecht, Virginia S. ................................................................................................ 181 

Buzbee, William W. ................................................................................................. 209 

Card, Joan ................................................................................................................ 233 

Cope, Hon. Robert .................................................................................................... 247 

Cruden, John C. ....................................................................................................... 260 

Gerber, Darrell ......................................................................................................... 282 

Grumbles, Hon. Benjamin H. ................................................................................. 315 

Hulsey, Hon. Brett ................................................................................................... 334 

Jacobs, Hon. Kristin ................................................................................................ 341 

Lancaster, Chief Arlen L. ........................................................................................ 347 

Matthiessen, Alex .................................................................................................... 352 

Munks, Hon. Don ..................................................................................................... 375 

Petersen, Chris ........................................................................................................ 379 

Pifher, Mark T. ........................................................................................................ 387 

Quinn, Jr., Harold P. ............................................................................................... 396 

Recker, Tim .............................................................................................................. 406 

Runbeck, Linda C. ................................................................................................... 413 

Shaffer, Carl ............................................................................................................. 420 

Squillace, Mark ........................................................................................................ 442 

Tierney, James M. ................................................................................................... 453 

Trout, Robert V. ....................................................................................................... 462 

Woodley, Jr., Secretary John Paul ......................................................................... 469 

SUBMISSIONS FOR THE RECORD 

Mica, Hon. John L., a Representative in Congress from the State of Florida, 

list of organizations that submitted statements for the record ........................ 5 

Albrecht, Virginia S., Partner, Hunton and Williams, LLP, on behalf of the 

Waters Advocacy Coalition, responses to questions from the Committee ....... 206 

Buzbee, Professor William W., Director, Environmental and Natural Resources Law Program, Emory Law School, responses to questions from 

the Committee ...................................................................................................... 229 

Card, Joan, Director, Water Quality Division, Arizona Department of Environmental Quality, responses to questions from the Committee ..................... 245 

Cope, Hon. Robert, Commissioner, Lemhi County, Salmon, Idaho, on behalf 

of the National Association of Counties, responses to questions from the 

Committee ............................................................................................................. 258 

Gerber, Darrell, Clean Water Action Alliance of Minnesota, responses to 

questions from the Committee ............................................................................ 312 

Grumbles, Hon. Benjamin H., United States Environmental Protection Agency, Assistant Administrator for Water; Woodley, Jr., Secretary John Paul, 

Assistant Secretary of the Army for Civil Works, responses to questions 

from the Committee ............................................................................................. 330 

Matthiessen, Alex, Hudson Riverkeeper and President, Riverkeeper, Inc., responses to questions from the Committee .......................................................... 371 

Munks, Hon. Don, Skagit County Commissioner, District 1, Mount Vernon, 

Washington, responses to questions from the Committee ................................ 378 

Petersen, Chris, President, Iowa Farmers Union, responses to questions from 

the Committee ...................................................................................................... 385 

Pifher, Mark, Director, Aurora Water, on behalf of the National Resources 

Association, the Western Urban Water Coalition, and the Western Coalition 

of Arid States, responses to questions from the Committee ............................. 394 

Quinn, Jr., Harold P., Senior Vice President, Legal and Regulatory Affairs, 

National Mining Association, responses to questions from the Committee .... 404 

Runbeck, Linda, American Property Coalition, responses to questions from 

the Committee ...................................................................................................... 418 

Shaffer, Carl, President, Pennsylvania Farm Bureau, responses to questions 

from the Committee ............................................................................................. 430 

Squillace, Professor Mark, Director, Natural Resources Law Center, University of Colorado School of Law, responses to questions from the Committee . 449 

Page

V 

Tierney, James M., Assistant Commissioner for Water Resources, New York 

State Department of Environmental Conservation, responses to questions 

from the Committee ............................................................................................. 460 

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(1) 

HEARING ON THE CLEAN WATER 

RESTORATION ACT OF 2007 

Wednesday, April 16, 2008 

HOUSE OF REPRESENTATIVES

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, Washington, DC. 

The Committee met, pursuant to call, at 11:10 a.m., in Room 

2167, Rayburn House Office Building, the Honorable James L. 

Oberstar [Chairman of the Full Committee] presiding. 

Mr. OBERSTAR. The Committee on Transportation and Infrastructure will come to order. 

Today we resume discussion of the future of the Federal Water 

Pollution Control Act, the Clean Water Act of 1972. 

Over the past three decades, this legislation and its predecessors, 

going back to the work of my predecessor in Congress, John 

Blatnik, who once chaired this Committee and authored the very— 

well, not quite the very first, there was a 1948 Act, but the major 

restatement of purpose, statement of objectives for clean water was 

in 1956 with the Blatnik legislation that set up essentially the 

structure we have today, of grants to municipalities, although the 

grants are gone now, they are now replaced by loans, to build sewage treatment facilities. Mr. Blatnik said, at the end of the day you 

have to build a plant to clean up the waste. Two, an enforcement 

program; three, research and development. Those are essentially 

the three structures of the Act today. 

That initiative, the Federal-State partnership created in 1956 

and restated in 1965 and reaffirmed in 1972 is still the cornerstone 

of this legislation, and it has taken us from two-thirds of the Nation’s waters being polluted and unaccepted for body contact activities, for fishing and recreational activities, to less than one-third of 

the waters not meeting fishable and swimmable standards. We 

have gone from the days of the Cuyahoga River catching fire and 

soap suds floating down the Ohio-Illinois river system, soap coming 

out of people’s faucets when they turned on the water for drinking 

water, to dependable sources of clean water. 

For over 30 years, the industrial sector, agriculture, municipalities worked in cooperation with States and the Federal Government, EPA, and the Corps of Engineers toward the purpose of the 

Act, stated in the opening paragraph: ‘‘to restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters.’’ 

That is in the opening paragraph of the Act. 

And I say, parenthetically, I was chief of staff at the time we 

crafted that legislation. Many of the House-Senate conferences 

meetings were held right here in this room. We didn’t have as 

2 

many seats for Members in those days, we only had these two 

rows; that lower row didn’t exist at the time, so we had a big space. 

Those were rigorously debated conference meetings, over 10 

months, not of cameo appearances, but intense discussions—Senators on the one side, House Members on the other, staff on both 

sides—and hammered out, piece by piece, the purpose and the specifics of that legislation. 

Of course, not everybody was happy with the legislation, When 

Richard Nixon vetoed the Clean Water Act of 1972, Congress 

overrode by a 10 to 1 vote, overrode that veto. That meant that 90 

percent of Republicans and 95 to 100 percent of Democrats voted 

to override. 

Then along comes the Supreme Court and two decisions—the 

SWANCC case, Solid Waste Agency of Northern Cook County, in 

2001, and the Rapanos case five years later—that confused the 

scene. As Justice Stevens said, ‘‘The decision needlessly weakened 

our principal safeguard against toxic water.’’ 

Left behind in the wake of those decisions was what you can 

charitably call regulatory confusion, maybe even chaos. But I believe that we can correct it. I think we can take the effect of the 

two Supreme Court decisions—confusion, inconsistency, uncertainty about how to apply the Act—and repair it. The goal of the 

1972 Act was very clearly to avoid pollution havens. Upstream 

States didn’t want to be in a position where downstream States 

could outdo them or attract business on the grounds that they 

wouldn’t have to clean up as much as in other places. States clearly 

said to the Congress—the House, the Senate—we want a baseline 

consistent Federal standard so that industry could not be enticed 

from one State to a laissez faire State; and that is largely what 

prevailed over the ensuing 30 years. 

Now we have a regulatory miasma. It wasn’t created by the Congress, but it is our duty to clarify it. We need to look back at the 

fundamental principles of the Clean Water Act and its predecessor 

legislation to reaffirm the partnership between the Federal Government and the States to restore and maintain the integrity of the 

Nation’s waters, and to proceed to continue with the central thrust 

of the Clean Water Act: a watershed approach to establishing and 

maintaining clean water. 

A central purpose of the Clean Water Act was control of point 

sources—and establishing a basis for dealing with non-point 

sources was to be done in time—and to provide Federal financial 

support to the States to carry out their end of the bargain. The 

Clean Water Act, as amended, recognized very distinct categories 

of unique activities: agricultural return flows in the 1977 Act, agriculture return flows exempted; stormwater runoff from oil, gas, and 

mining exempted; maintenance of structures such as dikes, dams, 

levees, riprap, breakwaters, causeways, transportation structures 

exempted; construction or maintenance of farm or stock ponds and 

irrigation ditches, again, clear consensus, exempted; construction of 

temporary sedimentation basins exempted; moving of mining 

equipment, construction or maintenance of farm roads and forest 

roads, or temporary roads for mining equipment also exempted; 

and activities where States have an approved program to manage. 

3 

All those were part and parcel of the Clean Water Act which now 

are put in question by the Supreme Court decision. 

Over the last seven years, I have laid on the table a proposal to 

address this regulatory uncertainty and chaos by what I consider 

to be misguided Supreme Court decisions, and after years of no action and no consideration, we have had a major hearing, we have 

launched a major debate nationally, and discussion within the 

Committee on the proposal I have set forward. The goal of the legislative proposal is to restore the Clean Water Act protections in 

place prior to the Supreme Court decision and not to extend the 

reach, not to go beyond that purpose. The pre-SWANCC and preRapanos regulatory era define the universe of the Clean Water Act 

very broadly: to allow EPA and the Corps of Engineers and the 

States to address the water quality concerns where they found 

them and this broad, and largely undefined structure worked relatively well for over 30 years. 

Now, implementation has also needed streamlining. There is no 

question about that. To the extent we can simplify practices, 

streamline permitting process, we ought to attempt to do that, provided we do not shortcut environmental values; and I welcome recommendations. Previous practice also was backed by science, viewing the natural water environment as interconnected, and that is 

a matter that needs to be continued, stressing the role of protecting 

geographically isolated, intermittent, in some cases so-called 

ephemeral headwater streams, to protect total water quality. It is 

a common sense approach. It is cost-effective and it is, in a practical sense, effective in protecting pollutants from entering a water 

body, much more efficiently than trying to remove them once they 

go downstream. 

My legislation is not intended to ignite old debates that existed 

35 years ago and that were resolved with the enactment of Clean 

Water Act, but to put the Clean Water Act back on the track that 

it was prior to these two Court decisions. We had a previous hearing in which we received a wide range of views. The purpose of today’s hearing is to continue to receive specific recommendations 

from a wide range of affected and interested parties on how to proceed in the post-SWANCC-Rapanos era and what specific adjustments they recommend to the introduced bill. 

I invite constructive proposals and remain open to adaptations to 

this bill, and I look forward to working with Mr. Mica and Mr. 

Boozman, along with Members on our side of the aisle, on constructive proposals to make these adaptations. And I reaffirm that the 

introduced bill is not an inflexible document, but a starting point 

for discussion, and I look forward to today’s hearing. 

I now recognize the distinguished gentleman from Florida, Ranking Member Mr. Mica. 

Mr. MICA. Well, thank you, Mr. Chairman. I am pleased today 

to participate in the hearing on H.R. 2421. We are going to have 

an opportunity to carefully review Mr. Oberstar’s proposed legislation that would fundamentally alter the course of water regulation. 

I believe Mr. Oberstar has some very good intentions, but we have 

to look at the consequences of the language that we have before us. 

Mr. Oberstar and I usually try to work out our differences on 

most issues before the Committee, and I appreciate his willingness 

4 

to work with us. However, in its present form, H.R. 2421, I do not 

agree with the way the language has been drafted. And I might say 

that my interpretation is similar to hundreds of organizations representing millions of citizens across the Country. In fact, this is 

just some of the organizations, and I am going to ask if we can list 

them in the Congressional Record. 

Mr. OBERSTAR. In the hearing record. 

Mr. MICA. What did I say? Congressional Record. Sorry. In the 

hearing record. 

[Information follows:] 

5 


41961.001
6 

Mr. MICA. In addition, I have to say, again, in 16 years—and certainly in my short tenure as Ranking Member—I have never heard 

from so many people opposed to one piece of legislation. In fact, 

this is just a sampling—and I won’t ask to have all these put in 

the record. This is just a sampling of correspondence I have in opposition to this particular piece of legislation. I did not solicit one 

letter or request. 

I will have a request—I don’t want to put these and some of the 

others in the record—I think it wouldn’t do justice for the taxpayers, because it is pretty extensive—but I will have a request 

later on at the end of my remarks for unanimous consent to put 

some principal organizations’ comments and letters in the record. 

I am afraid, too, as Americans begin to realize the potentially 

harsh consequences of the legislation in its current form, that opposition will expand even beyond what we see here. Unlike the initial 

description of this bill, it in fact is far from being a simple restoration of what has been termed prior regulatory regime or practice. 

Put very simply, this legislation represents a hallmark example of 

pushing an agenda item right now that I think could be very disastrous to the economy and could have disastrous consequences to agriculture, personal land rights, the rights of States and localities to 

manage their own water resources. 

It is said that this action is needed to clarify the jurisdictions of 

the Clean Water Act after recent Supreme Court decisions allegedly created some ambiguities. Again, I think Mr. Oberstar has 

very good intentions, but, again, we have to look at the consequences of the language and the action the legislation would institute. Some believe that the solution to this problem is just to expand Federal Government regulatory authority over everything, so 

under this bill, if you do that, there will be no limit. Certainly 

there will be no ambiguity because there is no limit to Federal jurisdiction over all things involving water. Unfortunately, the results would be an unprecedented and historic Federal jurisdictional 

grab, and I don’t think that is the intent. 

A person does not need to be a rocket scientist to recognize when 

you remove the word ‘‘navigable’’ from the jurisdictional description, navigable waters of the United States, what will really result 

is we will have a massive expansion of Federal regulatory authority. To suggest otherwise sort of defies any common sense interpretation of what you have done, again, with changing this language. 

To subject ditches, retention ponds, stormwater runoff, water in 

a field, or pool in a backyard to be a body of water in need of Federal regulation somehow defies common sense. Federal regulation 

of virtually every wet area in the Country is not needed and it is 

not necessary. Unfortunately, there are some folks who do support 

this, and some on both sides of the aisle. Some of them may feel 

this is a quid pro quo for their environmental agenda. 

However, creating the tools which will effectively cripple U.S. agriculture, energy production, economic development which will end 

up in a morass of lawsuits, new legal interpretations and entanglements, and over-reaching regulation, that is my fear. By throwing 

out 35 years of Clean Water Act jurisprudence, we will create 

chaos, I am afraid, unlike anything we have seen in the courts— 

7 

Federal courts, the Supreme Court—and attempting to redefine the 

new constitutional limits of Federal authority. 

The reality is that there is no evidence that any endangered wetland or other important aquatic ecosystems are being destroyed or 

being harmed around the Nation as a result of the Supreme Court 

cases and the agency’s new guidance. The guidelines in place protect the natural interest in clean water, while respecting the rights 

of individuals, States, Tribes, and local governments to manage 

their own resources. 

The Committee has not even given time for the ink to dry on the 

new guidelines the Administration has issued with respect to specifically help move along the permitting backlog and also provide 

even more clarification beyond that of the 35-year legal structure. 

Unfortunately, sometimes facts are not allowed to interfere with 

political rhetoric or agendas and, in the end, H.R. 2421, I am 

afraid, will simply muddy the waters, ponds, pools, gutters, spouts, 

ditches in courtrooms across our great Nation. In fact, what I am 

concerned about is it will cloud, rather than clear, our water’s future in this Country. 

There are a large number of witnesses today, and the comments 

of the last panel may not be heard over the noise of the nightly 

cleaning crew that comes in late. This is going to go on for some 

time, folks. So let me share a couple of points that they make, not 

that I am making. 

Mr. OBERSTAR. I will be here to hear them. 

Mr. MICA. I am sure. And they will be part of the record, but I 

want a couple of them made up front here. 

Mr. Shaffer, of the American Farm Bureau Federation, states 

that activists have already used the courts to drag agriculture operations into a regulatory quagmire. If H.R. 2421 were to become 

law, the Farm Bureau predicts that we can expect more litigation, 

more regulation, and an escalation of the cost to comply. The results will be harmful to the Nation’s ability to competitively 

produce food and fiber. That is Mr. Shaffer of the American Farm 

Bureau. 

Mr. Quinn, representing the National Mining Association, testifies that the proposed changes will greatly increase the time and 

costs required to move through the permitting process. The result 

would be a permitting system that is not capable of producing reasonable decisions in a reasonable time frame. 

In addition, I am going to ask to have submitted by unanimous 

consent a letter from the United States Chamber of Commerce. 

They comment in a letter to the Committee that the existing State 

and local permitting programs will be made in conflict, if not completely eradicated, by H.R. 2421. Again, these are their comments, 

not mine. Land and water use decisions, the Chamber also says, 

that once belonged to State and local governments would become 

the jurisdiction of the Federal Government and the cost of complying with new regulations and requirements would amount to an 

unfunded mandate on the States. 

These are a few of the comments, again, and I have a request. 

I would like, if I could, the Chamber of Commerce, Associated Contractors of America, and National Stone and Gravel Association, 

American Road and Transportation Builders, American Forest and 

8 

Paper Association, American Petroleum Institute, the Central Arizona Water Conservation District, the California Association of 

Sanitation Agencies, the Imperial Irrigation District, and the Oregon Cattlemen’s Association as a sampling of these letters I received. I would like unanimous consent that they be made part of 

the record. 

Mr. OBERSTAR. The Chair will evaluate the length of the documentation—— 

Mr. MICA. And if at least reference would be made. 

Mr. OBERSTAR. Not all of the documentation is necessary, but it 

will be received for the hearing record, but not all documentation. 

Mr. MICA. So, finally, a point that I want to make at this time, 

this probably couldn’t come at a worse time, because right now we 

have troubled economic waters and this legislation, I am afraid if 

we move forward with it, would put another nail in our economic 

coffin, creating even more uncertainty than we already have in the 

marketplace and driving up the cost of producing almost any kind 

of U.S. product. 

This legislation would also make it harder for our crippled housing industry, which has really taken some blows, to come back from 

its downturn and will require more regulation, spawn more litigation, and generally increase the cost of every new home constructed 

in America. This legislation would also have a dramatic negative 

impact on America’s agribusiness. If you think food prices are high 

now, you have been to the store and seen sticker shock, this has 

potential for creating even higher food prices, cause further damage 

to United States manufacturing ability, and create an unprecedented flight of jobs to third world countries, because people will 

move those activities where you don’t have this kind of regulation 

and litigation that will result. 

I appreciate Mr. Oberstar’s incredible dedication to values of 

clean water. He is committed, as I am, to making certain that our 

waters are clean and our streams, rivers, and navigable waters of 

the United States are protected. However, I believe that the Federal response must be measured in order to accomplish the ultimate goal and not actually take steps back. So I can’t support the 

proposal in its present form, but I sincerely offer all the resources 

of the Committee. 

I know Mr. Boozman is committed to work—he has just taken 

over as our Ranking Member—will work with Ms. Johnson, Mr. 

Oberstar, and the staffs are ready to work with you 24/7. So if we 

do correct some of the flaws in this legislation, we do it together 

in the best interest of the Country. 

Thank you, and I yield back the balance of my time. 

Mr. OBERSTAR. There was no balance of time. 

[Laughter.] 

Mr. OBERSTAR. The gentleman has as much time as he needs to 

express his views, and I appreciate the alarmist statement on the 

introduced bill. As I said at the outset, this is a proposal. For six 

years we haven’t had a hearing on this legislation. We have now 

had one and we are going through a very extensive second hearing. 

We open this to all viewpoints and seek common understanding to 

address worst fears, worst concerns of people. 

9 

As I said in my opening remarks here and in the previous hearing, I invited constructive proposals and open to adaptations. This 

is not an inflexible document, the introduced bill. It is a starting 

point for discussion, and we need to understand what people’s concerns are and to address this. The objective is to return to the preRapanos, pre-SWANCC state of management of the Nation’s waters and to assure that all the water we ever had and ever will 

have on earth is with us today and that we pass it on to the next 

generation in a better state than we found it. 

I appreciate the gentleman’s statement about letters and statements that he has received. We have got at least as many, if not 

more. We have over 300 organizations that are supporting the introduced bill. But, as I said, the objective is to make adaptations 

to move ahead, and we have our starting panel of very distinguished witnesses with specific expertise in the subject matter and 

very technical issues before us, and we will start with Assistant 

Secretary Woodley. 

Mr. YOUNG. Mr. Chairman? May I ask for unanimous consent to 

submit for the record an opening statement? 

Mr. OBERSTAR. The gentleman from Alaska is recognized and the 

opening statement will be submitted without objection. 

Mr. RAHALL. Mr. Chairman, do all Members have that opportunity? 

Mr. OBERSTAR. All Members will be given unanimous consent to 

include their statements for the record. It goes without saying. 

Mr. BOOZMAN. Mr. Chairman? 

Mr. OBERSTAR. Mr. Boozman. 

Mr. BOOZMAN. Could I say something in my new position? 

Mr. OBERSTAR. The gentleman is recognized. 

Mr. BOOZMAN. Thank you, Mr. Chairman. This really is important. I want to thank you, first of all, for your hard work and the 

fact that you were there and a player in the original Clean Water 

Act. I think that this is something that we can look at. Sometimes 

Government screws things up, but the tremendous gains that have 

been made as a result of the Clean Water Act I think Congress can 

be very, very proud of. 

I grew up in Fort Smith, Arkansas and occasionally went fishing 

on the Arkansas River, and in the 1960s, early 1970s the place was 

a cesspool. Now, people water ski and things like that, again, as 

a direct result of the actions of this. 

I do think, though, that the Supreme Court made a correct decision based on the Constitution in that there are boundaries over 

Federal intrusion on State and local jurisdiction. The extent of Federal jurisdiction should not be boundless. State and local governments and, indeed, private property owners should have a role in 

managing their resources. The Federal agencies are getting experience with the new guidelines. I think we would like to see some 

recommendations at a later date from the agencies that suggest 

legislative changes that need to be made, if any, to help them run 

a program in an efficient manner and in a way that protects the 

important water resources, but also protects the rights of States, 

local governments, and personal property owners to manage their 

own resources. 

10 

I am concerned that the Chairman’s bill, H.R. 2421, the Clean 

Water Restoration Act, will substitute a more reasoned approach to 

the regulation of important waters and, instead, expand it to the 

fullest extent to cover activities that were never intended to be covered. And I think we will hear testimony today that that even extends perhaps even to activities that take place on dry land and 

even in the sky. We don’t even truly know the extent of the bill’s 

reach. That would be determined over time to the extensive litigation that the bill would cause. But it is hard to imagine a more expansive piece of legislation. 

So I look forward to hearing the witnesses today. And then 

again, I hope that if we do embark on a significant change, that 

we will do the due diligence that was done in the last Congress, 

that if we look at the history, the testimony, the tremendous 

amount of work that went into that as we tinker with this, I hope 

that we will do the due diligence of the future. 

Thank you very much, Mr. Chairman. 

Mr. OBERSTAR. Thank you for your comments. I look forward to 

working with the gentleman and with Members of both sides of the 

aisle to achieve the purpose of this legislation, simply to restore the 

original purpose and operation of the Clean Water Act. 

Now we will begin with Mr. Woodley. Secretary, welcome. Thank 

you. 

TESTIMONY OF SECRETARY JOHN PAUL WOODLEY, JR., ASSISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS; 

CHIEF ARLEN LANCASTER, UNITED STATES DEPARTMENT 

OF AGRICULTURE, NATURAL RESOURCES CONSERVATION 

SERVICE; THE HONORABLE BENJAMIN H. GRUMBLES, 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 

ASSISTANT ADMINISTRATOR FOR WATER; AND JOHN C. 

CRUDEN, DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT AND NATURAL RESOURCES DIVISION 

Mr. WOODLEY. Good morning, Mr. Chairman and Members of the 

Committee. I am pleased to be here this morning to speak to you 

about the Army’s Clean Water Act Regulatory Program and its implementation. 

This Administration has supported the Regulatory Program and 

wetlands protection by requesting increases in funding from $138 

million in fiscal year 2003 to $180 million in fiscal year 2009, a 30 

percent increase. The Corps will continue to administer this program to the best of its ability with the resources provided, but certainly, Mr. Chairman, we will need the Administration’s fiscal year 

2009 request to be fully funded if we are to provide the level of effective environmental protection and timely service to permit applicants that we have provided in the past. 

We have also worked to improve the program performance predictability and transparency. A new compensatory and mitigation 

rule was published earlier this month; new and improved nationwide permits were issued in March of last year; a new web-based 

tool is now on record and document information on authorized activities and mitigation; and we have implemented the GAO recVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
11 

ommendations related to documentation, mitigation monitoring, 

database development, and interagency coordination. 

Now I would like to briefly discuss how the two Supreme Court 

decisions, SWANCC and Rapanos, have affected the regulatory program and how we have responded. 

In SWANCC, the Supreme Court held in 2001 the Corps could 

not assert Clean Water Act jurisdiction over isolated, non-navigable, intrastate waters based solely on their use as habitat by migratory birds. 

Clarifying guidance was published by Army Civil Works and 

EPA reflecting this decision on the use of the migratory bird rule 

as the sole basis of jurisdiction. As a result of that decision, the 

Corps—and then in Rapanos, in 2006, the Supreme Court required 

that Federal jurisdiction extended only to water bodies that are 

traditional navigable waters or that significantly affect the physical, chemical, or biological integrity of traditional navigable waters. 

As a result of the Rapanos decision, the Corps will continue to, 

first, categorically assert clean water jurisdiction over traditional 

navigable waters, wetlands adjacent to traditional navigable waters, relatively permanent tributaries, and wetlands directly abutting such relatively permanent tributaries. Second, the Corps will 

determine whether certain waters have a significant nexus with 

traditional navigable waters. This means the Corps will determine 

and document whether or not a tributary, together with its adjacent wetlands, has more than an insubstantial or speculative effect 

on the chemical, physical, and/or biological integrity of the downstream navigable water. The kind of water falling into this category includes non-relatively permanent tributaries, wetlands adjacent to such tributaries, and wetlands adjacent but not directly 

abutting relatively permanent tributaries. Third, the Corps will 

generally not assert jurisdiction over erosion features, upland 

swales, small washes, and many ditches excavated wholly in and 

draining only uplands. 

Based on the 62,000 comments received, of which 1500 are substantive, and 18,000 jurisdictional determinations made, the agencies are considering whether to revise, reissue, or suspend that 

guidance. 

Mr. Chairman, I understand that the intent of H.R. 2421 is to 

recapture those isolated and ephemeral features and associated 

wetlands that were determined not to be jurisdictional in the Supreme Court holdings in SWANCC and Rapanos, regardless of 

whether they affect the physical, chemical, and biological integrity 

of navigable waters. The Supreme Court in these decisions limited 

its jurisdiction based on interpretations of the intent of Congress, 

and in implementing the Court’s decision, our approach has been 

not to focus on a particular physical or geographical target for limits of jurisdiction, but to make these determinations based on a scientific, fact-based analysis with the potential effects of these waters 

and their adjacent wetlands on the physical, chemical, and biological integrity of navigable waters the focus of the current law. 

We do have several serious concerns with the draft legislation as 

we understand it. First, it appears the general consequence of the 

legislation would be to extend jurisdiction beyond those waters deVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
12 

termined not to be jurisdictional under SWANCC and Rapanos. 

This appears to go beyond the original intent of Congress in establishing jurisdictional reach of the Clean Water Act, which reflected 

a careful balance between legitimate and important Federal interest in protecting water quality and equally important and longstanding interest of the States in managing and allocating water 

within their boundaries. 

In addition to these serious concerns, we have a number of questions that we would like to ask and the Committee may consider: 

Is it appropriate to upset the Federal-State balance established in 

the original Clean Water Act? How will removing this term ‘‘navigable’’ from the Clean Water Act affect the implementation? Will 

this extension of Federal jurisdiction significantly increase cost to 

small landowners and other interests? And what would be the 

budgetary workload and processing time implications for Corps regulatory jurisdiction? 

Because the bill specifically refers to perennial and intermittent 

waters, one might conclude that the bill intends that ephemeral 

features, which are currently evaluated under the Corps significant 

nexus test are intended by the bill to actually be removed from 

Federal jurisdiction. Further, it is not clear whether the phrase 

‘‘activities affecting waters of the United States’’ might mean, as 

the term seems to be essentially without boundaries. 

Mr. Chairman, certainly, we look forward to working with the 

Committee to explore these questions and to ensure that any legislative change in the Clean Water Act is carefully thought through 

with all of its implications considered. 

Mr. OBERSTAR. Thank you, Mr. Secretary. I think those comments are very targeted, very specific, and I will come back to you 

with questions about specifics. 

Now, Mr. Lancaster, Chief of the Natural Resources Conservation Service at USDA. Thank you for being with us. 

Mr. LANCASTER. Thank you, Mr. Chairman, Members of the 

Committee. Thank you for the opportunity to discuss the activities 

of the National Resources Conservation Service. My full statement 

has been submitted for the record. 

Mr. OBERSTAR. Without objection, the statement will be included 

in the record. 

Mr. LANCASTER. NRCS works to assist producers in meeting 

their conservation goals through our technical and financial assistance programs. We support private landowners and conservation 

partners in efforts to restore, enhance, and maintain our Nation’s 

natural resources, including valuable water and wetland resources. 

It is clear from our experience that farmers and ranchers know 

that profitable farming and maintaining clean water supplies go 

hand in hand. 

Based on data from NRCS’s national resources inventory, farmers and ranchers are protecting and restoring wetlands at historic 

rates. Between 1997 and 2003, agricultural producers across the 

Nation achieved an average net gain of 44,000 acres of wetlands 

each and every year. USDA is also contributing significantly to the 

President’s goal for overall increases in wetlands by protecting, improving, and restoring 3 million acres of wetlands by 2009. On 

13 

Earth Day last year, progress towards that 3 million acre goal 

stood at nearly 2.8 million acres. 

A number of USDA’s activities greatly contribute towards those 

wetland and water quality objectives, including our conservation 

compliance activities, STET voluntary land retirement programs, 

and our conservation cost share assistance programs. 

USDA utilizes conservation compliance authorities to discourage 

the production of agricultural commodities on converted wetlands 

and highly erodible lands. For purposes of the Food Security Act, 

wetlands compliance, known as Swampbusters, and highly erodible 

land requirements must be met. Violations result in loss of eligibility for USDA benefits. 

Through Swampbuster, producers have sharply reduced wetland 

conversions from agricultural uses, from 235,000 acres per year before 1985 to 27,000 acres per year from 1992 through 1997; and our 

reviews of Swampbuster efforts indicate continued increasing producer compliance levels for the program. 

Highly erodable land compliance associated with our conservation programs has resulted in a reduction of nationwide soil erosion 

of 43 percent from 1982 through 2003, and a corresponding reduction in nitrogen and phosphorus entering our Nation’s waters. 

I would be remiss if I did not also mention USDA has proposed 

a third compliance mechanism for the next Farm Bill. The 

Sodsaver proposal would discourage conversion of range land and 

native grassland in a manner similar to the current Swampbuster 

provisions for the conversion of wetlands. 

USDA also offers important land retirement programs that assist 

in the creation, improvement, and restoration of wetlands. The 

Wetlands Reserve Program, or WRP, is a voluntary program 

through which landowners restore and protect wetlands, in most 

cases with long-term or permanent easements. Private landowners 

have enrolled over 1.9 million acres in this program through fiscal 

year 2007, and demand for WRP continues to grow as producers 

seek to continue to enroll their lands in this important program. 

The Conservation Reserve Program helps producers safeguard 

environmentally sensitive land. Producers enrolled in CRP plant 

perennial vegetation to improve water quality, control soil erosion, 

and enhance wildlife habitat in return for rental payments. 

A majority of the over 34 million acres enrolled in CRP consist 

of environmentally sensitive upland fields; however, USDA has also 

enrolled 2 million acres of wetlands with associated protective buffers in this program. 

One of the key focuses of NRCS regarding water quality improvements are a voluntary working lands program such as the Environmental Quality Incentives Program, or EQIP. EQIP helps producers achieve both their conservation and business goals, as well 

as meet regulatory challenges. Between 2002 and 2006, nearly 

185,000 participants received more than $3 billion in cost share 

and incentive payments under EQIP for the implementation of 

structural and management conservation practices. 

An example of work in the regulatory realm, since 2002, NRCS 

has helped producers develop 32,000 comprehensive nutrient management plans that can help animal feeding operations comply 

with regulatory requirements should their operations fall under the 

14 

Clean Water Act’s Concentrated Animal Feeding Operation, or 

CAFO, provisions. 

In summary, USDA believes that NRCS authorities for wetlands 

compliance and restoration activities under the Farm Bill would 

not be affected by the proposed legislation. Since our authorities 

are not associated with the Clean Water Act, the change in definition would not impact our implementation. It is, however, possible 

that enactment of H.R. 2421 would lead to more producers falling 

under the regulatory purview of the Clean Water Act, which in 

turn could lead to increased compliance costs for producers and demands for our already over-subscribed assistance. 

As we look ahead, Mr. Chairman, it is clear that farmers and 

ranchers are making significant wetland improvements and water 

quality gains through voluntary incentive-based activities. We want 

to build on that success. The challenges before the Nation to protect and improve wetland resources will require the dedication of 

all available resources, the skills and expertise of NRCS staff, contributions of volunteers, continued collaboration with partners—including local, State, and Federal agencies—to provide farmers and 

ranchers the best information and assistance possible to better able 

them to continue to protect, enhance, and restore our wetland resources. 

I would be happy to respond to any questions. 

Mr. OBERSTAR. Thank you very much. I appreciate your excellent 

statement, which I found very fascinating. I read the entire statement. I appreciate very much your contribution. 

Now Ben Grumbles, Assistant Administrator, U.S. EPA, but better known as a former staff member of the Committee. 

Mr. GRUMBLES. Thank you, Mr. Chairman. Always an honor to 

appear before you and your colleagues on this great Committee. 

As you know, the objective of the Clean Water Act is to restore 

and maintain the chemical, physical, and biological integrity of the 

Nation’s waters, and that includes wetlands. All wetlands and waters have value. All wetlands and waters have some ecological 

functions. But not all wetlands and waters are subject to Federal 

regulation under the Clean Water Act, and I think you know that 

very well. 

This Country has made tremendous progress to achieve that objective of the Clean Water Act as it relates to wetlands. In the 

1970s, this Country was losing 290,000 acres a year of wetlands. 

Now we estimate that there is actually a net gain of wetlands, 

32,000 acres a year. That doesn’t mean we can’t and shouldn’t stop 

working hard to use the regulatory tools, because we are losing certain valuable wetlands and we need to continue to be vigilant. And 

in that regard, this Administration is fully committed to protecting 

and restoring wetlands, and not just ensuring no net loss, but as 

the President stated on Earth Day, moving towards an overall gain 

in the quality and quantity of the Nation’s wetlands. 

John Paul Woodley and I are very pleased with the compensatory 

mitigation rule that was recently issued. We feel that that is a 

market-based way to help ensure no net loss of wetlands and it is 

a sign of 21st century ways to conserve wetlands and protect them. 

The SWANCC and Rapanos guidance are very important; they 

are in response to the Supreme Court decisions. The Rapanos guidVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
15 

ance that John Paul Woodley and I issued in June of last year we 

believe provides needed clarity and helps to increase consistency 

and predictability in light of the Supreme Court decisions. But we 

also realize much more work needs to be done. The guidance laid 

out specifics of not just one of the tests, the Scalia test or the Kennedy test, but described both of them and that we would use either 

one; and it was accompanied by a very detailed handbook and instruction manual. 

We took nine months of comments and have been field-testing 

that guidance. The received comments, essentially, to summarize it 

crudely, many in the regulated community thought we went too 

far, and some in the environmental community thought we didn’t 

go far enough. We also got some very good comments about suggestions on how to streamline the process in terms of jurisdictional determinations. We are taking that very seriously and we are looking 

to our next steps to review, revise, or suspend the guidance in the 

coming weeks. 

In terms of your legislation, H.R. 2421, Mr. Chairman, I am encouraged by the comments you have made at this hearing about 

being open to change and clarification and adaptability. As is stated in our written testimony, in mine, we do have concerns about 

the legislation in its current form, programmatic impacts in particular. I think it is very important to be able to answer those relevant questions about the prior converted crop lands and about 

waste treatment systems, very important existing exemptions that 

aren’t addressed directly in the legislation. 

I also think it is very important to look at other areas, such as 

permit streamlining and how can the agencies and Congress work 

to provide more incentives and encouragement for States to assume 

the 404 program under 404(g) and (h). Only a couple States have 

done that to date, and we think, in the interest of federalism and 

increased wetlands conservation, that is a very important area for 

the Congress to look at. 

Mr. Chairman, we stand ready to work with you and your colleagues to improve the legislation. We are very committed to ensuring continued progress on implementing the guidance and working 

to use the tools under the Clean Water Act, as well as other tools, 

cooperative conservation tools, with our partners at USDA and Interior to continue to work to protect and restore America’s wetlands 

and waters. We feel that by working together we can all make 

progress towards that objective of restoring and maintaining the 

chemical, physical, and biological integrity of the Nation’s waters, 

including wetlands. 

Thank you. 

Mr. OBERSTAR. Thank you very much, Mr. Grumbles, Mr. Secretary, for your contribution, for your thoughts. I know that in you 

we have a seasoned, experienced practitioner and that we can work 

our way through these issues. Your comments on streamlining, I 

think, are very important. We look forward to pursuing your further thoughts about that and your reaffirmation of the no-net loss 

policy of the first Bush Administration and affirmation, as Mr. 

Woodley said, that the Clean Water Act is a key part of the President’s wetlands policy. Those are very, very important contributions. 

16 

Mr. Cruden, we do have a vote in progress; we have 10 minutes 

remaining. I would like to have your statement on record before we 

break for the vote. 

Mr. CRUDEN. Mr. Chairman and Members of the Committee, 

thank you very much for inviting me to testify. You have my full 

statement. I am a Deputy Assistant Attorney General with the Environment and Natural Resources Division at Department of Justice. We do all of the Federal environmental litigation, including 

well over 7,000 cases involving over 70 statutes. An important statute, one that we are dedicated to enforce and protect is the Clean 

Water Act, and we normally do that on behalf of the Environmental Protection Agency and the Corps of Engineers. They, of 

course, have broader authority and administrative enforcement, 

which we are not often involved in. 

When we litigate any of our cases, but particularly those involving the Clean Water Act—whether or not we are enforcing against 

a company that is illegally discharging or we are trying to protect 

wetlands—our first step is always to look at the statute. And, as 

has been repeated today many times already, that statute directs 

us to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. 

The cornerstone of that great statute is section 301, which prohibits the discharge of a pollutant from a point source without a 

permit. As all of you know, the discharge of a pollutant is defined 

by the Act as any addition of any pollutant to navigable waters, 

and navigable waters is further defined as the waters of the United 

States. EPA and the Corps of Engineers have regulations defining 

and implementing that term, and we have been litigating those 

issues for many years. 

A significant trio of Supreme Court decisions have focused on 

Clean Water Act issues in general, and more specifically, section 

404, which is the wetlands protection section. 

The Riverside Bayview decision in 1985 addressed one key issue, 

and that was whether or not the Corps was authorized to require 

landowners to obtain permits before discharging fill material into 

wetlands adjacent to navigable bodies of water and their tributaries. The Supreme Court unanimously agreed. 

Then later, in SWANCC, the Supreme Court decided that isolated, non-navigable, intrastate waters did not become waters of 

the United States based solely on migratory bird usage. 

The Rapanos case, however, requires a bit more explanation. The 

judgment of the Supreme Court was to vacate the two decisions of 

the Sixth Circuit, but there was no majority opinion. Instead, we 

had five separate opinions, including a plurality opinion authored 

by Justice Scalia and a concurring opinion by Justice Kennedy. 

But I want to point out one thing that is often overlooked about 

the Rapanos decision. The one issue that all Justices agreed on is 

that they rejected the position that waters of the United States 

were limited to navigable—in fact—waters. That was rejected. 

But the plurality opinion has a two-part test: whether the wetlands in question are near waters with a relatively permanent flow 

and, if they are, whether the wetlands are adjacent to those waters 

in the sense of having a continuous surface connection. Justice 

Kennedy concurred in the judgment of the Court, but he had a difVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
17 

ferent standard. He asserts that we should be looking at whether 

or not the specific wetland in question possesses a significant nexus 

to the traditional navigable waters. 

Applying Rapanos has been challenging. The Department has 

vigorously litigated the position that we can establish jurisdiction 

by meeting either the test authored by Justice Scalia or the test 

authored by Justice Kennedy. We believe that is the best way to 

fulfill the statutory mandate and is in keeping with the decision. 

In the 22 months since Rapanos was decided, the Department 

has now filed more than 45 briefs in over 30 Federal court proceedings in which this issue was in question. Right now we have 

about 20 decisions applying the Federal Rapanos standards. In my 

prepared testimony there is a table summarizing those decisions. 

We have done well in many cases, but not in all. 

Our intent at the Department of Justice is to move aggressively 

forward in every case to protect wetlands and to do that consistent 

with the statute, the core regulations, and applicable case law. 

I look forward to your questions. Thank you. 

Mr. OBERSTAR. Thank you for a very thoughtful and far-reaching 

discussion of the Act and of the court cases, and for the substantive 

backup in your written statement, which will be included in the 

record. I want to explore those issues further with you. 

But we will recess for the vote and resume within 15 minutes 

after completion of the last vote in this series. 

Committee stands in recess. 

[Recess.] 

Mr. OBERSTAR. I have a question for Mr. Cruden that I thought 

would be the lead-off question, but we will wait until he returns. 

Mr. Grumbles and Mr. Woodley, when he returns, what would be 

the effect of leaving in place the term ‘‘navigable waters’’ where it 

appears in the Clean Water Act, not deleting that reference, as proposed in the introduced bill, and including legislative reference to 

the prior—that is, prior to Supreme Court decision—regulatory 

rules published by EPA and the Corps? 

Mr. GRUMBLES. A reference to all of the regulatory rules published by EPA and the Corps or some of them? 

Mr. OBERSTAR. Or some selected ones that are pertinent to the 

issues that we are concerned about. Pertinent to, let us say, the 

eight exemptions provided in the Clean Water Act on which there 

is a regulatory body. 

Mr. GRUMBLES. Well,—— 

Mr. OBERSTAR. And a reference to prior converted farmland. 

Mr. GRUMBLES. And waste treatment systems? 

Mr. OBERSTAR. Yes. 

Mr. GRUMBLES. My initial response is—well, the obvious initial 

response is that this would be something that we would want to 

look at, the lawyers in the agency, EPA in particular, to see how 

that would play out, the new language you are adding. I am assuming your question also assumes that you would keep in language in the bill that uses a new term, in lieu of using the term 

‘‘discharge’’ uses the term ‘‘activities,’’ that any activities affecting 

waters of the U.S. would be subject to permitting. So I think that 

would still—— 

Mr. OBERSTAR. The question is—that is a separate issue—— 

18 

Mr. GRUMBLES. Okay. 

Mr. OBERSTAR.—because the question with respect to that matter 

is does that extend beyond the reach of the Clean Water Act as we 

knew it prior to SWANCC. 

Mr. GRUMBLES. Right. 

Mr. OBERSTAR. That is a separate question you can answer. 

Mr. GRUMBLES. I think there could also be some questions asked 

about the applicability date or retroactivity of the language of the 

legislation. I would say that we would need to look at it closely and 

carefully. I would also say that by leaving in the term ‘‘navigable 

waters,’’ that would be a step towards reducing a potential wave 

of litigation over constitutional issues. It still, I think, would be important to look at the full array of what the bill would look like, 

even if you change it to leave in the term ‘‘navigable waters’’ and 

then, as I understand the question, you would then be referencing 

in some way—and I think it would be important to see exactly how 

you would reference all the existing regs that the Corps and EPA 

have issued; you said eight exemptions or provisions. So it is something we would commit to look at and to give you our best guess 

on what the impact would be. 

Mr. OBERSTAR. I don’t know if you can read it up there on the 

screen. This is a document of the specific EPA and Corps regulations: all waters currently used, were used in the past, or may be 

susceptible to use in interstate or foreign commerce, including all 

waters subject to the ebb and flow of the tide and the regulatory 

practice associated therewith. 

Mr. GRUMBLES. If the intent is to try to more closely restore, 

rather than expand, jurisdiction, that is probably an important step 

in the right direction. I think, seriously, we would need to have our 

lawyers for the EPA and the Corps look at it more carefully, 

but—— 

Mr. OBERSTAR. Would you say conceptually that that would remove, subject to parsing words, uncertainty about application of 

the Clean Water Act post-SWANCC-Rapanos to a status quo ante? 

Mr. GRUMBLES. Then I would ask what is the bill doing. You are 

attempting to overturn certain aspects of the SWANCC decision 

and the Rapanos decision to prevent the application of a significant 

nexus test or a relatively permanent waters test. I think by leaving 

in navigable, that is a step towards reducing potential constitutional litigation. I think what we would want to focus on in your 

question is exactly how you would reference what stature you 

would give in the reference to those existing regs while you are also 

adding additional provisions in the bill, new terms. 

Mr. OBERSTAR. Since the concern is that changing the language 

as I initially proposed to do would create a great deal of uncertainty about the future, then let us leave in place navigable waters, 

return to the language of the conference report that said the Committee of Conference intends the widest possible application of the 

term ‘‘navigable waters’’ and ‘‘waters of the United States’’ to include watersheds, and that is the spirit in which the Act was administered up until SWANCC-Rapanos. So I want to restore the 

status quo ante. 

And then the separate question is prior to SWANCC-Rapanos, 

did EPA and the Corps need to identify a jurisdictional nexus to 

19 

a navigable water in order to assert jurisdiction of the Clean Water 

Act? 

Mr. GRUMBLES. Well, John Paul, if you want to also weigh in on 

this. Prior to SWANCC and Rapanos, under our regulations, we 

laid out at least seven different ways to assert jurisdiction over waters, including wetlands. One was traditional navigable waters test. 

We did have, in particular, one for tributaries, asserting jurisdiction over tributaries and also for adjacent wetlands. The SWANCC 

case was focused in on the (a)(3) waters of the regs, which is intrastate, non-navigable, isolated waters, and there we have taken the 

view that there needs to be some connection to commerce, an interstate commerce connection. 

Mr. OBERSTAR. Have any waters lost protection as result of the 

two Supreme Court cases? Are there bodies of water that were considered protected pre-SWANCC-Rapanos and lost that protection 

subsequently? 

Mr. GRUMBLES. Well, in our guidance and, so far, lessons learned 

in the nine months since implementation of the guidance, the June 

2007 guidance, our guidance did not categorically exclude, and we 

didn’t interpret the Supreme Court various decisions to categorically exclude certain waters. What we have found is there has been 

a slight, not significant, decrease in coverage in some respects, and, 

Mr. Chairman, obviously, when you get further up in the watershed, towards the headwaters, more into some of the ephemeral 

streams that are really based on the weather patterns, we have observed that there may be less likelihood of jurisdiction under the 

Federal Clean Water Act in those cases. 

Mr. OBERSTAR. And that is a very important point. If you consider the case of New York City, which acquired the entire watershed upstate, from which their drinking water is drawn, in order 

to have total control of it, so they wouldn’t have to go through regulatory proceedings—they just bought the land—they understand 

that the watershed is the beginning point of any introduction of 

toxics into the stream. So they acquired the watershed. 

Mr. GRUMBLES. The other point is the truly isolated, intrastate, 

non-navigable waters, such as ponds or certain wetlands. The 

SWANCC case was clear that the agencies could not rely on that 

migratory bird, the language in the preamble of the regs, to assert 

jurisdiction over those. So the record is very clear that we have not 

seen jurisdiction asserted over isolated, intrastate, non-navigable 

waters in many instances. 

Mr. OBERSTAR. I will come back to the migratory birds. 

I just want to ask Secretary Woodley to give your response to the 

question I raised. Although you weren’t here for the first part of 

the question, but you understand what I am getting at. 

Mr. WOODLEY. Yes, sir. I think that the reduction in asserted jurisdiction was much more significant under the rule in the 

SWANCC decision than we have experienced under the Rapanos 

decision, although the Rapanos decision has yet to have enough experience under it to say for sure. The difference is that under the 

Rapanos decision, you are essentially questioning how far in the 

tributary system the Federal jurisdiction should go, so that you assume that the waters are connected to larger water bodies, and the 

20 

question is how far up that tributary system should we extend Federal jurisdiction. 

The previous rule under the regulation was that we would assert 

jurisdiction over any tributary that showed an ordinary high water 

mark, whether ephemeral, intermittent, or perennial, and our guidance is, we believe, in line with the decision or with the opinion 

of Justice Kennedy, which was that the ordinary high water mark 

is a consideration and should be used, but he seemed to indicate 

that it was not sufficient by itself. We had been having a rule that 

the ordinary high water mark was sufficient by itself. So what we 

are looking for now is other indications of significant contribution 

or potential for impact on navigable water in addition to the ordinary high water mark. 

Mr. OBERSTAR. See, there is this very extraordinary situation 

that results from these decisions. Are you doing a Scalia interpretation, are you doing a Kennedy interpretation, are you doing a 

somebody else’s interpretation? These judges are sort of legislating 

from the bench, and when they were appointed they were given the 

charge to interpret the Constitution. 

Mr. Cruden, my last question for this panel is my reading of the 

two Court cases, I do not find any question raised by the Court as 

to the constitutionality of the Clean Water Act. 

Mr. CRUDEN. Yes and no. Neither of those decisions, as you have 

correctly stated, deal with the constitutionality of the statute, and 

they state that in the opinions. On the other hand, I have to say 

both decisions, certainly the SWANCC decision, written by then 

Chief Justice Rehnquist, and the decision in Rapanos, both say 

they are not dealing with the constitutional issues because the 

opinions are invalidating or addressing the regulatory issues. Although that is one way of not reaching the constitutional issues, 

both cases express some concern about constitutional issues. 

I will say, in response to the other question about sort of the evolution of litigation—maybe this is helpful. When I am talking to my 

own lawyers about how we have evolved through these three Supreme Court cases, I very often tell them that we have gone 

through three different eras of litigation, which I describe as the 

test of ‘‘where,’’ the test of ‘‘whether,’’ and the test of ‘‘what.’’ By 

that I mean that before SWANCC we were litigating ‘‘whether’’ or 

not something was a wetland, and very often we were proving soil 

hydrology or the ordinary high water mark. Then SWANCC came 

out and then we started litigating ‘‘where’’ the location of the wetland was. By that I mean, was there a hydrological connection? I 

think we are now going into a third era of litigation, which is 

‘‘what’’ is that wetland. That is, ‘‘what’’ is the value of that wetland 

or, in Justice Kennedy’s words, is there a significant nexus between 

the wetland and the traditional navigable waters? So each one of 

these Supreme Court cases have pushed us in litigation in a different direction than we had been before that case. 

Mr. OBERSTAR. Thank you all for your contribution. 

I now recognize the gentleman from Arkansas, Mr. Boozman. 

Mr. BOOZMAN. Thank you, Mr. Chairman. 

Again, I want to thank all of you all for the hard work, working 

as a team. You all have a great story to tell in the sense that the 

agencies have really made a tremendous impact. 

21 

Today, when I read the testimony of the proponents of the legislation, it seemed like they were really saying two things. First of 

all, one of their arguments was that this bill would just clarify, go 

back to the criteria that you all were using prior to the Rapanos 

decision, and that there would be no additional jurisdiction. The 

other argument is that the language in the bill makes it such that 

instead of having the problems of not knowing what was regulated, 

this would make it much easier in that we would have less litigation. 

Can you address the first one? Again, when we compare what 

you were using prior to the decision that struck things down and 

tightened things up a little bit, can you compare that to the scope 

of the bill in question? In reading your testimony, I think, again, 

to me, it was pretty evident that you feel like the scope is going 

to be changed dramatically. Is that correct? 

Mr. GRUMBLES. I will start. A couple points I would make, Congressman. One is the term activities, by including in the bill that 

it is not just the discharge of dredged or fill material that triggers 

a permitting requirement, but that it is activities that would do so, 

begs a lot of questions for the scope, how much broader might that 

be, does that pick up certain non-point source activities, and I 

think—— 

Mr. BOOZMAN. So could that be building? 

Mr. GRUMBLES. It can be a wide array of different things, sources 

of diffuse pollution, but it could be building or—— 

Mr. BOOZMAN. But the reality is it really could be almost anything, couldn’t it? I mean, that is what it is saying, is that whatever it is is affecting, then it is. 

Mr. GRUMBLES. Well, it is a term that would, just from my perspective as an implementor, it would need a lot more clarification 

as to what it really means, and it likely would be expanding. 

Mr. BOOZMAN. But it would broaden the scope of your jurisdiction. 

Mr. GRUMBLES. Probably, yes. And the other point is findings are 

findings, but the findings do lay out a ray of additional provisions, 

constitutional authorities that might be used, so without further 

clarification could also be the basis for additional litigation, or at 

least uncertainty as to how the drafters really intended the bill to 

be implemented. 

Mr. BOOZMAN. So you would say that—again, we have got 30 

years of kind of grappling with the other intent—this really would 

put us back essentially starting over, wouldn’t it, as far as trying 

to figure out what it means? 

Mr. GRUMBLES. I wouldn’t go that far. I would say that it has 

been a long time since the Congress has amended the 404 program, 

the Clean Water Act as it relates to 404 in a meaningful way, and 

that by adding new terms, it would require a lot of clarification and 

probably a fair amount of legislative history as well; and when you 

add new terms to an area of the law that has been one of the most 

litigated in the history of the Country, it is likely to add additional 

litigation, even if the bill is not that long. 

Mr. BOOZMAN. Right. 

22 

Secretary Woodley, in your testimony, again, in my reading it, it 

seemed to indicate that you felt like the jurisdiction would be enhanced a fair amount. Can you comment on that, potentially? 

Mr. WOODLEY. Yes, sir, probably. And I would certainly identify 

the same thing that Assistant Administrator Grumbles identified, 

and then the reference—I am a little confused in that context by 

the reference to intermittent and non-ephemeral streams in that 

same section, because we now assert jurisdiction over quite a few 

ephemeral streams even under the current rule, and if it was intended that those not be included, then that would actually be a 

contraction of jurisdiction. So there are certain elements of the 

statutory language that would be very much open to litigation 

going forward is the most I would say. 

Mr. BOOZMAN. H.R. 2421, reading the statute, could that apply 

to groundwater? 

Mr. GRUMBLES. Well, I was going to say that that is a fair question. From an EPA perspective, as we look at the geographic scope 

of the Clean Water Act, it is a fair question to ask. Congressman, 

I don’t have a legal conclusion on that; I think that is a fair question to ask. And that is another example of an area that the Committee might want to clarify, as to it intent on the scope, because 

if the answer were yes, that would be a significant change in practice. 

Mr. BOOZMAN. In your testimony, you mentioned that you had 

some concerns about the exemptions, the prior converted crop land 

and waste treatment systems, and the potential implication of the 

omission of those. What are the potential implications of omission? 

Mr. GRUMBLES. One would be litigation, but the most important 

one is, over the years, since 1993, the agency, EPA, has had a regulation on the books that said prior converted crop lands, if they 

were converted prior to December 23rd, 1985, it would not be waters of the United States for purposes of the Clean Water Act regulation. It may well be the intent of the drafters to leave that in 

place; it is just that when there are certain savings clauses and 

provisions that are in the bill and you leave some of them out, such 

as the prior converted crop land one, it could be interpreted as 

meaning to change that. So that would lead to regulation of those 

prior converted crop lands if that—— 

Mr. BOOZMAN. The other thing is, again, for you guys, are there 

other potential regulatory emissions at risk. And then also the very 

fact that you are leaving it out, I mean, that is a statement in 

itself, isn’t it? 

Mr. GRUMBLES. It can well be. The other one that we have discussed both in the 402 permitting program and in the 404 program 

is the importance of the waste treatment system exclusion. And I 

know the Chairman has mentioned something about clarifying that 

as well, but that is a good example of one that people have commented on and that we have asked the question as well, is how 

would the bill, as it is currently drafted, apply, would it affect that 

or change it or reduce the ability to use that important exemption. 

Mr. BOOZMAN. Well, thank you, guys. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. Mr. Rahall. 

23 

Mr. RAHALL. Thank you, Mr. Chairman. And a special thank you 

to you for holding today’s hearing at the request of several Members of this Committee. The witnesses have been certainly very 

professional in their responses and targeted, and all of us deeply 

appreciate that. 

Mr. Chairman, in my capacity as Chairman of the House Natural 

Resources Committee, I am certainly well aware how sensitive 

issues involving clean water are, and that our national parks, forests, and wildlife refuges would be in greater peril than they already are if the waters within them were not suitable to support 

their various ecosystems. Our Committee has regularly dealt with 

issues involving reserve water rights, Indian water rights, sediments and irrigation policies, etc., and what I have certainly found 

is that old maxim out West applies, that is, whiskey is for drinking 

and water is for fighting over. 

[Laughter.] 

Mr. RAHALL. Now, I don’t mean that to be the case here today, 

certainly not during this hearing, but there are concerns, which 

have already been expressed, that many of us have with the current bill as currently crafted, and certainly I am very happy to 

hear Chairman Oberstar mention that it is a work in progress and 

open to a great deal of discussion and work as we proceed. 

But the one phrase that has caught a lot of our attentions, and 

I believe you answered part of this question during your response 

to Chairman Oberstar, although I missed the initial question, and 

that is the phrase ‘‘unintended consequences.’’ 

Now, I do not doubt the intent of the bill’s proponents who say 

that the pending measure would simply return things back to the 

way they were prior to the Rapanos decision. My concern is that 

by pulling a thread, we may unravel the universe. In this case, by 

removing the term of art ‘‘navigable waters’’ from the statute, we 

may adversely impact the entire Clean Water Act regulatory universe. 

So with that, Mr. Chairman, I do want to thank you for this additional day of hearings and ask Mr. Woodley, if I might, and Administrator Grumbles, Secretary Woodley and Administrator 

Grumbles, in both of your testimonies you mentioned this phrase, 

your concern over the removal of the term ‘‘navigable waters’’ and 

the effect other provisions of the Clean Water Act may be affected 

and the regulatory program. So I would like to ask both of you, if 

you would, to just go into that just a little bit further and elaborate 

on what the unintended consequences of such an action as removing the term ‘‘navigable waters’’ would be. As I say, I believe you 

both have responded in some form to this previously, but if you 

could just target in a little bit more on it. 

Mr. WOODLEY. Yes, sir. I guess the main point is that the statute 

to date has seemed to make a distinction between those waters 

that are and ought to be subject to Federal jurisdiction within this 

program and those which are not, so that essentially, there is 

somewhere on the landscape, a line that the Federal Government 

should remain and the Corps of Engineers should remain on its 

side of that line when it asserts its jurisdiction. Right now, that 

line is tethered to, under the cases that we have had, navigable 

waters, and you define that line by its relationship to navigable 

24 

waters. If there is to be no line, then that is a very important decision. But it does not appear to be the intent of this Act that there 

be no line. If there is to be a line, then we need to make certain 

we know what it is tethered to. So that is the difficulty with removing ‘‘navigable waters’’ and not using navigability as a base. Navigable waters are not the only waters that we regulate, but they are 

the tether to which our regulatory jurisdictional line is moored. 

Mr. RAHALL. If you pull that thread, then the whole universe 

may unravel. 

Mr. WOODLEY. That is more dramatic than I would put it. 

Mr. GRUMBLES. Mr. Chairman, thank you for the question. The 

Administration vigorously defended the Clean Water Act in the 

Rapanos decision, and the SWANCC decision as well, to make sure 

that there wasn’t an outcome that said only navigable waters or, 

more precisely, only waters that are navigable in fact are covered 

by the Clean Water Act. In our view, and I know it is the Chairman’s view, that would be inconsistent with congressional intent 

and the way the Clean Water Act has worked. So the key for us 

has been, in this discussion, this debate, avoiding unnecessary litigation or potential constitutional litigation, not as it being unconstitutional on its face to remove the word ‘‘navigable,’’ but really 

more, in my view, as applied to specific circumstances or cases 

where you might get unintended consequences. And as John Paul 

Woodley has stated, we have always used that as a basis—it is not 

the only basis—so it would be a new area if the word were deleted 

from the Clean Water act. 

The other unintended consequence is really, as we said, when 

you are amending one of the most heavily litigated sections of environmental law in the Nation’s history, it needs to be very clear 

what key terms really mean, particularly if you are also deleting 

some terms from the statute. And we have got a lot of regulations, 

not just for the 404 wetlands program, but for the streams and waters under 402, that we would want to look at carefully for potential unintended consequences by removing terms or adding new undefined terms to the statute that the bill would do in its current 

form. 

Mr. RAHALL. Thank you. 

Secretary Woodley, you mentioned in your testimony that H.R. 

2421 may upset the balance between the Federal interest in protecting water quality and the interest of States in managing and 

allocating land and water resources. Could you elaborate on that, 

please? 

Mr. WOODLEY. Yes, sir. And I bring to this discussion a certain 

perspective I had. Before I joined the Federal Administration, I was 

responsible for, among other things as Secretary of Natural Resources of the Commonwealth of Virginia, I had responsibility for 

the State programs for wetlands regulation, and I believe that the 

States are very pleased, in general, and are very accepting of the 

very broad Federal role in wetlands regulation. But I believe that 

is true as long as it is clearly tied to the historic Federal interest 

in navigability and commercial navigation in interstate commerce. 

When the Federal Government moves into an area, as you know, 

Congressman, it has a very strong tendency to take over everything 

related to that area, so I believe that the States would want to unVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
25 

derstand—and I think that we on the Federal side would want to 

understand—exactly what role we were leaving for the States to 

undertake in this arena; the Clean Water Act gives the States a 

very important role as it is currently established, and we want to 

be certain that we are not making changes to that that people 

won’t like in the future. 

Mr. RAHALL. Thank you. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. The gentlewoman from Michigan, Mrs. Miller. 

Mrs. MILLER. Thank you very much, Mr. Chairman. I am so appreciative of all the witnesses being here today. I heard all your 

testimony; I have missed a couple questions, so hopefully this one 

hasn’t been asked. 

It is interesting, this entire debate over this piece of legislation. 

As you gentlemen might know, the Rapanos case actually came 

from Michigan and the companion case to the Supreme Court actually emanated from my congressional district, a piece of property 

about 20 miles from my home; maybe only 10. It is not very far, 

anyway. So my constituents and our entire State, obviously, has 

been following all the litigation to the Supreme Court and the subsequent introduction of this legislation. And I appreciate the Chairman’s comments at the beginning that really the goal of the legislation is not to go beyond what the standard was before the Supreme 

Court action and sort of looking at previous practice. 

One of the reasons, probably one of the largest reasons I even 

ran for Congress was because of protecting of our magnificent 

Great Lakes. So I am a huge proponent of, obviously, the Clean 

Water Act, and I would be a person that you would think would 

naturally be predisposed to want to support this legislation. 

However, I do have a lot of consternation as well: that it is overly 

broad, that it is too far reaching. And I think much of that has 

been talked about already, but I guess I would just throw out generally for the panel do you have any suggestions on how our Committee might amend this legislation in its current form to really try 

to achieve our goal, which is to get back to previous practice prior 

to the Supreme Court decisions without leading to additional litigation and getting us right back into the soup and where we find ourselves today? 

Mr. GRUMBLES. I would offer a couple observations, Congresswoman. 

One is, I think it is a step in the right direction to consider revising the bill not to delete the term, navigable waters. I think all of 

us agree that the Clean Water Act applies to more than just traditionally navigable waters or waters that are navigable in fact, but 

that could lead to a lot of questions and concerns or unintended 

consequences. 

Congresswoman, I also think that there are some key provisions 

in the bill that need clarification, the use of the word, activities, 

rather than discharge of dredge or fill material. But activities, that 

is not speaking to geographic jurisdiction but the types of activities 

that would trigger Federal permitting requirements, and I think 

that one needs to be more focused and discussion on what that 

really means and also what the implications would be. It would 

26 

probably be picking up a lot of previously unregulated types of activities. 

The other, some of the other, as we were discussing, is that the 

bill does incorporate or attempts to reflect a large percentage of 

regulations that the Corps and EPA have on the books, but it 

doesn’t do it all in toto. Therefore, you have to ask questions about 

well, by leaving out some of the exemptions or provisions, does that 

mean that those exemptions or provisions are affected in some 

way? And so, that is an area that needs to be considered further 

and clarified. 

Mrs. MILLER. Let me just, if I can understand your answer, so 

you think we should delineate the term, activities to more closely 

get to what the Congress’ intent is? 

Mr. GRUMBLES. Well, my view is that that is a controversial component of the bill and that the Committee should discuss further 

as to whether or not that is an appropriate approach to take in the 

bill, expanding the activities jurisdiction, potentially expanding it. 

But if the Committee were to decide to do that, I think it would 

certainly be helpful to EPA and everyone else to understand better 

what that phrase, that word, activities, means because that could 

apply to a wide array of things and actually lead to greater confusion or uncertainty than the current situation. 

Mrs. MILLER. I only have 30 seconds here, but what about prior 

converted cropland and some of these that are not exempted? What 

is your thought about that language? 

Mr. GRUMBLES. And there isn’t language in the current version 

of the bill on that, and I guess the point is it is one of the examples 

that comes to mind as a regulation that is on the books in the EPA 

regulations that is not specifically referenced or waived in or there 

is not a savings clause with respect it. 

So it does prompt the question of what would be the implications? Does this bill in some way reduce or adversely affect the existing regulation that exempts prior converted cropland? 

Mrs. MILLER. Thank you very much, Mr. Chairman. 

Mr. OBERSTAR. Good questions, good points to raise. 

I just want to observe, Mr. Grumbles, that the regulations already address activities. I compiled a list of current EPA and Corps 

regulations that I would propose to address in the body of the substitute legislation, including the meaning of waters of the United 

States means those waters which are used or could be used for industrial purposes by industries and interstate commerce, all impoundment of waters, tributaries of waters, territorial sea and the 

wetlands. Those are already listed in Corps-EPA regulations as activities. 

If we limit it, does that define the scope of activities? 

Mr. GRUMBLES. When I think of the provisions, I don’t think of 

those so much as activities. I think of those as categories of waters—the A1, A5, A7, A3 as categories of waters—more than the 

types of activities that trigger a permitting requirement. 

So what I would like to do, Mr. Chairman, is talk further with 

you and your staff about exactly what you are attempting to do. 

Mr. OBERSTAR. The attempt is to define where the waters are 

and to list, describe those waters and to define them as activities, 

but that is fine. 

27 

The term, prior converted cropland, though, does not appear in 

the Clean Water Act, in the body of the Clean Water Act at all. 

Mr. GRUMBLES. Right. 

Mr. OBERSTAR. We did not make reference and I did not make 

reference in my bill to items that were not in and savings clauses 

that were not in the Clean Water Act as amended, but including 

prior converted cropland is another step that I certainly am open 

to. 

Mrs. Tauscher. 

Mrs. TAUSCHER. Thank you, Mr. Chairman, for holding this hearing, and I think that H.R. 2421, the Clean Water Restoration Act, 

is a very good bill and should be passed. 

These recent Supreme Court decisions have created a situation, 

I think, that really no one can live with. The current jurisdiction 

on certainty is not viable, and we must work to clarify this issue. 

I think the current version of the bill is a good step. Bills always 

can be perfected. That is what the process is about. We call it curing. So the more we have people give us input, the better off we 

are going to be. 

But I do believe that it is an important step to reaffirm the existing Clean Water Act exemptions in the bill because manmade conveyances, ditches, treatment lagoons were never considered as waters of the United States and are important to the successful treatment of wastewater. In California, where we lead the Nation in 

many things, including this issue, we would like to know that 

wastewater treatment exemption is included in the legislation. 

So, Administrator Grumbles, you know I am concerned, as many 

people are, about the impact of SWANCC and Rapanos and that 

they are having on our decisions here today. 

Recently, a letter by Associate Administrator, Christopher Bliley, 

to the Committee, the EPA declined to pursue enforcement actions 

304 times between July of 2006 and December of last year because 

of concerns that the water was not jurisdictional due to the 

Rapanos decision. These instances include point source discharges, 

oil spills and the 404 program. 

Can you describe what one of these instances might look like 

and, for example, what would a Section 311 oil spill look like and 

what would EPA typically do in that situation? 

Mr. GRUMBLES. I will take a stab right here, but I think it would 

be best to also commit to get back to you. 

Mrs. TAUSCHER. For the record. 

Mr. GRUMBLES. For the record, for something that is more thorough and perhaps more accurate because I don’t know the specifics 

of it. 

What you have is an example where the agency, using its enforcement discretion, makes decisions as to how strong of a case it 

might have and also the gravity of the harm and takes these into 

consideration on whether to move forward with an enforcement action. Jurisdictional questions or potential legal obstacles to successful enforcement action could include arguments that the waters are 

not jurisdictional under the Clean Water Act. 

The 311 program uses the same definition of waters of the 

United States for spills, spills that could be spills on land but spills 

that are close enough that could get into the water or potentially 

28 

have the potential to get into the water, and those could be jurisdictional under the 311 program. 

We find that in our efforts to implement the Clean Water Act 

after SWANCC and Rapanos, that based on the tests—and we will 

use either the Scalia test or the Kennedy significant nexus test— 

it may be more difficult to successfully assert jurisdiction cases 

when you go further up to the reaches of the watershed where 

there is less of a connection or less apparent of a connection to a 

traditionally navigable water. 

Mrs. TAUSCHER. You can see why we are concerned. Three hundred and four times in an 18-month period is a lot of times. It is 

a lot of bad things happening, and it is a lot of nothing then happening. 

What our concern justifiably is that precedent has not been set 

that these are now not things that are being acted on. Precedent, 

as you know, in this town and in the Federal Government sometimes supersedes reality and even wise judgment. 

What our concern is that there is now been this long time where 

many things have happened that are bad and that nothing has 

been done and that the precedent now is set that those did not 

meet a test, and that test is ambiguous because of these decisions. 

So we come right back to where we were, and I think that we have 

real concern about that. 

I am not a lawyer. I don’t play one on television, but I do write 

laws which is a very dangerous thing, apparently. So I think that 

what we are trying to do here and what we need help and cooperation on is to get out of this ambiguity. 

Mr. GRUMBLES. We support that, and John Paul Woodley and I, 

our two programs, are committed to increasing the predictability, 

the certainty, the jurisdictional scope. 

Then in addition to that, based on the Supreme Court decisions, 

we know that it is very important to work with the States, our 

State partners to increase stewardship, to help develop programs, 

build capacity for State wetlands protection programs so that for 

those waters that may not be covered by the Clean Water Act even 

before the Supreme Court decisions. 

Mrs. TAUSCHER. I agree with you, but if the Chairman will indulge me, we don’t want to go back to a 50-State patchwork quilt 

again. That doesn’t help us either because we all know if we can 

all name five instances where these waters area actually borders 

and are shared by numbers of States. So we don’t want to go to 

do that either. 

We need the Federal Government to speak clearly and predictably, and we need to get past the situation that we have now which 

has too much ambiguity, too much time where bad things have 

happened, and there has been no action that has caused a precedent where people cannot expect what will happen and where we 

find ourselves, I think, in a decline of protection as opposed to the 

kind of thing that the American people expect us to have. 

I appreciate your efforts. I appreciate your agreement to work 

with us. I know that you have a record of doing that. 

Mr. Chairman, once again, thank you for a great hearing. 

Mr. OBERSTAR. I thank the gentleman. 

Mrs. Drake, the gentlewoman from Virginia. 

29 

Mrs. DRAKE. Thank you, Mr. Chairman. 

Thank you, gentlemen, for all being here. 

I think we can all agree that there is just a sort of a lack of understanding, a lack of what the definitions are. 

Mr. Chairman, in your opening statements, I really appreciate 

that you talked about improvements that have been made since the 

Clean Water Act has come into play. I think often we don’t do that, 

and that is to really recognize that we have made some great 

strides, that we certainly have more work to do, but I would want 

to bet that every person sitting in this room wants the end result 

of this to be to protect our environment and to make sure we aren’t 

doing things that are harmful and to find the balance that we are 

all looking for. 

I sat in the first hearing and what really struck me was we were 

all asking the same questions over and over and over again, and 

it was an example of definitions and what does it mean by using 

these new terms and are we really talking about unintended consequences and the example of pulling the thread and the universe 

unraveling. 

But my question is have your agencies done something almost 

like a comparison or an outline of this is existing law, this is the 

way you interpret this new bill to be? 

Because we have all heard the Chairman say that he is open to 

recommendations. He wants input. This is a starting point. The 

more I listen to people, including today, I think people want an 

easier process. They want to know that things are being done with 

certainty and that people aren’t waiting 8 years and $250,000 

worth of costs to move a project forward. 

So one of my questions is in trying to understand what this bill 

is and does this bill really clarify like we hear or does this bill have 

such unintended consequences because there are no definitions. 

Even the question of Mr. Boozman about groundwater, how do we 

interpret? 

So have you laid out this is existing law, this is what it would 

be under the new proposed bill? 

Then my other half of that question, if we can get to it, is how 

difficult for you has it been since the Supreme Court decisions? 

Has it been completely impossible to determine how you are supposed to regulate this and, at the same time, would this bill make 

it clearer? 

That is where we are all coming from. I think we all want the 

same thing, and we want the same answer. We just want to make 

sure that we lay it out properly, that we all know where it is going. 

Mr. WOODLEY. Congresswoman, certainly in preparation for the 

hearing, the agencies did analysis basically sufficient for us to express the areas in which we would like to, going forward in particular, work with the Committee to seek a deeper understanding 

of what the actual practical impact of some of these provisions 

would be. So there is some of it. We have conducted some analysis. 

I wouldn’t describe it as exhaustive or in depth. 

Mrs. DRAKE. But it is an outline? 

Mr. WOODLEY. We have begun, certainly, that effort and we intend to continue working, as we all said in our testimony, with the 

Committee and with the Chairman and all the Members to craft 

30 

as good a product as we can because we are the ones that will end 

up with it in our in-boxes at the end of the day. The one thing that 

a regulatory program needs more than any other is clarity and certainty. 

Then, in answer to your second question, I think that the people 

of our wetlands regulatory program in the Corps have responded 

magnificently to this challenge of having a very interesting Supreme Court decision that had no majority opinion and gave rise 

to very interesting questions. We worked with in a very collegial 

way with EPA and throughout an interagency process to provide 

our best understanding to the field of what the Supreme Court was 

doing and what the decisions meant. I think that our regulators 

are taking time to understand that. 

The real fact on the ground is that our old rule that I was talking about with the ordinary high water mark was fairly easy to administer. 

The new one requires more information, more understanding. 

Some people would say that that is actually a good thing, but you 

have to pay for it like all good things and that means people have 

to do more analysis, more measurement, more going out on the 

ground, more science to establish the significant nexus that we require for jurisdiction. 

Mrs. DRAKE. Are you able to share that comparison with us so 

that we are able to understand what we are doing and what we are 

putting on your plates? Is that possible for the agencies to share 

that with us? 

Mr. WOODLEY. Certainly, we will, Congresswoman, going forward. 

Mrs. DRAKE. Thank you. 

Mr. WOODLEY. You can see, as far as sharing, in my written testimony, it lays out the main points that we would like to raise at 

this time. 

Mr. GRUMBLES. I would just add that we feel that the guidance 

that was issued in June has been a helpful and useful tool so that 

we can continue to carry out the Clean Water Act. We are making 

jurisdictional determinations. We have made over 18,000 since the 

guidance was issued. We are continuing to carry out and enforce 

the Clean Water Act provisions. 

It does add a complexity since the Supreme Court decision, having to make significant nexus analysis. We feel the guidance has 

helped us in that respect. 

But we also know, based on the 63,000 comments we got during 

the public comment period, that we have some additional work to 

do, consideration. Whether it is revising the guidance or reissuing 

it or suspending it and taking another approach, we know that we 

are going to be doing some additional outreach and technical assistance and training and workshops to help add as much clarity and 

certainty to the current landscape we have since the Supreme 

Court decision. 

Mrs. DRAKE. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. Mrs. Miller would like to be recognized for a brief 

intercession. 

31 

Mrs. MILLER. Just for one other, in full transparency, Mr. Chairman, as well, I talked about the Rapanos case and the companion 

case having emanated from the State of Michigan. Actually, I got 

a report from CRS about the Rapanos case and what it all means. 

But the original case, Riverside Bayview Homes, that the Supreme Court went into in 1985 is in my home township, and I was 

a township supervisor about that time. That was the original Supreme Court venture into how far the Army Corps of Engineers has 

to go with their permitting process. 

This was an individual who had a large tract of land, obviously 

wetlands. It is next to a very large beach area there. When we 

were building the Interstate 696, he started pulling all of this fill 

dirt from the interstate and just filling this place in. 

The Corps of Engineers stopped this individual, Mr. George 

Schorr, who is subsequently deceased now. He threatened a Federal judge. They put him in jail. When he came out, it was like One 

Flew Over the Cuckoo’s Nest, this poor guy. But anyway, at any 

rate, he was definitely filling in a wetlands area. 

I just mentioned that. So this was back in 1985. I really have 

been following all of these issues. It feels like they all come out of 

my particular region. So we have a lot of this activity going on. 

Mr. OBERSTAR. Are you saying we have you to thank for all this 

litigation and the Supreme Court actions? 

Mrs. MILLER. I clearly remember being at the local level when 

this particular development. He was putting in underground all the 

water. The sewer, the fire hydrants were still back in this wetlands 

area, and that was where he was getting all the fill dirt. 

But that was the first, I believe, that the Supreme Court got into 

whether or not the Corps of Engineers, where your jurisdiction 

emanated from for permitting. I just mention that. 

Mr. OBERSTAR. We can’t thoroughly blame you. That was Mr. 

Bonior’s district at the time. We will blame him. 

Mr. WOODLEY. Mr. Chairman? 

Mr. OBERSTAR. Mr. DeFazio. 

Mr. WOODLEY. I think I should assure the Congresswoman that 

we are operating a national program in every district in the Country and not merely in hers. 

Mr. OBERSTAR. Yes, we fully understand. 

Mr. DeFazio. 

Mr. DEFAZIO. Thank you, Mr. Chairman. 

Mr. Chairman, I don’t think we can live with the uncertainty of 

the Rapanos decision and some of the ill intended effects that can 

grow from that. On the other hand, as you know, I have expressed 

some concern, and you have indicated here today some flexibility 

in terms of the wording of this legislation. I am hopeful this hearing will lead us down that path. 

I, like Mrs. Miller, have been charged with implementing both 

my State and Federal regulations in this area when I was county 

commissioner and out looking at depressions in the earth. In Oregon, those depressions fill with water a fair amount of the time 

in the winter and then determining plant structure and soil types 

and all sorts of things to determine whether or not we were dealing 

with an ephemeral wetland or just the Oregon landscape itself. 

32 

That is what is of particular concern to me with the bill as written 

here. 

When we talk about all intrastate waters, then we talk about activities affecting those waters, really the crux of this bill is: What 

is a water? 

Before Rapanos, we had to consider what water was within Federal jurisdiction or, in my case, Federal or State because we had 

protections in both areas. Now we have to consider what is water 

and then I guess we would have to go through some rulemaking. 

I certainly think we need some honing in on this issue, and I think 

others from the Northwest might agree. 

At what point does water running down any slope in the western 

side of Oregon, Washington and northern California constitute—I 

mean as raining is running off, which it is today since we are having an abnormally late, cold, wet winter—does that constitute 

water that would be regulated by the Federal Government when 

activities affect it: timber harvesting, Christmas tree harvesting, 

other activities, certainly building, affect drainage from those 

areas? 

I mean there is a whole host of issues that I think are out there. 

I guess I would ask these particular experts, do they agree with 

that? 

I have read through all the testimony, and I am getting this 

through reading other testimony that will come later because I am 

not a lawyer. I have been charged with trying to implement this 

stuff, but I am not a expert on it. 

Would you share? Do you think that is a fair characterization of 

where this might take us? What is water? 

Mr. WOODLEY. Yes, sir. Yes, sir, I do. 

Mr. DEFAZIO. Then how would we deal with that issue, like particularly in the instance I have talked about where we have a slope 

in the State of Oregon today and for 180 or 200 days this year 

there has been water running down that slope, but that happens 

to be all of western Oregon, Washington and northern California? 

Would that become potentially regulated? 

Mr. WOODLEY. Yes, sir, I would think that you would have to. As 

I would read the statutes, it would appear to be sufficiently broad 

to give you a very, very strong argument that all of those rivulets 

that you describe would be jurisdictional waters of the United 

States. 

Mr. DEFAZIO. Okay. I have a bunch of them in my back yard. 

Does anybody else agree with that or want to comment? 

Mr. GRUMBLES. Congressman, I would just say that I think the 

key is to be able to clarify what the terms are in the bill and that 

it could, in its current form, it could be more than simply restoring, 

probably is more than simply restoring jurisdiction. It could be expanding jurisdiction in some respects, and I think that is certainly 

the case by using the activities phrase that you mentioned earlier. 

The other dialogue we have been having in the hearing is the 

need to also make clear that when you are referencing or incorporating some of the existing exemptions in the regulations, exemptions from Federal jurisdiction, but you don’t reference them, others are those others like prior converted cropland exemption or 

33 

waste treatment systems exemption. Does that mean that those are 

now repealed or, in some way adversely affected? 

So the basic point, I think, from an EPA perspective is that we 

would want to work with the Committee to clarify terms and also 

understand what the provisions mean in the bill because, in its 

current form, it could lead to more uncertainty and a broadening 

of jurisdiction in some cases and certainly that could lead to litigation as well. 

Mr. DEFAZIO. Okay. Thank you. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. Mr. Westmoreland. 

Mr. WESTMORELAND. Thank you, Mr. Chairman. Thank you for 

yielding. 

Just to kind of follow up on that, so it is the belief of at least, 

I think, three of the panel members—I don’t know about Mr. Lancaster—that this would broaden the scope of the Clean Water Act? 

Mr. LANCASTER. Let me just clarify on our position. We are not 

the regulatory agency. The authorities for our program are not affected, but we work with the producers. 

Certainly when you are looking at the regulatory agencies and if 

there is uncertainty among those agencies of what the legislation 

intends and how they would enforce it, our workload may be affected. But in terms of what we do as an agency, how we work with 

producers, how we enforce our small bit of regulatory authority, 

which is conservation compliance, it is not affected by the Clean 

Water Act. So my silence is really just a reflection of what our 

agency’s role in regard to the Clean Water Act. 

Mr. WESTMORELAND. Mr. Woodley, I know there for a while you 

all had a very big backlog of 404 permits and people trying to get 

those. Is that backlog down now and do you think that this bill, 

as it is written today, would put more of a burden on what the 

Corps actually does and actually lengthen some of the time of this 

permitting process? 

Mr. WOODLEY. I believe that we have, to some degree, reduced 

our backlog although it remains unacceptably high. Part of that is 

one of the reasons that we have increased our budget for this activity in every year that I have presented a budget until the one just 

presented for 2009 in which we kept it level for 2008 to 2009 in 

spite of the fact that our budget overall for the Corps of Engineers 

Civil Works was reduced. 

My answer is that I don’t have a detailed work analysis for how 

this would go. The current is true, that you would have to recognize that the Supreme Court decision also calls for a great deal of 

analytical work to be done. 

So if that analytical work was less than had to be done under 

this, then the fact that this might potentially increase the geographical scope might wash out. If the geographical scope of our jurisdiction led to more permits but each permit required less work, 

we might not have a regulatory burden, but I think we would want 

to understand that. 

In any case, I believe that this program will continue to need 

substantial increases in resources devoted to it just in order to 

make as efficient as it can be. 

Mr. WESTMORELAND. Should I take that as a maybe? 

34 

Mr. WOODLEY. Yes, sir. 

Mr. WESTMORELAND. Okay. I didn’t know if it was a yes or a no 

but a maybe. 

Mr. WOODLEY. A strong maybe. 

Mr. WESTMORELAND. Okay. 

Mr. Grumbles, what is the EPA’s opinion of this as far as how 

you and Mr. Woodley have worked together, the Corps and the 

EPA have worked together as far as coming up with regulations 

that you have put into effect since the two Supreme Court rulings? 

It seems to me like those have been pretty effective and really 

have kind of streamlined somewhat of what the system really had 

been before those two Supreme Court decisions came down. I look 

at it as at least getting you two together to work and to come up 

with something that you could both agree with. 

In light of your testimony that these wetlands are actually increasing every year, it doesn’t seem like the Supreme Court decision had a negative impact on what is really happening to our wetlands and, if it has done anything else, improved the 404 process. 

Am I right or wrong? 

Mr. GRUMBLES. On the first point, I think there is no doubt that 

we have increased coordination efforts because we wanted to and 

also because we needed to with the uncertainties from the Supreme 

Court. And so, we need to continue to work on that and improve 

that because the regulated community as well as the environmental community heed to have as seamless as possible a coordination between the two agencies. 

EPA’s role is not as the primary permitting agency but laying out 

the guidelines, the procedures and also making the ultimate call on 

geographic jurisdiction or exemption questions, but we feel like we 

have made good progress and we work together closely and identify 

policy issues and elevate those to headquarters as needed. 

On the other question or comment, I think there are two aspects 

to look at. One, the President’s new goal for the Nation that he announced on Earth Day 2004 was, aside from the regulatory programs and the no net loss goal that is part of our regulatory programs, he wants to see an overall gain in wetlands using voluntary 

stewardship programs and that coupled with the regulatory program under the Clean Water Act or other regulatory provisions is 

the way to go. 

There is no doubt in my mind and from an EPA perspective that 

the Supreme Court decisions have caused concern in part because 

of the uncertainties for the regulated community and for us on carrying out the Clean Water Act. We think we are doing as good a 

job as we can. We need to review or revise or make appropriate 

changes to the guidance we issued in the regulated community. 

But while we do that we think it is very important to use, with 

the Farm Bill tools that they have, the other programs, Interior 

programs and work closely with the States to increase their capacity for State wetlands programs. We think that will help us all 

focus on not just the regulatory legal issues after the Supreme 

Court decision but on reaching the greater goal which is an overall 

gain in wetlands, and we feel that we are making progress on that 

respect. 

35 

Mr. WESTMORELAND. Mr. Chairman, if I could just ask Mr. 

Cruden, a yes, no or maybe? 

Mr. OBERSTAR. A very brief answer. 

Mr. WESTMORELAND. That is right, a very brief answer, a very 

simple question. Do you think taking the word, navigable, out will 

cause more litigation? 

Mr. CRUDEN. I don’t think it will reduce litigation. 

Mr. WESTMORELAND. Thank you. 

Mr. OBERSTAR. Mr. Baird. 

Mr. BAIRD. I thank the Chairman for holding this hearing, and 

I thank our witnesses for most informative testimony. 

Mr. Woodley—bluntly, to all of the witnesses—one of the things 

I hear back home a lot is the time it takes to get a permit, and 

it is difficult. You have difficult decisions to make, often technical 

questions to be answered, but also some personnel issues and 

logistical issues. 

Whether or not this bill were to become law, that issue of permitting time and speed and efficiency needs to be addressed. I wonder 

if you might comment a little bit about what more can be done in 

that regard and then also if you would add to that how this bill 

would possibly impact or the lack of this bill would impact that. 

Mr. WOODLEY. Yes, sir. We are working on two fronts to continue 

to improve our processing time equation. We have established nationwide standards for processing of all types of Corps permits and, 

where they are not met, then we are applying these management 

tools to this issue. 

The first is the one I mentioned. That was that we have, and the 

Congress has strongly supported our efforts, increased the 

resourcing for the regulatory program. We suffered a setback in 

that regard during fiscal year 2007 in which time we were operating under a yearlong continuing resolution. Our funding was frozen at the 2006 level. 

The passage of the fiscal year of 2008 bill in, I believe it was, 

January of this year has finally freed up the increased revenues or 

increased resources to make a real difference in the districts. 

Wherever I go, the district commanders and the regulatory chiefs 

are telling me that they are beginning to see those resources. They 

have recruitment on the streets. So if anyone knows a bright and 

talented young biologist or life science person or someone who is 

interested in regulatory, this is a great time to join the Corps of 

Engineers. 

The other part that we are working on is business process transformation, using the principles of the lean system that traces back 

to the Toyota manufacturing for quality and to remove as much of 

the time as we possibly can, and get everything put together as 

quickly as possible and improve our business processes. We 

mapped our business processes for the regulatory program, and it 

was not a pretty sight. 

So we have gone into that process and created the teams necessary to eliminate redundancies and really squeeze the non-value 

added time out of that, hopefully, by moving the resources because 

we have no intention of solving any problem just by throwing 

money at it. We are moving the resources up, bringing the inefficiencies down. We really hope we will see substantial increases. 

36 

This legislation, I don’t give you any details on what it how it 

would be, but other than the fact that any increase in uncertainty 

or things that people have to relearn is a setback. I could tell you 

that. 

Mr. BAIRD. I appreciate it. I get that. 

Mr. WOODLEY. We will make this work. If this is passed by Congress, I assure you the Corps of Engineers will move heaven and 

earth to make it work. 

Mr. BAIRD. Great. I appreciate that. 

Mr. Grumbles, I only one minute left. You seemed ambiguous 

about the issue to which aquifers are protected and who has regulatory authority over the protection of aquifers. Do you want to 

chat about that a little bit? 

Mr. GRUMBLES. Thirty seconds worth, I would say the Clean 

Water Act understands that groundwater is important to surface 

water and to the whole ecosystem, but it doesn’t provide regulatory 

authority to the Federal Government for activities, discharges into 

aquifers or groundwater. 

Mr. BAIRD. Even if an aquifer connects directly to a waterway, 

even though you can trace it? 

Mr. GRUMBLES. Well, no. Then that is where the interesting legal 

aspects get into it. If there is a close, a very close hydrologic connection, then in some cases the courts have found that that is sufficient enough of a connection. But, generally, the general rule is 

that aquifers are not regulated under the Clean Water Act. 

Groundwater isn’t. 

The point is the question came up about the legislation, the bill 

in its current form. I think it is a fair question to ask and it can 

be answered by the Committee, what is the intent of the bill? 

Would it be changing that general rule in some way? 

Mr. BAIRD. It is an intriguing thing that the source of the drinking water for the majority of Americans is not protected under the 

Clean Water Act. I will leave that for another hearing at some 

point. 

Mr. GRUMBLES. Well, it is in the sense of not in a regulatory 

sense. In terms of planning and financial assistance and working 

with States to use their authorities, there is a recognition that it 

is a holistic watershed approach. But in terms of 402 or 404, the 

regulatory aspects, it is really not. 

Mr. BAIRD. Thank you very much. 

Mr. OBERSTAR. You are saying there is a connection, though, 

with groundwater or with aquifers and where that connection can 

be demonstrated, the regulatory process has covered. 

Mr. GRUMBLES. Yes, that is true. 

Mr. OBERSTAR. Under current law. 

Mr. GRUMBLES. Under current law and the definition. I mean 

there is a difference between groundwater and aquifers. 

As John Paul Woodley would say better than anyone, you go 

down certain inches into the soil, water, moisture under the surface 

is part of the definition of a wetland which would be regulated 

under the Clean Water Act, using our current regulations. 

Aquifers, the general rule has been discharges into groundwater 

aquifers is that it is not, but it gets into some case by case determinations in some situations where a discharge into groundwater 

37 

is so closely connected to a water of the United States, that some 

courts have found that that is enough to have Federal jurisdiction. 

Mr. OBERSTAR. Mr. Larsen. 

Mr. LARSEN. Thank you, Mr. Chairman. Really, Mr. Chairman, 

thanks for holding this hearing. I know many of us had asked for 

an additional hearing to hear from additional people. I, for one, appreciate it and a little while later, maybe around midnight, you will 

be hearing from Skagit County Commissioner Don Munks who is 

on panel three. I appreciate the chance to be here. 

A lot of the discussion between now and actually previous has 

been people for or against H.R. 2421. Just listening to this testimony, it sounds like it is really more of a matter of are you sort 

of navigable waters plus or are you waters of the United States 

minus. Maybe if we look at that rubric, we might have a better 

chance of coming to a conclusion on legislation to address the problem that the Chairman and many others are trying to address. 

For Mr. Woodley, I would be interested. Can you briefly describe 

the difficulty in applying two standards as your guidance seems to 

propose, the plurality standard and the Kennedy standard? 

Mr. WOODLEY. Yes, sir. I don’t believe we have had a significant 

difference in doing that because in almost every case, if it meets 

the plurality standard, it will also meet the Kennedy standard. 

There is a theoretical possibility of meeting the plurality standard 

without meeting the Kennedy standard, although I don’t believe I 

have ever seen that in the real world. 

Mr. LARSEN. Also, Mr. Woodley, if the legislation proposed was 

signed into law—and for you, Mr. Grumbles, too—would the Corps 

and EPA have to promulgate new regulations or could you simply 

apply the 2007 guidance document? 

Mr. WOODLEY. I believe we would be called upon to issue new 

regulations to properly implement the new legislation. 

Mr. LARSEN. Mr. Grumbles? 

Mr. GRUMBLES. You said the bill in its current form? 

Mr. LARSEN. In its current form. 

Mr. GRUMBLES. I think it would behoove both the agencies to 

work to provide some greater clarity or certainty as to what terms 

meant and how we were going to be interpreting those terms and 

implementing them through regulations. 

Mr. LARSEN. Yes. 

Mr. Cruden, on page 10 of your testimony, you discuss a Seventh 

and a Ninth District Court decision, the Seventh Circuit being the 

U.S. v. Gerke and the Ninth Circuit, Northern California River 

Watch v. City of Healdsburg. 

On the Ninth Circuit decision, in your testimony, you said that 

the court initially stated that Kennedy’s concurrence was the controlling law, that the significant nexus test was controlling, but 

that DOJ filed a motion asking the court to clarify the statement 

by recognizing—this is from your testimony—by recognizing that 

jurisdiction may also be established under the plurality standard. 

In that case the Ninth Circuit, at least initially, not only applied 

the Kennedy standard but said the Kennedy standard only applied? 

Mr. CRUDEN. That is correct, before they amended their opinion. 

Then, after we filed the brief, they amended their opinion and 

added a few words to limit their decision to that particular. 

38 

Mr. LARSEN. The language here is for our case. 

Mr. CRUDEN. Yes, and so we believe that gives us some ability 

in the future in the Ninth Circuit to argue in a specific factual setting that the plurality decision, if it was applicable, could be used. 

That was not decided at all. 

Mr. LARSEN. Okay. I haven’t been through your entire testimony, 

but has there been a case since Rapanos where you have filed an 

amicus brief for the opposite? That is a court used the plurality 

standard solely and neglected to apply a significant nexus? 

Mr. CRUDEN. No. All of the courts that we have dealt with so far 

have been using either the Kennedy test or both tests. That has 

been where we are. 

As I have mentioned in my testimony, we take the position we 

could meet either test. As you know from reading it, the First Circuit has agreed with us. The Eleventh Circuit recently disagreed 

with us. 

Mr. LARSEN. Disagreed? The Eleventh Circuit disagreed with you 

on applying? 

Mr. CRUDEN. The Eleventh Circuit applied solely the Kennedy 

test. 

Mr. LARSEN. So the Eleventh Circuit applies solely. 

In the Ninth Circuit, they agreed to say in this case, Kennedy 

applies. 

Mr. CRUDEN. That is correct. 

Mr. LARSEN. But, as a general rule, we are going to apply both. 

The Eleventh Circuit came to a conclusion that we are only going 

to apply the Kennedy, thank you very much, Department of Justice. 

Mr. CRUDEN. That is correct. It was a case called Robison. It was 

in a criminal context. 

We strongly disagree with the decision. We filed en banc very recently. The Eleventh Circuit denied our en banc petition, but two 

judges dissented. That case is under review right now. 

Mr. LARSEN. Where is the Eleventh? 

Mr. CRUDEN. Atlanta. 

Mr. LARSEN. Atlanta, okay. 

If I just might, Mr. Chairman. 

Mr. OBERSTAR. Very briefly. We are about to have votes, and 

there are other Members. 

Mr. LARSEN. Then that is fine, Mr. Chairman. I appreciate it 

very much. Thank you. 

Mr. OBERSTAR. Mr. Petri. 

Mr. PETRI. Thank you very much, Mr. Chairman. I appreciate 

your scheduling this very important hearing and introducing legislation that raises the issue. 

I would just like to state that I hope that as we move forward 

in considering that legislation you are open to, on the basis of testimony and other discussion, refine it. As you know, there has been 

considerable pushback to either the perceived or actual breadth of 

the legislation and some uncertainty as to how it would actually be 

interpreted as far as some respects of the bill are concerned. 

I think the intent is to try to help clarify things and to restore 

disputes that have come up or differences, resolve differences of interpretation in different parts of the Country and different courts. 

39 

Mr. OBERSTAR. If the gentleman would yield, I was very explicit 

in my opening remarks about open to change, open to adaptation. 

The purpose of this hearing is to get a range of views on the implications of the bill as introduced. I explored with the present 

panel various adaptions of the existing language in the bill, and I 

will be happy to discuss the matter with the gentleman further. 

Mr. PETRI. Thank you, because I do know that before the Supreme Court decision, we had considerable legislative business having to do with Corps of Engineers perceived or actual jurisdiction 

down to small subdivisions and other developments, and it really 

was not what you would call an elegant administrative situation. 

They just did not have the administrative capability to deal with 

a lot of the smaller issues, and the result was considerable frustration and confusion among our constituents. 

So I am hoping that if we do address this, that we do it in a way 

that reduces confusion rather than recreates it. 

I would just ask Mr. Ben Grumbles, who has always sat there 

but has sat on both sides of the legislative divide, being a hardworking staff member on this Committee and now being in the executive branch, if you have any advice as to how we might improve 

the legislation that is currently before us. 

Mr. GRUMBLES. Thank you, Congressman. 

As I mentioned a little bit earlier before you came in the hearing 

room, we stand ready to work with the Committee as does the 

Corps, I know. 

There are some key terms in the bill or questions that have arisen. One is the reference to activities triggering a need for a permit. 

The other is clarifying whether or not certain exemptions that may 

not be stated in the statute but are in the regulations, whether 

they would be affected in some way by the bill in its current form. 

Then we also think it is important to look at some of the other 

aspects of the bill: the Federal-State relationship and potential unintended consequences. And, then the key one is having further 

discussion about the advisability or not of deleting that phrase, 

navigable waters. 

So those are some of the areas that EPA and the Army Corps 

look forward to having further discussions with the Committee on. 

Mr. OBERSTAR. Mr. Salazar. 

Mr. SALAZAR. Thank you, Mr. Chairman. I appreciate, first of all, 

your willingness to listen to us and your willingness to have this 

hearing. 

I think I am the only farmer left in the whole Committee. So my 

question is for Mr. Lancaster. 

As you know, there has been widespread support for the wetlands reserve program and the EQIP and WRP programs which 

have apparently netted a net gain in wetlands throughout the 

United States. I guess I would ask you in light of what is currently 

before us, this current legislation, do you believe it would have a 

negative impact on the net gain of wetlands and how much of that 

net gain? 

I think that Mr. Grumbles talked about the 44,000 acres, if I am 

correct. Was it you? Forty-four thousand? How much of that is actually agricultural land? 

40 

Mr. LANCASTER. For agriculture, the number is 44,000 acres a 

year. I believe that the total number is? 

Mr. GRUMBLES. Thirty-two thousand through the National Wetlands Inventory that the Department of the Interior Fish and Wildlife Service issues. 

Mr. SALAZAR. Okay. What I would like you to focus on, as we 

have been focusing on all the negatives on the current legislation, 

I would like for you to make a positive recommendation as to how 

we make this better as the Chairman has clearly stated that he is 

willing to work with all of us to make this a better place for all 

Americans. 

Mr. LANCASTER. Again, I will confine myself to our programs. 

Our programs are voluntary incentive-based programs. Landowners choose of their own volition that they would like to enroll 

lands in the Wetlands Reserve Program for 30 years or permanently, and those are decisions where they need to take into consideration what activities will they be able to continue to use those 

lands for, what liability are they incurring as we make these decisions. 

Likewise with the Environmental Quality Incentive Program, our 

cost share program. Landowners are making a significant investment. As you know, in agriculture, it is difficult to make small 

changes to your operation. There are significant costs associated 

with those changes. 

So the question really is what certainty does a producer have in 

their decisionmaking? If I agree to enroll my land permanently in 

the Wetlands Reserve Program, to give up my right to use that 

land for anything other than quiet enjoyment and whatever compatible use I might negotiate with the agency, what risk do I face 

with regard to the Clean Water Act in any definition of activity and 

what those activities might be? 

So it is difficult for me to answer from an NRCS perspective because how we work will not change. Who we work with, and when 

we work with them may change based on the scope of how this legislation might be implemented. 

My suggestion again would be to be clear in the intent, clear in 

the legislative language, clear with the regulatory agencies so that 

producers have some certainty. If I am going to enroll my land— 

and many producers, as you know, are land rich but cash poor— 

if I am going to enroll my retirement program and my children’s 

retirement program in a permanent wetland, what uses will I have, 

what liability will I be subjected to? 

My advice again on this is to work closely with the regulatory 

agencies to make clear the intent of the legislation so that the regulations that come out can be as clear as possible, so that certainty 

can be provided for those landowners who are, to date, taking great 

strides in enrolling their lands in these programs. Demand for our 

program far exceeds available funding. Producers are doing the 

right thing. They want to do the right thing. 

The question for me from them really is what certainty do we 

have that we will not be penalized in the future for these actions? 

Mr. SALAZAR. Thank you, Mr. Chairman. 

I will yield back so that the other two Members can ask questions before we vote. 

41 

Mr. OBERSTAR. I thank the gentleman and very much appreciate 

his participation and his substantive contributions to our discussion on the pending bill. 

Mr. Space. 

Mr. SPACE. Thank you, Mr. Chairman. Again, thank you for calling this hearing. 

Mr. OBERSTAR. I should observe that there are 9 plus minutes remaining on this vote and 426 have not yet voted. 

Mr. SPACE. Thank you, and I will keep it brief. 

Mr. Lancaster, I want to direct my question to you and anyone 

else on the panel could feel free to contribute if you feel it is appropriate. 

You know I am hearing a lot from the farmers in my district who 

are very concerned about the proposed language of 2421. I think 

that there is a lot of hyperbole surrounding this. I mean I am getting complaints from farmers who are worried that mud puddles 

and bird baths will become subject to EPA and the Corps of Engineers oversight. Clearly, there was some exaggeration. 

I am trying to figure out a way to cut through the hyperbole and 

make an accurate assessment of the kinds of producers and activities, in particular with respect to farming and agriculture, that 

might be subject to expanded jurisdiction under the revised language that would not be subject to such jurisdiction right now. 

In your testimony, you indicate that that is the case. I would be 

curious as to know whether you have any specific activities or producers that would be affected. 

Mr. LANCASTER. Congressman, again, the question for us as we 

work with producers is the uncertainty. The legislation, as introduced, I believe it has both deleted the term ‘‘navigable’’ and 

changed the term ‘‘discharges’’ to ‘‘activities.’’ 

Both of those result in questions: What activities would now be 

subject to this? What activities would enjoy the savings clause? 

Which activities would require permits? Which activities, as the 

Corps and EPA might promulgate regulations, might be considered 

normal farming activities if activities might change in any way? 

So the question is not this is what the legislation will do or won’t 

do for us, but for the producers I have interacted with, as we look 

at implementing our program, it is more a question of uncertainty. 

What could it do? 

I think that is the question that Assistant Administrator Grumbles and Secretary Woodley have discussed, which is they view this 

as an expansion which would then beg the question for the producer, how am I affected by that expansion? 

Right now, through USDA, we simply don’t know. There could be 

no effect on producers who are affected by the savings clauses. The 

legislation may or may not include prior converted cropland and 

how producers might be affected who have those designations on 

their land. But the question really right now is just the uncertainty. 

I would have to defer to my colleagues who would be implementing it. 

Mr. SPACE. I guess it would depend on the interpretation by the 

various administrative agencies as well as judicial interpretation. 

We don’t have time to go into that. I wish we did. 

42 

But I would be curious to know if and, in fact, welcome any 

member of the panel that might offer suggestions to provide more 

clarity in the legislation to avoid those uncertainties, minimize permit processing times, and perhaps even expand or develop the savings clause or exemptions to help bring clarity and brevity to the 

process. 

Again, I thank you, Mr. Chairman, for this opportunity. I yield 

back. 

Mr. OBERSTAR. I thank the gentleman. 

Ms. Hirono. 

Ms. HIRONO. Thank you very much. 

I have a pretty basic question. There are all kinds of fears being 

expressed about this legislation, and my colleague next to me just 

expressed some from his constituents, and we have all heard those. 

My question is, though, since there is so much confusion that 

was attendant to these two decisions which were supposed to hopefully clarify the Clean Water Act but they did not, and then the 

guidance, those having guidance based on these confusing decisions. There are those who say, well, let’s let the guidance proceed, 

let’s implement them, et cetera. 

Don’t you think that it makes sense for Congress to really focus 

on being the voice that provides the clarification because, after all, 

it is the language that Congress comes up with that is going to be 

interpreted by the courts? 

At this juncture, as we sit here with this bill and in the environment of, well, Congress, you don’t have to do anything because it 

is too confusing, I don’t want us to be in a position where we are 

not moving forward on this bill in a reasonable way with your help 

and with the help of others in the community. 

Mr. Grumbles, what are your views on this? 

Mr. GRUMBLES. Congress has a hugely important role in this, obviously, and you are correct as you ask the question. 

EPA believes in working that the Corps, that it is a sequencing 

process where it makes sense for the agencies who are closest to 

the ground to develop guidance as we did, to road test, to see how 

it is playing out which we have done and continue to do. Then from 

there, we can make our decisions about whether to revise the guidance or reissue it or suspend it and take a different approach while 

we are working with Congress on this issue. 

So we don’t have an official position yet on whether legislation 

is needed at this time, but we certainly have an official position of 

wanting to work with the Congressional Committees, whether it is 

in oversight hearings to review what is happening or to get views 

on proposed legislation. 

Ms. HIRONO. Well, the reason I ask the question in that way is 

really your guidance is based on very confusing case law, and so 

I don’t see why we should proceed in that vein as opposed to Congress saying, all right, we are going to provide the statutory language that will clarify matters. 

Thank you. 

Mr. OBERSTAR. We now have four votes in progress, and three 

minutes remaining which could take as much as forty minutes. So 

we will remain. We will be in recess at least until 10 minutes after 

the conclusion of the last vote. 

43 

The Committee stands in recess. 

[Recess.] 

Mr. OBERSTAR. The Committee will resume its sitting. 

I appreciate the patience of all the witnesses, especially those of 

the first panel who have been here a very long time, unfortunately, 

the interruption of votes. 

I have just one, perhaps one question or a series of questions. 

Mr. Grumbles, EPA testifies that waters of the United States is 

an important factor but not the only factor in determining whether 

an NPDES permit is needed for a particular discharge. Then your 

testimony refers to Justice Scalia’s comment that his construct of 

the Act does not necessarily affect enforcement of Section 402 related to point sources. 

Now there is only one prohibition on a discharge of pollutants in 

Section 301 and one definition of navigable waters in Section 502. 

Is there a distinction to be made between waters where it is unlawful to discharge a pollutant without complying with 402 and the 

waters where it is unlawful to discharge without complying with 

Section 404? 

Mr. GRUMBLES. Well, Mr. Chairman, I think what I am attempting to convey is that it is true; we all agree that there is one definition, one waters of the U.S. in the Clean Water Act, and that applies to 402 and 311 and 303 as well as 404. 

The point we are trying to make is the point that Justice Scalia 

made, and that is in 402, it doesn’t have to be a direct discharge 

into waters. It could be an indirect discharge into waters. So that 

is why he was describing, as I recall, in his portion of the case, that 

the standard or test he is laying out in the 404 construct may not 

affect aspects of enforcement under 402 because there could be a 

402 discharge further upstream that doesn’t directly get into waters of the U.S. but indirectly gets into waters of the U.S., and that 

is our view as well. 

We recognize in one of the important aspects of this whole challenge for us in implementation of the Rapanos guidance and considering additional guidance under other sections of the Act is 

working closely with our State partners to see what their experiences are, if there are in fact impacts on non-404 programs. 

Mr. OBERSTAR. Yes, very good. You did a good job of threading 

your way through the complexities here, but if I were a State regulator, if I were a contractor or a builder or an advocate for an environmental organization, I would find it very difficult to try to understand. Are we dealing with the mind of Scalia? Are we dealing 

with the mind of Kennedy? Are we dealing with neither? 

We spent two years holding the hearings, crafting the language, 

ten months in House-Senate conference, writing what we thought 

was very clear, very specific. Then, 30 years later, the Court is confused about its interpretation of the bill, and now we are confused 

about what the Court means. 

So I am trying to bring some clarity back to it. You have helped 

with your explanations. 

Further, you have the loosely described Kennedy test and the 

Scalia test. Kennedy discussed traditional navigable waters, and 

Scalia addresses continuously flowing or permanent waters. 

44 

Mr. Cruden, is there a distinction or a difference or is there a 

difference without a distinction? 

Mr. CRUDEN. No. There is clearly a difference. As you rightly 

point out, that is the opinion’s wording, that there be continuous 

flowing waters. Yet, there are footnotes in the Scalia opinion that 

elaborate those words, where he makes it clear that seasonal flow 

may well be included in his definition of continuous flowing. 

So when we are applying Rapanos—and I told you that our position is we could meet the jurisdictional standard by either one—we 

have to apply not only his text but his footnotes as well. So that 

complicates our job of trying to explain to courts what we think the 

correct standard is when we are trying to establish and protect 

wetlands. 

Mr. OBERSTAR. Secretary Woodley, do you concur in that view 

about these two differing assessments by the two judges? 

Mr. WOODLEY. Yes, sir. I think that almost any navigable water 

is either subject to the ebb and flow of tide or continuously flowing, 

but there are many continuously flowing waters that we would not 

consider to be navigable. 

But we certainly expect to take jurisdiction over all of them if 

they are tributary, as they almost always are, to a navigable water 

downstream. 

Mr. OBERSTAR. If you take the Scalia theory or approach of indirect discharges, which Mr. Cruden described just a moment ago, do 

rivers and streams then become conveyances under the Clean 

Water Act? 

Mr. CRUDEN. There is a portion of the opinion by Justice Scalia 

that suggests that as a plausible argument. We have not had to 

make that argument because we have been able to establish that 

the pollutant ultimately found its way into a jurisdictional water. 

But you are absolutely right, Mr. Chairman. That is one of the 

things that Justice Scalia suggests might be an avenue to distinguish a Section 402 action from a Section 404 action. 

Mr. OBERSTAR. Well, we certainly could pursue that further and 

try to understand who then is the permit holder, but I think for 

the purposes of this panel and for the purposes of revision of the 

introduced bill, I think we have an understanding. 

First of all, the Court did not describe the Clean Water Act as 

unconstitutional, though in your analysis it leaves open a question 

yet to be determined perhaps that could be raised by someone else. 

We need to further understand Mr. Grumbles’ activities in referenced in the language in the bill and its application to or inclusion of certain specific provisions in current EPA-Corps regulations. 

Third, your understanding—yours, Mr. Grumbles, yours, Secretary Woodley—of what would be the effect of and how appropriately we could word leaving the term, navigable waters, where 

it is exists now in the Clean Water Act, in the existing statute, but 

referencing prior EPA-Corps regulations that are prior to the Supreme Court, so we don’t leave a lot of misunderstandings. We 

want to continue prior existing practices, how we could do that. 

Then, fourth, your assessment or guidance on language to include prior converted cropland, which is not included in any reference in the Clean Water Act but has come up in regulations, and 

45 

how we could include that term with clarity and with reference to 

regulatory practice in a revised bill. 

Correct? 

And, we can count on your combined legislative counsel, not as 

a statement of Administration position but as a response to the 

clarifying questions. 

Mr. WOODLEY. Yes, sir. 

Mr. OBERSTAR. Thank you. 

Mr. Hall. 

Mr. HALL. Thank you, Mr. Chairman, and thank you to our witnesses for your patience among other witnesses and your expertise. 

I have a strong farming presence in my district, and concerns 

have been expressed to me about reaction to the Supreme Court 

rulings and the future of clean water regulation under the CWRA. 

It is my understanding that the savings clause contained in the 

bill would ensure that agricultural activities will be treated exactly 

as they were before the Supreme Court’s ruling. I would ask you, 

is that your understanding? 

This will be for everybody. Using my friend, Mr. Boozman’s term, 

the plural of y’all, having spent some time in Nashville, all y’all 

being asked this question. 

Is it your understanding that the treatment of agricultural activities will be the same as before the ruling, would any retroactive 

permits be necessary for previously unregulated activities, and 

could you comment on your view of the impact of this legislation 

on the regulation of activities like the maintenance of diversion 

ditches, grass waterways, temporary wet spots and existing NRCS 

conservation programs? 

Mr. Cruden, you would like to start? 

Mr. CRUDEN. I am probably not the right one to address the various issues associated with the current legislation. So I will actually pass that to Mr. Grumbles. 

Mr. GRUMBLES. I will, with Arlen Lancaster and John Paul, if he 

wants. 

We have had a lot of discussion in the hearing about potential 

impacts on agricultural activities particularly with the bill in its 

current form. 

I think the prior converted cropland exemption is one of the key 

issues that the bill may raise. It is not addressed in the bill. What 

I have heard the Chairman say is that they want to work with us 

further to recognize that there is an existing regulation that does 

exempt prior converted cropland from 404. By not mentioning it in 

the bill, it raises a question of whether or not it would be overtaken, overturned by the bill, superseded. 

The other key one, Congressman, is the use of the word, activities, rather than the more specific term, discharge of pollutant or 

dredge or fill material. By saying it is activities affecting waters 

that trigger the need for a permit, that could bring in certain agricultural activities that hadn’t previously. 

Mr. HALL. Practices. 

Mr. GRUMBLES. Practices that had not previously been. 

Now, in the saving clause, there are references to 404(f) and the 

exemptions for silvicultural and agricultural normal farming which 

are intended to preserve those actions. So I think from an EPA 

46 

standpoint, in looking at the jurisdictional scope of the bill and potential impacts, I think we still have some question and we would 

need to work on clarifying that. 

Then you raise the issue of retroactivity, and I think that is a 

good question to raise for further discussion in the Committee. 

EPA, with our colleagues, stand ready, willing and able to work 

with the Committee to try to clarify or address those concerns 

about agricultural activities that might be pulled in or, in some 

way, adversely affected by the bill in its current form. 

Mr. HALL. Allow me, unless you are dying to add to that, since 

I only have a little bit of time left, to ask Secretary Woodley, which 

specific categories of water bodies would H.R. 2421 encompass that 

had never been regulated before under the Clean Water Act and 

where specifically do you see those categories identified? 

Mr. WOODLEY. I think that the most obvious examples of that, 

Congressman, are the playa lakes and prairie potholes which are 

extremely interesting and very significant wetland or aquatic resources and which have a great value as wetlands habitat and for 

other purposes. 

But their characteristic is that they are unconnected to other 

water bodies by surface flow. They are connected to each other and 

to other water bodies by groundwater flow typically. And so, in 

times of drought, they will go way down and then they will pop 

back up as the groundwater. But they never typically fill up to 

such a degree that they overflow and form a channel that then can 

be linked downstream to a navigable water course. 

That is more an issue related to the jurisdiction determination 

in the SWANCC case than it is related to the more recent Rapanos 

and Carabell cases. 

Mr. HALL. Thank you, Mr. Woodley. 

My time is expired but, Mr. Chairman, I just wanted to comment 

that we have in my district a number of superfund sites, and some 

of them happen to be either on or adjacent to wetlands. So we are 

very concerned about this Solomonic decision that we are trying to 

make about exactly how you define where the protection extends 

to because, sooner or later, it all winds up downstream. 

I yield back. Thank you. 

Mr. OBERSTAR. I thank the gentleman. 

The gentleman from Tennessee, Mr. Duncan, former Chair of the 

Water Resources Subcommittee. 

Mr. DUNCAN. Thank you very much, Mr. Chairman. 

I am not going to ask any questions, but I would like to make 

a few comments. First of all, I know we need to get on to the other 

panels, but the Congress has done great things in regard to the environment over the last 40 or 45 years. Chairman Oberstar has 

been a leader on most of those pieces of environmental legislation 

because most of them have come in whole or in part through this 

Committee, and I think we should be very proud of that. 

Mr. Grumbles said a few minutes ago or earlier today that in 

some of his recent work over the last few months in regard to the 

SWANCC and Rapanos decisions, that some of the regulated community thought he had gone too far and some of the environmental 

community didn’t think he was going far enough. I don’t know anyVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
47 

body on either side who has worked with Mr. Grumbles, who 

doesn’t have great respect for his knowledge in this area. 

I am sure that on some of those earlier pieces of environmental 

legislation, probably it was the same way, that the environmental 

community thought they had never gone far enough, and maybe 

some of the regulated community thought they were going too far. 

It is true, I think, that this Country has done more in regard to 

the environment than any other country in the world really and 

has gone further, and we have cleaner water. I know I have traveled all over Europe and other parts of the world, and we certainly 

have cleaner water than any country I have ever been into. 

But can you do more? Can you do better? Sure, you can always 

try and do more and do better, and you should always try to do 

that. 

On the other hand, we have to try to strike a balance at some 

point because some of the environmental laws in the past have 

really hurt the smallest companies or the little guys in any industry. I remember a few years ago, when I chaired the Water Resources Subcommittee, we had a hearing in regard to wetlands, 

and we had some very small farmers in here who broke down and 

cried because the effect of some of the rulings on them and their 

livelihood. 

I can tell you that one of my grandfathers was a subsistence 

farmer in Tennessee. He had 10 children and an outhouse and not 

much more. So I can tell you my biases and my sympathies are 

with the little guys, and I have been told that this legislation could 

have a very harmful effect on some of the smallest farmers and 

some of the smallest operators in this area. 

So I think what we need to try to do is reach some type of balance to make sure that we are not just helping the big giants that 

are affected by all of this. 

I read part of the Rapanos decision in which the judge in that 

case said: ‘‘I don’t know if it is just a coincidence that I just sentenced Mr. Gonzalez, a person selling dope on the streets of the 

United States. He is an illegal person here. He is not an American 

citizen. He has a prior criminal record. 

So, here, we have a person who comes to the United States and 

commits crimes of selling dope, and the government asks me to put 

him in prison for 10 months; and then we have an American citizen 

who buys land, pays for it with his own money, and he moves some 

sand from one end to the other, and the government wants me to 

give him 63 months in prison.’’ 

The judge said, ‘‘Now if that isn’t our system gone crazy, I don’t 

know what it is, and I am not going to do it.’’ 

Then a few months ago, the Knoxville New Sentinel had a front 

page story in which they said: ‘‘Each month’s KUB bill forces Annie 

Moore to make some tough choices. The 68 year old great grandmother lives on a fixed income from disability payments. She recently received a final notice for the $483.96 she owes KUB for utilities at her East Knoxville home.’’ 

Then it says, ‘‘After seeing their sewer bills more than double in 

the past two years, Moore and other customers are wondering why 

KUB is proposing water and natural gas rate increases. It is making me live like I never lived before, Moore said. So she eats simple 

48 

foods, buys only the most important of her medications, goes without luxuries like coffee.’’ She considers coffee a luxury and so forth. 

I guess what I am getting at in a roundabout, inarticulate way 

is that I think whatever we come up we need to keep people like 

Annie Moore in mind, and we need to keep the subsistence farmers 

in mind because I have noticed over the years that all the environmentalists seem to come from very wealthy or very upper income 

families, and that is good for them. 

But we need to keep the little guys in mind and not just do some 

legislation that is only going to help the big giants and, hopefully, 

we can reach some middle ground approach where we can do that. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. I thank the gentleman for those very thought provoking comments and for his own personal experience. It is always 

defining for all of us. 

I have no further questions. 

Mr. Boozman? 

No further questions from the gentlewoman from Virginia? 

So we will hold this panel in appreciation and dismissed for the 

afternoon. Thank you very much for your splendid contributions. 

Our second panel consists of Professor Mark Squillace, Professor 

William Buzbee—Professor Squillace from the University of Colorado School of Law and Buzbee from Emory Law School in Atlanta—Professor Jonathan Adler of Case Western Reserve University School of Law and Ms. Virginia Albrecht, a Partner in Hunton 

and Williams in Washington, D.C. on behalf of the Waters Advocacy Coalition. 

Oh, and I see that the House has entertained a motion that the 

Committee rise. Well, that is a procedural motion. 

We will begin with Professor Squillace. 

TESTIMONY OF PROFESSOR MARK SQUILLACE, DIRECTOR, 

NATURAL RESOURCES LAW CENTER, UNIVERSITY OF COLORADO SCHOOL OF LAW; PROFESSOR WILLIAM W. BUZBEE, 

DIRECTOR, ENVIRONMENTAL AND NATURAL RESOURCES 

LAW PROGRAM, EMORY LAW SCHOOL; PROFESSOR JONATHAN H. ADLER, DIRECTOR, CENTER FOR BUSINESS LAW 

AND REGULATION, CASE WESTERN RESERVE UNIVERSITY 

SCHOOL OF LAW; AND VIRGINIA S. ALBRECHT, PARTNER, 

HUNTON AND WILLIAMS, LLP ON BEHALF OF THE WATERS 

ADVOCACY COALITION 

Mr. SQUILLACE. Thanks, Mr. Chairman and Members of the 

Committee. 

My name is Mark Squillace. I am Professor of Law at the University of Colorado Law School and Director of the Natural Resources Law Center there. 

I am very happy to appear today before this Committee to offer 

my support for the Clean Water Restoration Act of 2007. I share 

the Chairman’s view of this legislation, that it does nothing more 

than restore Congress’ intent when it adopted the Federal Water 

Pollution Control Act of 1972. 

I want to take a moment to just briefly address this issue that 

has been coming up regarding navigability and whether we should 

preserve this phrase, navigable waters, in the current legislation. 

49 

I think the heart, really, of the proposed legislation is the removal 

of that phrase, and the reason is it has always been a square peg 

trying to fit in this round hole of the Clean Water Act. 

The phrase, navigable waters, came from the old 1899 Rivers and 

Harbors Act, particularly Section 13 of that law which was known 

as the Refuse Act, and that statute used the phrase, navigable waters. This is part of sort of the history of how we got this phrase 

into the law. 

But when Congress adopted the Clean Water Act in 1972, it 

never intended that navigable waters should be the basis upon 

which jurisdiction was limited. In fact, the statute makes clear it 

was designed to protect the physical, biological and chemical integrity of all of our Nation’s waters. And so, the idea that somehow 

we should be limited to navigable waters in a traditional kind of 

sense, I think is just wrong. 

One of the great ironies, I think, of what has happened as a result of the Rapanos decision is that the Clean Water Act is now arguably narrower in scope than the old Rivers and Harbors Act 

itself because the Rivers and Harbors Act in Section 13 specifically 

adds the phrase, and their tributaries, to the phrase, navigable waters. We, of course, don’t have that in the Clean Water Act. 

I think it is unfortunate that there is this impression that somehow we can keep the phrase, navigable waters, and still accomplish 

the goals that Congress intended way back in 1972. 

I want to get into some of the more particular issues regarding 

the legislation and my concerns about the legislation, and I think 

there is a lot of reason to be concerned about protecting our clean 

waters. 

We have talked a little bit about wetlands today. It is true that 

we have made some strides, although we might argue about how 

much we have improved our situation with wetlands, but it is fair 

to say that we have lost more than half of our wetlands since we 

settled this Country. Yet, the 5 percent of the land base that now 

remains as wetlands is the sole home for one-third or more of our 

endangered species and it comprises, it includes more than 31 percent of our plant species throughout the lower 48 of the United 

States. 

We have also made good progress on our Nation’s waterways in 

the past 36 years, but there is a long way still to go. Indeed, 40 

percent of our waterways still fail to meet State-established water 

quality standards for those waters. 

So where do we go from here? How do we improve the current 

situation? 

Unfortunately, I think that the Supreme Court’s recent decisions 

in the two cases that have been much discussed today have exacerbated the problems that already exist with protecting our clean 

water. These decisions have forced agencies into these complex ad 

hoc, site-specific judgments about whether certain waters have a 

significant nexus with traditional navigable waters. 

It is my belief that the implication of this obligation seriously 

compromises our government’s ability to protect our Nation’s waters, and we can only fix this problem through legislation. 

We have already heard, at some length, two of the principal objections that have been raised to this legislation. One is the claim 

50 

that the proposed legislation usurps State and local authority. A 

second is that the proposed legislation expands the scope of Federal 

authority far beyond what Congress originally intended. 

I would like to briefly address both of those issues and, if time 

permits, to suggest a couple of places for improving the law. 

First, regarding the proper role of State and Federal Governments, it is worth noting here we are dealing with water, and we 

all recall from high school science class that water exists in a unitary hydrologic cycle. Trying to draw lines between that which 

should be regulated by the Federal Government and that which 

should be regulated by the States and local governments will necessarily be arbitrary, and it thus should be no surprise to us that 

the Supreme Court’s recent decisions have led to a state of regulatory chaos. 

The Corps is now issuing more than 100,000 time-consuming, 

often complex and difficult jurisdictional determinations each year. 

As we have already heard from Mr. Cruden, the number of cases 

that the Justice Department is seeing, contesting these jurisdictional determinations is increasing at a fairly high rate. 

Think of the resources we are spending, drawing lines that might 

otherwise be spent protecting our Nation’s waters. 

Of course, if the Federal Government really lacked jurisdiction or 

constitutional authority to engage in this practice or if the States 

were clamoring to preempt Federal authority in this area, perhaps 

this issue would have more resonance. But Congress plainly does 

have constitutional authority under the Commerce Clause and the 

Treaty Clause and perhaps some other authorities, and the only 

clamoring I am hearing from the States is their enthusiasm for 

broad Federal regulation. 

For me, one of the most telling facts about the Rapanos decision 

was the fact that 34 States and the District of Columbia signed an 

amicus brief supporting broad Federal jurisdiction in that case. 

That hardly sounds like a situation where the States are asking for 

more regulatory power. 

The other concern that we have heard about is the fact that the 

Clean Water Act does more than restore but really expands the 

scope of the regulatory power under the law. I know that the proposed legislation has raised some special concerns for some of the 

people in the western States who believe that it may interfere with 

the States’ authority to regulate water rights, and I would like a 

moment, if I can, to try to address that issue. 

Mr. OBERSTAR. I would like you to summarize it because we are 

running short. 

Mr. SQUILLACE. Okay, I will try to do that. 

The bottom line here is that the statute preserves in its language, the Wallop Amendment protecting States’ rights. It preserves the specific exemptions from Section 404 for the construction 

and maintenance of stock ponds and irrigation ditches and for normal farming and ranching activities and, under Section 2, for discharges comprised entirely of agricultural return flows. 

If I could make just one more point, Mr. Chairman, and it concerns my State of Colorado and some of the issues that are raised 

with regard to navigability there. We have talked a lot about the 

problem of navigability here, and it is not well known that there 

51 

is a 1913 decision from the Colorado Supreme Court that essentially finds that there are no navigable waters in the State of Colorado. 

That may sound surprising, but there is a 1979 case, not so long 

ago, where the Supreme Court of Colorado held that the Colorado 

River itself is not a navigable water, and I think it won’t be long 

before someone, at least, decides to challenge the authority to even 

regulate under the Clean Water Act in the State of Colorado. 

Thank you very much, Mr. Chairman. 

Mr. OBERSTAR. Thank you, Professor Squillace. 

I see we have six minutes remaining on this vote. I think, since 

there is only one vote, we should break at this point and come back 

promptly, forthwith. 

[Recess.] 

Mr. BAIRD. [Presiding.] The Committee will reconvene. 

We apologize for the interruption, and the situation is that we 

expect another series of votes in a little bit. But so that we can continue with the testimony, I know some of you have flights to catch. 

We apologize for the duration of this proceeding, and we are grateful for your indulgence. 

I think we left off with Mr. Buzbee about to speak. 

Mr. Buzbee, thank you. We look forward to your comments. 

Mr. BUZBEE. Thank you very much, Mr. Chairman and Members 

of the Committee. 

I am Bill Buzbee. I am a Professor of Law at Emory Law School 

in Atlanta. There, I direct the Environmental and Natural Resources Law Program. 

I have been involved with issues concerning what are protected 

waters of the United States for several years, first representing a 

bipartisan group of EPA administrators before the Supreme Court 

in Rapanos in an amicus brief, and I have testified in two previous 

rounds of Senate hearings involving this issue. 

I am going to make three basic points. The first is that the Restoration Act is necessary in light of weakening of the Clean Water 

Act by the Supreme Court in SWANCC and Rapanos. 

Mr. Chairman, my clock is not working, in any event. 

Mr. BAIRD. Then your time is now up. 

[Laughter.] 

Mr. BUZBEE. Thank you so much. I am glad I traveled here. 

As I was saying, there are three main points I am making. The 

first is that the Restoration Act is necessary in light of weakening 

of the Clean Water Act by the Supreme Court in SWANCC and 

Rapanos. The second is the Restoration Act is a sound, limited, focused amendment restoring the reach of the law. Then, third, I 

want to address some of the criticisms and questions about the 

reach of the restoration act raised today and in testimony submitted for today. 

So, first, regarding the weakening of the Clean Water Act, I 

would say the current situation is not acceptable. I think every witness agrees the Clean Water Act has been a resounding success, 

but that doesn’t mean it can remain unchanged. 

It has been substantially weakened by the Supreme Court. The 

Supreme Court, in SWANCC and Rapanos, unsettled a bipartisan, 

three decade, broadly protective view about what counts as waters. 

52 

Now the decisions and the responsive guidance have undercut the 

Act in three ways: 

It has undercut this broad, shared view about what counts as 

waters and removed many waters from protection, especially after 

the SWANCC case. 

As the previous panel said, it has fostered a confusing regulatory 

and jurisprudential mess with splintered judicial approaches, regulatory interpretative uncertainty, delay, regulatory inattention and 

inertia—a wonderful situation. 

The cases substituted judicial views of policy that really 

downplayed or ignored the Clean Water Act’s integrity goals, disregarded previous Supreme Court precedents and, especially important, they eliminated longstanding deference given to agencies in 

this area. 

Very important, as the Chair said shortly before the break, the 

weakening of the Clean Water Act here is not just about Section 

404 and wetlands as some people seem to imply in their focus. The 

provision about what counts as waters of the United States is the 

jurisdictional hook for the whole statute, including the industrial 

pollution discharge permits and oil spill provisions. Anyone looking 

at the reach of the statute has to think about this repercussion of 

these cases. 

So there are four options: 

One is to do nothing. I don’t think that is an option. There are 

real harms happening. I was happy to hear a consensus that there 

is a need to do something here today. 

A second is just allow litigation to work it out. I don’t think that 

is going very well. 

Another is to implore regulators to fix the mess. That would be 

the third option. Because the Supreme Court’s rulings are direct 

Clean Water Act constructions, I think there is greatly reduced 

latitude for a regulatory cure. 

Then last is to pass a curative piece of legislation. So, let me turn 

to that. 

It is hard to imagine a more limited and focused corrective piece 

of legislation. What it does is it takes a key interpretative regulatory definition and makes it part of the statute, and that is all 

it does. It is very focused. 

It makes clear the statutory intent to reach water within Federal 

constitutional powers. This is important because concern about the 

intended reach of the statute has driven some of the Supreme 

Court’s limiting constructions. 

It is also very important because it does not monkey with other 

provisions. Its very focused aspect is part of the beauty of it. 

Then, lastly, in the findings, it has sound factual and scientific 

findings that are clearly well based and important to consider. 

Today, there has been some confusion about this language of activities which is in that key definitional clause. Let me turn to that 

for a moment. The language of 404, Subsection 24, lists off. It enumerates the sorts of waters that are protected by name and then 

it says, ‘‘to the fullest extent that these waters or activities affecting these waters are subject to the legislative power of Congress 

under the Constitution.’’ 

53 

What this provision does, this is kind of a jurisdictional sweepup provision that says these sorts of waters are protected if they 

are within Federal constitutional power or activities affecting them 

are. It is not separately creating a category of activities that is subject to regulation. 

Only if the enumerated waters are implicated are they reached. 

Then you have to turn to the separated operative provisions of the 

Clean Water Act, and only then if you have a point source discharge under Section 301 and it doesn’t fall within the nationwide 

or other sources of flexibility does the Federal Government have jurisdiction. So I think people have misunderstood and looked at that 

word in isolation instead of in context. 

Second, as Professor Squillace said, leaving in this ‘‘navigable 

waters’’ language would completely undercut the entire purpose of 

this bill. The Supreme Court has twice, in very important and recent cases, fastened upon that word and used that word in part to 

drive the limiting constructions of the Act. If you leave that word 

in, I think this bill will basically do little or nothing, and that 

would be a mistake. 

Now, let me address a few criticisms in my few remaining seconds. One, is this limitless Federal power, as several people have 

said? The answer is no. It is all linked to these enumerated waters. 

It is not unprecedented. The sorts of waters protected have been 

in the regulations for three decades. 

Second, does it reach every conceivable sort of colorable waters 

such as ditches, drains and bird baths? The answer is clearly not. 

They are not listed there. I looked very hard. Okay. 

Is groundwater reached? No. They are not among the enumerated waters. The Clean Water Act can reach groundwater through 

some other provisions as Mr. Grumbles stated in the previous 

panel. I don’t see these particular language choices as upsetting 

that particular statutory balance. 

Lastly, is this constitutional? Is the language about legislating to 

the limit of constitutional power appropriate or, in any way, itself 

a constitutional problem, as some commentors suggested? On that 

front, I would say definitely not. You all have to legislate against 

the background of what the Supreme Court has done, and the Supreme Court has read the statute not to reach to the limit of Federal constitutional power. If you want to reach that far, you need 

to state so or the Supreme Court and lower courts will find it to 

be inadequate. 

Then, lastly, there is this kind of theory that this law would 

crowd out, and then I will stop—this is truly my last point—would 

crowd out or undo the federalism balance in the Act, and it does 

no such thing. All of the cooperative federalism provisions remain 

in the Act. All of the savings clauses remain in the Act. There is 

nothing in this law that does more than take the regulatory provision regarding protected waters and make it statutory. 

Thank you. 

Mr. BAIRD. Thank you, Professor Buzbee. 

Professor Adler. 

Mr. ADLER. Thank you, Mr. Chairman and Members of this Committee. It is certainly a pleasure to be here today, and I appreciate 

54 

the opportunity to present my views on the Clean Water Restoration Act to this Committee. 

My name is Jonathan Adler. I teach environmental, administrative and constitutional law at Case Western Reserve University. 

Case Western is in Cleveland. 

Earlier this morning, it was mentioned that the Cuyahoga River 

no longer burns and that this is a tribute to the Clean Water Act. 

I should just note, being that I live in the Cleveland area now, the 

Cuyahoga River is not the only industrialized river in the United 

States that burned. In fact, rivers in the United States used to 

burn quite a lot in the late 19th and early 20th Century, and that 

problem was largely dealt with and solved well before the Clean 

Water Act was adopted. Being from Cleveland, I feel I just need to 

point that out. 

On the Clean Water Restoration Act, I just want to make three 

brief points: 

First, this bill asserts authority well beyond the regulatory authority that was understood and applied under the Clean Water 

Act originally. 

Second, the bill will do nothing to reduce regulatory uncertainty—uncertainty that, I should note, predates SWANCC and 

Rapanos—and in fact, this bill may increase regulatory uncertainty. 

Third, this bill will do little, if anything, to improve Federal environmental protection or encourage a meaningful Federal-State 

partnership. 

As written, the Clean Water Restoration Act would assert authority over all bodies of water and wetlands irrespective of any 

connection to navigable waters. 

Some of my colleagues on this panel may think that the definitions of ‘‘all interstate and intrastate waters and their tributaries’’ 

and ‘‘all impoundments of the foregoing’’ are self-evident and necessarily limited. I don’t share that confidence. Without a rulemaking by the agencies implementing this language, it could certainly be interpreted quite expansively by courts. 

This would be the first time that a Federal statute would assert 

authority without any reference to the Federal Government’s historic interest in navigability and interstate waters, and I think that 

adoption of this law could provoke conflict and backlash in this 

area not seen since the 1989 revisions to the Federal Wetland Delineation Manual, the action that is often credited with sparking 

the rise of the property rights movement. 

The uncertainty in the scope of Federal jurisdiction over waters 

and wetlands did not begin with SWANCC and Rapanos. Specifically under Section 404, there has been uncertainty and conflict in 

litigation since the Clean Water Act was enacted. In fact, the Army 

Corps of Engineers and the EPA disagreed on the scope of the 

Clean Water Act initially, and it took litigation in Federal District 

Court to resolve that dispute. There has been litigation and uncertainty ever since. 

As I noted before, in the 1980s and 1990s, several different agencies had varying and competing delineation manuals as to what 

constituted a wetland. The General Accounting Office issued several reports during that period, noting that different agencies had 

55 

different definitions of what constituted a wetland. Even within the 

Corps of Engineers, there could be differences about what would 

constitute a wetland or what could be subject to Federal regulation. 

In 1989, the Tabb Lakes decision invalidated the Migratory Bird 

Rule and held it couldn’t be used in the Fourth Circuit. So, at least 

in the Fourth Circuit, the scope of Federal jurisdiction that was determined in SWANCC had already been the law because of that 

court’s decision. 

The claim that this legislation asserts jurisdiction to the limits 

of constitutional authority doesn’t provide certainty, and it doesn’t 

answer the question of the scope of Federal authority. In fact, it 

asks the question because to say the Federal Government is going 

to regulate to the limits of its constitutional authority still leaves 

open the question of how broad the Federal Government’s constitutional authority is. The Supreme Court hasn’t answered that question. 

What it has said in both the SWANCC and the Rapanos decisions is that there is a limit to Federal regulatory jurisdiction and 

that the Clean Water Act, if read more broadly than the Court interpreted, could reach those limits and could raise constitutional 

difficulties. 

The Court was explicit about this in the SWANCC decision and, 

in both the Scalia and Kennedy opinions in Rapanos, the Court 

was explicit about this again: that to read the Clean Water Act to 

reach beyond those waters that have a significant nexus to navigable waterways is to raise difficult constitutional questions. To 

pass a bill that reaches those limits is to force agencies and courts 

to spend years figuring out precisely what those limits are. 

The problem of site-specific and case by case jurisdiction determinations which the agencies now struggle with can be addressed 

through rulemaking. In fact, we have known since the Lopez decision in 1995 that the Corps of Engineers’ and EPA’s regulations 

had federalism difficulties. Many commentators noted that at the 

time. We have known that before the SWANCC decision they had 

difficulties. 

The agencies have refused to issue new rules and refused to have 

new rulemakings that could resolve this. In the Rapanos decision, 

three justices specifically called upon the agencies to go through a 

rulemaking process so as to resolve this ambiguity. 

I should just lastly note that if the goal is to enhance the protection of waters and wetlands, what the Federal Government should 

be doing is not trying to cast as broad a net as possible, to rope 

in and assert jurisdiction over all the lands and waters it possibly 

can. Rather it should focus limited agency resources on those areas 

that the Federal Government, as the Federal Government, can do 

the most good. 

The reality is the EPA and Corps of Engineers do not have unlimited budgets. They do not have unlimited man hours. We have 

a choice of either telling them they can regulate many things without providing them with priorities, without giving them a guide to 

where they should be focusing their resources, or we can target 

their efforts and focus on those water resources and those resources 

related to waters where the Federal Government has a distinct inVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
56 

terest that States and local governments are not capable of addressing. 

The question is not do States want to regulate more but whether 

or not they would and are capable if the Federal Government focused on those things where the Federal Government has the 

greatest interest. I think that is the direction that both the agencies and this Committee should look if it wants to improve the 

quality of environmental protection under the Clean Water Act. 

Thank you. 

Mr. BAIRD. Thank you, Professor Adler. 

Ms. Albrecht. 

Ms. ALBRECHT. Thank you for the opportunity to testify today. 

My name is Virginia Albrecht. I am a partner at Hunton and 

Williams here in Washington and really have spent about the last 

25 years of my professional life thinking about the Clean Water 

Act, getting permits all over the Country. 

Today, I am here representing the Waters Advocacy Coalition 

which is a very large group of public and private organizations who 

have gotten together over the last 15 months in response to H.R. 

2421 and who have shared concerns, many of which have been 

raised and I think quite well developed in the earlier phases of this 

hearing. We are very glad to be here today and also to hear the 

Chairman say that he is interested in hearing some comments and 

options for this legislation. 

I wanted to make four points today about the bill. The first, of 

course, is that it doesn’t merely restore the previous Clean Water 

Act, but it does in fact expand, and I think that has been very well 

developed earlier. 

The one point I would like to make in addition is that the use 

of the term, navigable waters, as Mr. Woodley pointed out and I 

think the government was pointing out, was that use of that term 

is really an expression by Congress that there are some waters that 

are Federal and some waters that are State. It is a recognition that 

we need to draw a line. 

If you don’t use the term, navigable waters, you are going to 

have to have something else in the legislation that will clearly be 

a base line for saying what is Federal and what isn’t Federal, unless the purpose of the legislation is to say everything is Federal. 

We would think that that would be a big problem if the Clean 

Water Act were changed to eliminate the idea of any State waters. 

So that is one point. 

The second point is, just to make it clear, it is not true that the 

Clean Water Restoration Act is merely a repeat of the existing regulations under the Clean Water Act. We have this little side by 

side comparison up there, and you can see when you look. Actually, 

I don’t know if you can read that. It is a little far away. 

On the left side is H.R. 2421 and on the right side are the Corps’ 

and EPA’s existing regulations, and there are some very, very significant differences here. One is the indication of trying to regulate 

all intrastate waters. The other is the regulation of activities and, 

whatever that means, it is ambiguous and it will invite litigation. 

When litigation comes, the language of this statute will matter. 

In a careful reading of the way this bill is written right now, it says 

they are going to regulate all intrastate waters. Courts will look at 

57 

that and say, all means all, just like daily meant daily for total 

maximum daily loads. 

It will be very, very hard, in the face of a statute that regulates 

all intrastate waters, for the agencies to create any exemptions or 

for the courts to recognize something less than every water. 

As Professor Adler pointed out, that gives rise to the question: 

What are the waters? What is a water body? All those questions 

are out there. 

Then three, thinking about returning, and I wanted to make the 

point that we are talking about returning to a time when jurisdiction was certain and the permitting program ran in a smooth and 

functional way. As one who has been very actively involved in this 

permitting program really since the early eighties, I can tell you for 

sure that there never really has been a time when it was clear and 

concise. 

In 1993, working with another colleague who had actually recently retired from the Corps of Engineers, I did a year-long FOIA 

study of all 38 Corps districts and how long it took to get through 

the permit process. In 1993, which is 15 years ago, it took about 

a year for the average permit to get through the process. We also 

found in 1993 that half the permits applications that were submitted were withdrawn before a decision was made. 

I think that is still happening today, but the point is that in 

1993, that period of time in which we did the study, what we found 

was a permitting process that was already broken. So there isn’t 

a pre-SWANCC nirvana to return to is the basic point. 

If what is happening now is that there is some concern about 

some features not being regulated, I think the point would be to 

identify the features that are of concern and then think about what 

protections are out there and what could be done for those features. 

But we haven’t really understood that so far, and so it has been 

kind of difficult to come to grips with that. 

We are very glad to be here today, and we would be happy to 

take questions. 

Mr. BAIRD. I thank our witnesses. 

The situation is we are now about six minutes from a vote, so 

we will have to go to that. There are two votes, I understand, following this. We would expect, hopefully, to be back in about 20 

minutes at the earliest, more likely 25 minutes, I would guess. 

Those on the panel might not want to run away too far, but the 

rest of you can probably count on we probably won’t likely reconvene sooner than 20 to 25 minutes. 

It is my understand that the Chair, Chairman Oberstar, intends 

to convene the third paneling after questioning of this panel. The 

questioning of this panel could easily take a half hour or so, I 

would wager. 

So we appreciate your indulgence, as those of you who are trying 

to plan flights. For what it is worth, we go through this every week 

ourselves. It is no consolation to you, but we will be back in about, 

hopefully, 15 to 25 minutes, somewhere in there. 

[Recess.] 

Mr. OBERSTAR. [Presiding.] The Committee will resume its sitting, with apologies again to witnesses and participants for the repeated interventions on the House Floor, but that is part of the legVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
58 

islative process, and with great appreciation to Mr. Larsen and 

Mrs. Drake for sitting in while the last votes were underway and 

I was caught up with other things. 

Oh, and Mr. Baird also was here. So I greatly appreciate it. 

I would like to ask this panel a question I asked the previous 

panel. What would be the legal implications of leaving the word 

‘‘navigable’’ associated with waters, in the various places it appears 

in the body of the existing Clean Water Act but attaching to it, fixing to it reference to pre-SWANCC and Rapanos practice, that is, 

the administrative regulations issued? 

Mr. SQUILLACE. I will try that one, Mr. Chairman. 

My sense is that if you leave the phrase, navigable waters, in the 

statute, that it is an invitation for additional litigation over the 

issues. 

Justice Kennedy’s concurring opinion in particular in the 

Rapanos case, I think suggests that he is not willing to read out 

the word, navigable, from the statute. If you use the word, navigable, or you use the phrase, navigable waters, he wants to give 

it some meaning and he wants to give it a traditional kind of 

meaning. 

As I testified earlier, it is just my sense that that is not what 

the statute is about. I think that if we are going to be honest about 

what we are trying to accomplish with the Clean Water Act, it is 

not anything to do with navigation. So my strong preference would 

be to see this phrase eliminated from the statute. 

Mr. OBERSTAR. Thank you. 

Professor Buzbee? 

Mr. BUZBEE. Yes, thank you. 

I would concur. As I said earlier in my brief, very quick remarks, 

the Supreme Court has twice focused on the word, navigable, and 

given it a separate content, and that has partly shaped the decisions that have limited the reach of the Clean Water Act. I think 

that the Supreme Court looks at legislation and judicial opinions 

as an interactive process. If you all come back with a new piece of 

legislation that retains the word, navigable, I think they will read 

that as a well-advised decision to retain navigable as a limitation 

on jurisdiction. 

It also important what the Restoration Act does is takes the regulatory definition. There has long been that legislative history 

about the intent to legislate to the limit—I think the exact language by Representative Dingell, I won’t quote—but to legislate 

broadly, and that wasn’t enough already for the Supreme Court. So 

even if you try to do it now in effect but leave in the word, navigable, I think it will largely undercut the reason for this very statute. 

Mr. OBERSTAR. Ms. Albrecht? 

Ms. ALBRECHT. Yes, I think the word, navigable waters, can have 

an extremely broad meaning as we have seen over the years. And 

so, you can use the word and go back to the word, navigable waters, and still get very, very, very broad jurisdiction. 

Mr. OBERSTAR. But if we tie with it, you are not forgetting the 

second point I made. 

Ms. ALBRECHT. Right. Yes. 

59 

Mr. OBERSTAR. Tying with it the preexisting regulation or regulatory scheme. 

Ms. ALBRECHT. Right, and I think that second question about 

preexisting regulatory scheme, I think I would have to know more 

about exactly what it was that you are talking about because there 

is some ambiguity there. 

But I think that the use of the term, navigable waters, is a way 

to express that there are some waters that are Federal and there 

are some waters that are State. It gives heft to the idea of cooperative federalism and that the role of the States in managing their 

land and water resources is important, and we are not going to 

override that. 

Mr. OBERSTAR. You think that the two separate Court opinions 

were making that distinction, drawing a distinction between the 

extent of Federal jurisdiction and the extent of State jurisdiction? 

Ms. ALBRECHT. I think that they were recognizing that there was 

a place for the States and that when Congress passed the Clean 

Water Act, that it was building on the idea that the States have 

a very, very important role, and they were trying to give effect to 

that. So the phrase, navigable waters, is an expression of Congress’ 

recognition of that important role. 

I think that if you keep the phrase and you still say we are trying to go broadly, you would have a lot of possibility of getting 

there, what you are trying to get to. 

Mr. OBERSTAR. Mr. Adler? 

Mr. ADLER. Well, I certainly agree that leaving the word, navigable, in the statute would indicate that Congress understood that 

there are some waters that are not Federal waters and that are 

State waters. 

But I think that if the legislation were to try and adopt, either 

by paraphrasing or using direct language, the pre-SWANCC regulations that were on the books, there would still be problems. One 

reason is that certainly the Migratory Bird Rule that was invalidated in SWANCC had already been invalidated in the Fourth Circuit some 20 years earlier, or not 20, some 10 years earlier. 

Mr. OBERSTAR. Was the Court saying that the Migratory Bird 

Rule is not sufficient to establish authority for regulating such waters? 

Mr. ADLER. I think that after the Supreme Court’s Lopez decision 

in 1995, it has been recognized by many commentators that the 

regulations on the books, in particular, Section A(3) of the EPACorps regulations were problematic because they asserted authority over waters and wetlands in excess of the sort of authority discussed in Lopez. 

Mr. OBERSTAR. Had the term, Migratory Bird Act or Rule, been 

left out of the regulation, would the Court have come to a different 

conclusion? 

Mr. ADLER. In SWANCC, I don’t think so. I think in both 

SWANCC and Rapanos, the Court recognized that Federal regulatory jurisdiction is not unlimited and that in the absence of a 

very clear line, either from Congress or from the regulatory agencies, the Court would try and craft one. I think in both SWANCC 

and Rapanos, that is what the Court tried to do. 

60 

I think what the Court signaled in both cases, consistent with its 

prior federalism decisions, is that the one answer that is not acceptable is a regulatory interpretation that asserts authority over 

all waters, Federal and otherwise. 

Mr. OBERSTAR. Can you, Ms. Albrecht, craft bright-line language 

to distinguish between Federal and State jurisdiction? Not here 

Ms. ALBRECHT. I was going to say, here today? 

Mr. OBERSTAR. Not right here, not right here and now. But, yes 

or no, do you think that is possible? 

Ms. ALBRECHT. Yes, I think it might be, but I can’t do it today. 

Mr. OBERSTAR. Well, neither could I. 

Ms. ALBRECHT. I think that the problem with A(3) right now and 

the problem with A(3) since the Lopez decision was that A(3) premises Federal jurisdiction on a potential effect on commerce. What 

the Court really said was potential effect is kind of this limitless, 

boundless kind of idea. 

In fact, in Lopez, what they said was we need an actual, not a 

potential, effect. We need a substantial, not—what was it? 

Mr. ADLER. Substantial effect. 

Ms. ALBRECHT. We need a substantial and actual effect. 

I think if you kind of take those kinds of ideas and you begin to 

think about what you can do under traditional authority over navigable waters, there are ways to do things. I am not quite sure, sitting here today right now, but I would love to have an opportunity 

to think about it. 

Mr. OBERSTAR. Give it some thought. 

Let me ask Professor Squillace and Professor Buzbee the same 

question. Can you make a distinction, if necessary? 

Mr. SQUILLACE. I don’t think one can make a distinction that is 

not simply going to lead to more litigation. I think the problem that 

we have here is that in order to adequately regulate the Nation’s 

waters, we need to have the Federal Government in charge of the 

program. 

We have the States involved in adopting their own permitting 

programs. Most of them have done so under the Section 402 program. Most of them have opted not to do that under the Section 

404 program, but certainly that opportunity is there for them. I 

think only in that way can we avoid what has become almost a 

nightmare of litigation and difficulty in terms of trying to distinguish waters that are supposedly jurisdictional and those that are 

not. 

I think we would be much better off if we just got rid of that distinction and had the resources of the Federal Government and the 

State Governments focusing on protecting our Nation’s waters. 

Mr. BUZBEE. I would agree with those comments. 

I just had a couple points. One is in looking at this and your figuring out your power, I don’t agree with the commentors to my left 

who suggested that Lopez declares Section A(3) unconstitutional. 

I think if you look at the Supreme Court’s decisions from Lopez 

through the Morrison case up to the case of Gonzalez, the Supreme 

Court has made quite clear that this Committee has abundant 

power, as does Congress, to regulate waters that are important to 

commerce, commercial activities that harm waters, and that really 

does cover almost all situations you can imagine, that people just 

61 

tend not to destroy waters of the United States or pollute unless 

they are imbued with commerce. 

Mr. OBERSTAR. Very important distinctions, very important contributions, and I appreciate it. 

Before I go to other Members, I just want to say I would have 

loved to have the opportunity to argue this case before the Supreme Court from my perspective and at least cause the justices 

to read the opening paragraph of the 1972 Act. 

[Laughter.] 

Mr. OBERSTAR. The purpose of this Act is to establish and to 

maintain the chemical, physical and biological integrity of the Nation’s waters. That covers everything in the Act. 

But justices don’t do this. They don’t go to the Committee report. 

They don’t go to the report of conference because justices say, if 

Congress meant what they said here, then they would have written 

it over there in the law. I know. I have been through this for 40 

years. 

Yet, in the Committee report, we were very clear to say with the 

term: Maintaining the term, navigable waters, we intend the 

broadest application of that term, so as to manage by watershed. 

Well, now we have a whole body of regulatory action and court 

cases, and we have to untangle this, as they say in French, pannier 

des crabes. We are thinking our way through it. The translation is 

basket of crabs, but we would say a can of worms. 

[Laughter.] 

Mr. OBERSTAR. Mrs. Drake. 

Mrs. DRAKE. Thank you, Mr. Chairman. 

I would like to thank all four of you for being here and listening 

to your testimony, I think, really encapsulated what we as Members of Congress have been struggling with in the first hearing and 

in the hearing today. Two of you said something exact opposite of 

the other two of you. 

I would like to challenge, Mr. Chairman, that when you are 

working on the line, if the four of you could work on some definitions that maybe we could agree with because we still, underneath 

it all, hear the same argument that we want clarification and we 

don’t want to diminish the Clean Water Act, but we want to have 

that clarification and definitions and not feel like we are taking an 

action that is doing something totally different than what we 

thought. 

I would like to follow up on the testimony with two questions, 

two follow-up questions. 

First, Professor Adler, to follow up on the Lopez case, I wonder 

if you could tell us how that 1995 Supreme Court decision would 

impact jurisdictional decisions in the future if 2421 were enacted. 

Mr. ADLER. Well, I think it would still color the way that Federal 

courts would interpret the scope of the Federal Government’s constitutional authority, and I think that is not only because of the 

Lopez decision itself. It is because SWANCC and Rapanos made 

that clear. 

The SWANCC decision said that it was interpreting the law narrowly because it doesn’t want to declare an act of Congress unconstitutional and to not interpret the law narrowly would have forced 

62 

the Court to look closely at whether or not portions of the Clean 

Water Act were unconstitutional. 

In the Rapanos decision, Justice Kennedy’s concurrence made 

very explicit that he was adopting the approach that the SWANCC 

court adopted and made very explicit again that that approach, in 

his view, was necessary to avoid potentially troubling and constitutionally questionable interpretations of the law. 

So from Lopez through SWANCC and Rapanos, we see the Supreme Court saying consistently that the Federal Government’s authority is very broad, it is very extensive, but it is not unlimited. 

If Federal legislation does not contain language that clearly limits 

the scope of that or the scope of regulatory authority to ensure that 

it stays within constitutional bounds, then the courts may have to 

challenge the constitutionality of the statute. 

What the Court did in SWANCC and Rapanos is it used the word 

‘‘navigable’’ as a way of saying: Okay, this is an indication that 

Congress understood its power was not unlimited, and so we are 

going to use that as the way to understand that there is a limit 

on Federal power. There is a point at which Federal power ends 

and exclusive State power begins. 

That is a principle that I don’t think we can get away from. It 

has been a principle since our Nation’s founding, and it is a principle the Court continues to reaffirm. 

I think this statute, on the lines of the statute, either the statute 

particularly asserts authority over all intrastate waters without defining what that means and is asserting authority beyond the scope 

of Federal jurisdiction, in which case we have lots of legal problems 

and lots of litigation, or it is simply asserting the tautology, that 

it is asserting Federal authority as far as Federal authority goes 

without giving us any idea of where that line is. 

Either way, courts and agencies are going to have to figure that 

out to avoid the sorts of constitutional problems that the Supreme 

Court was trying to avoid in SWANCC and Rapanos. 

To say we are going to regulate as much as we can but not say 

how much that is leaves to other parties to answer that question. 

I think the legislation, as written, does that. So it doesn’t avoid the 

constitutional problem, and it doesn’t provide clarity because it 

doesn’t answer the most important question, which is how far ultimately does the regulation go? 

Mrs. DRAKE. Thank you for that. 

Professor Squillace, it sounded like from your testimony that you 

believe all water should be considered Federal water. What we 

have just heard from Professor Adler, I think, you would disagree 

that we have the authority to go to that. 

Mr. SQUILLACE. Yes. I am glad you raise that question because 

I do want to be clear about this. What we are talking about in this 

new definition is not a regulatory provision. That is we are not 

talking about the Federal Government having regulatory responsibility over all of these waters just because that is what they are. 

What we are talking about is defining the scope of those activities that might be subject to regulation under the other provisions 

of this statute such as 404 and 402. So, for example, if someone is 

discharging dredged or fill material into the waters of the United 

States as newly defined, that would be subject to Federal regulaVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00084 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
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tion. If someone was discharging a pollutant into the waters of the 

United States from a point source, that would be subject to regulation under Section 402 of the Act. 

So I think it is important to recognize that just because the waters are named in the definitional provision, in the provision that 

is in the new definition of waters of the United States, that does 

not translate into broad regulatory power over those provisions, absent some other regulatory standard. 

Mrs. DRAKE. If I could just ask Ms. Albrecht if you could comment on what we just heard and your understanding of that. 

Ms. ALBRECHT. From what I understand, I don’t think I agree 

with it. 

I think if you call something a water of the United States, you 

are saying that it is subject to Federal regulation when certain activities happen in that place. If the outcome of this legislative effort 

were that every single water in the United States was a water of 

the United States, every single water would be subject to Federal 

permitting requirements. 

Now one of the interesting and puzzling questions in the bill as 

it is now written is, as the Clean Water Act now is, it regulates 

discharges of pollutants from point sources to navigable waters, the 

language that you came up with in 1972 which has served us very 

well. 

What this present bill has is the language also about activities 

affecting. Although it is not exactly clear what is meant by this 

language about activities affecting, I think one plausible reading of 

it is that that is an attempt to regulate not only discharges but to 

regulate activities that would affect these waters of the United 

States, which would take you probably or possibly outside the waters of the United States. I mean outside the waters. 

So if you had an activity up here that was affecting a water of 

the United States, the activity up here might be regulated. Just, 

there is some ambiguity here about what is the meaning of that. 

I think that whenever you have new legislation, you are going to 

have to have a rulemaking. The agencies are going to have to figure out what it means. There will be litigation about what do these 

words mean. 

The words that are in H.R. 2421 are very absolute. You have the 

words, all intrastate waters. You have the words, to the fullest extent of Congress’ legislative power under the entire Constitution, 

not just the Commerce Clause. Those are very broad words, and a 

court looking at that will say—I mean could say—could say that 

means that Congress intended to regulate every single water to the 

extent of whatever its authority is. 

As Professor Adler is pointing out, it sort of begs the question, 

what is that authority and where does it end? 

And so, the only way you would find it really is ultimately 

through litigation. So, in a way, what would happen is that Congress would end up throwing it back to the courts, which I don’t 

think is what you want to do. 

I think you are trying to solve a problem here, and I respect that, 

and we want to work with you on that. 

64 

Mrs. DRAKE. Thank you. I believe that we are trying to solve a 

problem, but it sounds to us that we are making the problem bigger. 

So, thank you, Mr. Chairman. I will yield back. 

Mr. OBERSTAR. Very good, very good discussion of a very complex 

subject matter. I just point out that what is intended is a threepart test, the point source discharge from that point source and the 

waters. 

Mr. Larsen. 

Mr. LARSEN. Thank you, Mr. Chairman. 

For Mr. Squillace, I don’t understand what you were saying regarding navigable being in the statute. It is in the statute, perhaps 

with the qualifications that the Chairman has pointed out, and it 

is in the conference report apparently from 1972. 

I haven’t seen that, but since the Chairman was here then, working on that, I am certainly not going to doubt him nor would I 

doubt him if he said it without evidence. I would certainly stand 

behind what he had to say. 

So I don’t understand your comments. To me, it makes it sound 

like either you disagree with it or that Congress made an error. 

Your conflict isn’t a legal conflict. It is that you just don’t think it 

ought to be in there. 

Mr. SQUILLACE. Yes, fair point, and let me try to address it as 

best I can. 

I think when Congress chose to use the phrase, navigable waters, 

they were simply borrowing that language from the Rivers and 

Harbors Act, and I frankly don’t think they really thought about 

it in the context of traditional navigable waters. 

I take that in part from the fact that, as the Chairman has already noted, Congress said quite explicitly in the conference report 

in the bill that it intended the broadest possible constitutional interpretation of that jurisdiction under the Clean Water Act. That 

is not navigable waters, and so that sort of explanation of what 

Congress intended didn’t fit that phrase, navigable waters. 

As I have already mentioned, and I think it is absolutely clear 

if you look back at the legislative history, there is no doubt in my 

mind that Congress intended to go well beyond the Rivers and Harbors Act in a particular Section 13 of the Refuse Act in setting out 

the jurisdiction of the Clean Water Act. Yet, the Rivers and Harbors Act provision specifically includes tributaries of navigable waters as well as navigable waters. 

Mr. LARSEN. Right. 

Mr. SQUILLACE. We are in this ironic situation now where, because of the Rapanos case, we have a court interpretation that 

seems to be narrower than the Rivers and Harbors Act on which 

it was based. Ironically, I say because I think Congress clearly intended it to be broader. 

Mr. LARSEN. Okay. For Professor Buzbee and Professor Adler, I 

will just pick on you two rather than have all four of you because 

it seems that perhaps you two differ maybe on some things, and 

so it might be more fun. 

Listening to Secretary Woodley from the Corps, he seemed to 

say, and I think I will mix up some metaphors here, but that there 

was a need for the agency to draw a line to which to tether reguVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
65 

lator guidance. At least that seemed to be his point of view, from 

the Corps’ point of view presumably. 

So, on this issue of drawing a line or having a stake in the 

ground, whatever metaphor you want, upon which the regulatory 

agencies can attach themselves in order to create guidance, does it 

not make sense to have a tether, a bright line, whatever terms we 

have been using or, if it doesn’t, then upon what should the agencies develop their regulatory guidance because they are going to 

have to based it on something because they are going to have to 

defend it sometime? 

Mr. BUZBEE. Well, I would say that perhaps most importantly 

the best way to get clarification is to take what, at this point, is 

a statute that doesn’t define waters of the United States, take that 

regulatory definition as does the Restoration Act and put it in. 

That would be the biggest clarification of the Clean Water Act you 

could imagine because then the Army Corps and EPA would know 

exactly what the key provisions are they need to look to and it 

would make them statutory. 

I thought it was striking that when one of the representatives, 

Congressmen, asked Mr. Cruden, would the Restoration Act lead to 

an increase in litigation. His answer was it would not lead to a decrease in litigation, and so he was very careful with this. 

I think that this would add clarity. So I think that is the best 

way. 

As far as drawing a bright line, if you are suggesting that maybe 

there is some way without legislation you can get a bright line, I 

don’t think you can. 

I think that this an area that is pervaded by blurry edges and 

judgment calls. You need agencies exercising expertise, and they 

long have. I think the idea behind the Restoration Act is to give 

that power back to regulators who are much better at this than our 

Supreme Court justices. 

Mr. ADLER. As you suggested, I do disagree with my colleague a 

little bit. 

First of all, the legislation, as it is written, doesn’t simply incorporate the existing regulations. It omits certain phrases. It summarizes certain phrases. I think, in some respects, it is potentially 

even broader than at least portions of the existing Federal regulations. 

And, as I have already noted and as many commentators have 

noted, the existing regulations have problems and have had problems since the Lopez decision for a variety of reasons. The Army 

Corps of Engineers and EPA have decided for the last 13 years not 

to revise their regulations though, as I know Ms. Albrecht has 

pointed out on numerous occasions, they have said I think probably 

at this point 15 or 20 times, that they were going to issue new regulations and clarify the scope of their rules. They haven’t done so. 

That is going to be necessary whether legislation passes or not 

because unless legislation is going to have the level of detail and 

intricacy that is possible through a notice and comment rulemaking, the agencies are going to still have to spell out: Okay, how 

do we know that this water is within Federal authority? How do 

we know it is something that may affect commerce or that has a 

substantial effect on commerce? 

66 

The agencies are still going to have to spell that out. 

What I would argue is important to do if we want clarity now 

and want to get away from the very difficult and very time-consuming, case by case, situation-specific analysis that the agencies 

are forced to go through now is this Committee—I don’t know if 

you could force them but essentially encourage—strongly encourage 

the agencies to do what, again, three justices in the Rapanos decision called upon the agencies to do; which is to use their expertise, 

use their understanding of ecological interconnection to spell out 

what it is that constitutes a significant nexus to navigable waterways because that would both take care of the constitutional problem, because it would tether the assertion of jurisdiction to the ultimate source of Federal authority in this area which is some connection to interstate waterways and navigability. 

It would also allow for regulatory definitions to take into account 

contemporary scientific understanding. 

As the Kennedy opinion, the Roberts opinion, the Breyer opinion 

all made very clear, the Court will be very deferential to that sort 

of decision and that sort of rulemaking and, in fact, courts will be 

more deferential to the Corps of Engineers and the EPA laying out 

what it is that establishes the significant nexus than they will be 

to ad hoc, case by case jurisdictional determinations made in the 

context of a given enforcement action or given case of litigation. 

The Robison case in the Eleventh Circuit bears that out. 

The courts are going to be less deferential to the arguments 

made by a given enforcement agent in a given context much as 

Justice Kennedy notes, though, they will be a lot more deferential 

to the agency saying, in most cases, these sorts of ecological features are indicative of a significant nexus. 

Justice Kennedy made very clear that the agencies can be overinclusive. If they give a reason why in most cases a certain ecological feature is going to provide that significant nexus, as Justice 

Kennedy said in his concurrence, that will be good enough. In fact, 

he justified the Riverside Bayview Homes decision on precisely that 

ground. 

I think that is the only way to get not perfect certainty, not an 

absolute bright line, but at least to get a dramatic step towards the 

level of certainty that this Committee and the environmental community and the regulated community all want. 

Mr. LARSEN. Thank you. 

Mr. OBERSTAR. The gentleman’s time has expired. 

Mr. Ehlers. 

Mr. EHLERS. I have no questions at this time, Mr. Chairman. 

Mr. OBERSTAR. Mr. Salazar. 

Mr. SALAZAR. Thank you, Mr. Chairman. 

I have a couple of questions for Professor Squillace. In your testimony, you talked about how there were two court cases that actually declared the Colorado River not navigable, right, but it is my 

understanding that the river is still handled and regulated under 

the Clean Water Act, correct? 

So I guess what I am asking you is what difference would it 

make whether the river is not navigable or navigable? For example, 

many of my friends have actually floated down the river on rafts, 

and so I would consider it navigable to a certain extent. 

67 

Could you expand on what you meant by that statement? 

Mr. SQUILLACE. Sure. I hope I can call you as a witness to that 

effect if we get into litigation over whether the Colorado River is 

navigable. There is more discussion about that. 

I was expecting this question. I am not surprised to hear it. I 

guess what I would say is that there is a real problem with the 

way in which the current law has been construed in the Rapanos 

case in this specific regard. 

There is a case out of, I want to say, the Eleventh Circuit, the 

Robison case, that involves a decision, a situation just as you are 

talking about, where the individual who was subject to the Clean 

Water Act got an NPDES permit, accepted that he needed one, had 

it for years, and ultimately was caught essentially violating, deliberately violating the statute. 

He was indicted on 25 criminal counts for violating the statute. 

He told his employees to lie about the violations. It was really a 

parade of horribles in this case. 

His defense was, well, these weren’t waters of the United States. 

Ultimately, I think the case has not been fully resolved, but essentially he won in the Eleventh Circuit. The Court sent it back to determine whether or not it meant the significant nexus test that 

Justice Kennedy set out. 

There was all along an acceptance, and there has been for years 

in many of these cases, that the Clean Water Act applies. But now 

the Rapanos case, I think, has allowed an opening, if you will, to 

challenge all of these issues. 

I share your sort of skepticism, I guess, about the validity of 

these decisions of the Colorado Supreme Court. You, fairly I think, 

point out that perhaps there is more than one test for navigability 

that might play out. 

The Court really hasn’t been very helpful in ferreting that out for 

us, and I honestly think that the only way to address this problem 

is to really get beyond navigability. It has never been about navigability with the Clean Water Act. It has been about clean water. 

There are lines that we need to draw. We should talk about 

where those lines are, but I think that we ought to do that in a 

way that doesn’t deal with a concept that really doesn’t have much 

meaning in terms of keeping our Nation’s waters clean. 

Mr. SALAZAR. But you do agree with me that the Colorado River 

is regulated under the Clean Water Act? 

Mr. SQUILLACE. I would agree. 

Mr. SALAZAR. Whether it is navigable or not? 

Mr. SQUILLACE. I would agree that, as for now, people accept 

that they are subject to regulation when they discharge pollutants 

from a point source into the Colorado River. 

Mr. SALAZAR. Just briefly, could you expand a little bit? I know 

that in your testimony, you talked about water is an article of commerce. I am not quite sure what you mean by that. 

Mr. SQUILLACE. Well, the Supreme Court has made clear in an 

old case called Sporhase v. Nebraska that water is an article of 

commerce. In that case, they specifically prevented the State of Nebraska from denying a Colorado farmer the right to take water 

from Nebraska into Colorado. So we know from that Supreme 

Court decision, water is in fact an article of commerce. 

68 

That doesn’t mean—and I want to emphasize this—that the Congress has not been deferential toward the States in allowing each 

State to adopt its own system of regulating water, but it does mean 

at the end of the day that the Federal Government has a broad authority to regulate water as commerce. 

Mr. SALAZAR. Thank you. 

I yield back, Mr. Chairman. 

Mr. OBERSTAR. I thank the gentleman and the witnesses. 

Mr. Hayes? No questions. 

Mr. Hall. 

Mr. HALL. Thank you, Mr. Chairman, and thank you to our witnesses for your illuminating testimony. 

We have in New York, I think, a strong sentiment in favor of, 

certainly an official position in the State of New York, which I 

share, is strongly in favor of the passage of the Clean Water Restoration Act with some concerns on both sides about the possible 

expansion. 

I know some people who have private ponds or, in some cases, 

natural ponds or lakes on their property which have no inlet but 

do have a seasonal outlet. They are concerned about their lakes 

suddenly becoming Federal regulated, or ponds, something quite 

small, because they flow into something that flows into something 

that eventually is navigable and/or that eventually will fall into 

this definition whether the word, navigable, is not. 

As a sailor, I can tell you that I totally agree with Mr. Squillace’s 

statement that navigability has really nothing to do with it. It was 

just a way of trying to define where the line was. I have sailed 

through some pretty polluted waters and some very clean waters, 

and the boat doesn’t seem to care. 

[Laughter.] 

Mr. HALL. I will just speak about my own home on a hillside in 

Duchess County, New York, where we have two neighbors living up 

the hill from us with leach fields. When it rains heavily, when we 

have the three 50-year floods that we had in the last four years, 

some of the driveways look like they might be navigable. 

My next neighbor down the hill has a stream. It is a full yearround stream and a pond flowing behind the house. It runs eventually into, I think, the Great Swamp and from there into the Ten 

Mile that goes to Connecticut and eventually into Long Island 

Sound. 

So it is very hard to draw the line, and I agree that we need, 

if it is possible without using the word, navigable, to find the clearest possible line especially because the courts will change. This 

Court seems to be less friendly to regulation than some. Some of 

us hope that we will, in the future, have a court that will be more 

friendly to regulation, but that vacillation should be reined by the 

legislation. 

In the wake of the rulings of the Court and subsequent Administration guidance, it seems as if several polluters that were previously required to obtain permits are now trying to buck that requirement by arguing that the waters should never have been regulated in the first place. If this trend continues without a restoration of an original congressional intent, what would the impact be 

69 

on the effort to ensure that our waters are fishable and swimmable? 

This would be to Mr. Squillace, first, please. 

Mr. SQUILLACE. I think we don’t know is the answer. At least I 

don’t know the answer to what impact that is going to have. I 

think what we can say, though, is that there will be many discharges that will simply not be regulated, at least not by the Federal Government. 

Now one of the difficulties that we have here is that many of the 

States have good programs to try to regulate beyond what the Federal Government does, and I don’t want to take away from what 

the States are able to do, but I think it is difficult when we don’t 

know exactly where these lines are for us to know who should do 

what. 

I think part of the reason that the States have been so overwhelmingly supportive of broad Federal authority is because it is 

simply easier to have the Federal Government broadly in charge of 

most of our waters in this Country and allowing the States to play 

a role through the process that is established under the Clean 

Water Act. The States seem entirely comfortable with that. 

I think that if we don’t do that, then I don’t know what exact 

impact that is going to have on our waters. Certainly there is at 

least a significant risk that there will be adverse impacts on those 

waters. 

Mr. HALL. Professor Buzbee? 

Mr. BUZBEE. I would agree with that. 

Just, there are several instances. The Robison case was mentioned, where criminal law violators of Section 402 have sought to 

escape the Federal Government’s jurisdiction based on this. 

There are cases involving oil spill regulations that the American 

Petroleum has litigated and claimed that the spill regulations can 

no longer reach as far as the Federal Government has asserted because of these laws cases. 

Then there are several instances involving some lakes and ponds, 

and also I have heard of some of these permits out West where a 

permittee has claimed the Federal Government cannot reach them 

any longer. 

So I think your question is does the law, as it stands now, cut 

back on Federal protections? The answer is clearly yes. 

Even more important is everyone, including the witnesses, clearly agree the SWANCC case clearly cut back on Federal jurisdiction. 

I think every witness here would agree the SWANCC case cut back 

on Federal protections. So, in that respect, Rapanos is having the 

effect we are seeing now, and SWANCC has long been understood 

to reduce Federal protections. 

Mr. HALL. Mr. Chairman, my time is expired, but would you 

allow the other witnesses to answer the same question, please. 

Mr. OBERSTAR. Very good. 

Mr. HALL. Thank you. 

Mr. ADLER. Yes. I would just say very briefly, certainly Federal 

regulation has been restricted some, but it is not clear that that 

necessarily means meaningful environmental protection has been 

restricted. The most expansive Federal regulation is not always the 

best way to protect the environment both because, in many cases, 

70 

State and local governments are capable of intervening and they 

are more likely to intervene if the boundaries between the State 

and the Federal Government are clear. 

If the States know there is a gap to fill, they are more likely to 

fill it than if it is unclear that there is a gap to fill. Evidence of 

that, for example, is after the SWANCC case, quite a few States 

including my own Ohio introduced legislation to regulate isolated 

waters. Some passed very quickly and those that didn’t pass stalled 

once the Army Corps of Engineers and EPA, contrary to most commentators, said: We can, through our guidance, kind of wave our 

hands and pretend as if the SWANCC decision didn’t do anything, 

which is one of the things that ended up leading to Rapanos. 

When they reintroduced uncertainty into the scope of Federal jurisdiction, the States were suddenly much less aggressive in trying 

to fill that gap. It is not that States wouldn’t like the Federal Government to regulate for them, just as the States wouldn’t like the 

Federal Government to pay for their roads or pay for other things. 

The question is will States, if they recognize there is a gap and 

the definition of that gap is clear, act to fill that gap and to protect 

those waters that are important to States and local communities? 

I think they will do so a lot more than we have given them credit 

for and are more likely to do so where we can clarify the nature 

of the boundary between the Federal and State governments. 

Ms. ALBRECHT. I rest. 

Mr. HALL. Thank you, Mr. Chairman. 

Mr. OBERSTAR. Thank you very much. 

I just point out that there are at least 25 States that have legislation establishing no more restrictive requirement or stringent requirements than those that exist in Federal law. So there could be 

some very significant gaps. 

I hold this panel dismissed with a great appreciation for your 

comments and for the striking divergence in views. 

Ms. Albrecht, Professor Adler, I asked for your comments and 

your legislative suggestions on prior converted cropland, navigable 

waters and the accompanying regulatory framework and other 

items, and I hope you can do that within the next 30 days. 

Ms. ALBRECHT. Okay. 

Mr. ADLER. Sure. 

Ms. ALBRECHT. We will work on it. 

Mr. OBERSTAR. Thank you very much. 

Mr. SQUILLACE. Thank you, Mr. Chairman. 

Mr. OBERSTAR. On our next panel, we will make one adaptation 

for a witness who has a flight problem. That is if he doesn’t get 

out of here soon, he will miss his flight. 

Chris Petersen, President of the Iowa Farmers Union; Brett 

Hulsey, Dane County Supervisor, Madison, Wisconsin; Kristin Jacobs, Broward County Commissioner, Fort Lauderdale, Florida; 

Robert Cope, Commissioner, Lemhi County, Salmon, Idaho speaking for the National Association Counties; and the Honorable Don 

Munks, Skagit County Commissioner for the State of Washington, 

Mount Vernon. 

71 

TESTIMONY OF THE HONORABLE BRETT HULSEY, DANE 

COUNTY SUPERVISOR, DISTRICT 4, MADISON, WISCONSIN; 

CHRIS PETERSEN, PRESIDENT, IOWA FARMERS UNION; THE 

HONORABLE KRISTIN JACOBS, BROWARD COUNTY COMMISSIONER, DISTRICT 2, FORT LAUDERDALE, FLORIDA; THE 

HONORABLE ROBERT COPE, COMMISSIONER, LEMHI COUNTY, SALMON, IDAHO ON BEHALF OF THE NATIONAL ASSOCIATION OF COUNTIES; AND THE HONORABLE DON MUNKS, 

SKAGIT COUNTY COMMISSIONER, DISTRICT 1, MOUNT 

VERNON, WASHINGTON 

Mr. HULSEY. Thank you, Mr. Chairman. 

It is a pleasure to be here today. I decided to give a little 

slideshow to brighten things up. 

I am Brett Hulsey, Dane County Supervisor and, yes, the 

PowerPoints work. So, Dane County encompasses Madison, Wisconsin. 

[Slide shown.] 

Mr. HULSEY. Dane County, Wisconsin encompasses Madison, 

Wisconsin, the University of Wisconsin and the largest agricultural 

county in Wisconsin. We are the 89th largest agricultural county 

in the Nation and one of the top tourism counties is Dane County. 

So we balance many of these issues on a daily basis. 

[Slide shown.] 

Mr. HULSEY. In addition to this, we have many challenges as 

well. Closed beaches, the one on the left is a closed beach in my 

district. The discharge on the right is coming from an upstream 

area. We are a headwaters area ourselves. 

I have been on the county board for 10 years. I am the Chair of 

the Lakes and Watershed Commission, and I am also Chair of our 

Personal Finance Committee. So I try to combine your zeal with 

Congressman Obey’s finances at the county level. Sometimes, I succeed. 

[Slide shown.] 

Mr. HULSEY. So, basically, the issue here is that recent Supreme 

Court decisions have created chaos, as you have mentioned before. 

About 59 percent of our surface streams are no longer or at risk 

of losing protection. That is drinking water to 100 million Americans, roughly 1 in every 3 Americans. Twenty million acres of wetlands are at risk. 

We believe and I believe that your solution is a reasonable step 

forward to solving the chaos. 

So, I first got involved in Clean Water Act issues, actually safe 

drinking water issues, in 1993 when the crypto outbreak in Milwaukee killed more than 100 people and sickened 400,000. It was 

the largest waterborne disease outbreak in modern U.S. history. 

We have 400 individual permits, getting to your comment, Mr. 

Salazar, that dump to, that emit to ephemeral streams and headwater streams in Wisconsin. 

[Slide shown.] 

Mr. HULSEY. My concern is that we would allow slaughterhouses, 

feed lots, if this chaos continues, to emit directly to drinking water 

sources in our State and that we could have a recurrence of the 

crypto outbreak. 

[Slide shown.] 

72 

Mr. HULSEY. As we see, and this slide is from a recent Seattle 

Times article, we are seeing drinking water supply issues. This is 

from Congressman Larsen’s district north of Seattle, a Seattle 

Times story: Worry About Drinking Water Supplies. 

[Slide shown.] 

Mr. HULSEY. And this is what counties face today. The headline 

on the left and the picture to the left is from my county. The picture on the right is an example of where the road builder and construction engineers should have better considered wetlands in creating this reflecting pond below that diamond eight interchange. 

Floods are not new, however. We have seen this since the Bible. 

Unfortunately, as Jesus said, you build your house on your rock 

and it will withstand the flood. 

[Slide shown.] 

Mr. HULSEY. The main problem is we have seen a huge growth 

in flood insurance payments in the billions of dollars. 

[Slide shown.] 

Mr. HULSEY. There was a mention about real estate. Wetlands 

do not usually increase the value of real estate. Here is an example 

where they make it very difficult to sell in our county. We have had about $50 million of flood damage in our county 

since 1993. 

[Slide shown.] 

Mr. HULSEY. As you can see, there is a very steady pattern of 

flood damages across the Country. In your own district, it is Aitken 

County. In Congressman Larsen’s district, you are actually in one 

of the highest flood disaster declaration areas in the Nation. 

[Slide shown.] 

Mr. HULSEY. It tends to be about a third of the declarations are 

from floods but about two-thirds of the damages from floods, and 

it varies a little bit by region. 

[Slide shown.] 

Mr. HULSEY. But we see a huge increase in flood damage due to 

habitat destruction, probably climate change and also flood plain 

development. 

[Slide shown.] 

Mr. HULSEY. This is a 1993 flood. Again, you see highway structures under water. 

[Slide shown.] 

Mr. HULSEY. This is the before and after for St. Charles County 

right north of St. Louis, and there was a huge amount of flooding 

there. Congressman Carnahan’s father was a great champion in 

moving the people out of the flood plain. 

[Slide shown.] 

Mr. HULSEY. So, basically, what I am saying in my remaining 

few seconds is that we need the Clean Water Restoration Act for 

two reasons. One is to protect people from deadly pathogens in 

their drinking water. Two is to protect people from flooding. Either 

you care about these things or you don’t, and your solution is the 

best solution to the problem I have seen. 

We hope others will come forward, but if you care about these 

things, you have to do something about it because the current 

court-created chaos cannot continue. 

Thank you, Mr. Chairman. 

73 

Mr. OBERSTAR. Thank you very much for your presentation. 

We will go now to Mr. Petersen. 

Mr. PETERSEN. Thank you, Chairman Oberstar and Ranking 

Member Mica and Members of the Committee. We appreciate the 

opportunity to testify today. 

My name is Chris Petersen, and I am the President of the Iowa 

Farmers Union. I have been involved in production agriculture for 

35 years. Presently, my wife and I maintain a 30-head sustainable 

Berkshire sow herd on our farm near Clear Lake, Iowa. That is 

north central Iowa. 

In 2001, I started my own business doing consulting work with 

a network of independent family farmers, grassroots environmental 

activists and consumers consulting on concentrated animal feeding 

operations, family farm issues, food quality and safety issues and 

all other rural issues. 

Iowa Farmers Union policy states that our environment is best 

protected by family farmers who have a long-term interest in the 

productivity of the land and the healthy, safe and pure supply of 

our water. In constructing national policy to address the issues associated with water quality, we support the following actions: 

Efforts in research that addresses the issue of nonpoint source 

pollution; 

Concentrated animal feeding operations being required to post 

appropriate bonds to cover the cost of cleaning up any contamination of surface and groundwater resources. When posting these 

bonds, CAFOs should also be required to develop and submit waste 

storage closure plans; 

A national policy that discourages polluters from shopping among 

the States for the lowest environmental standards and encourages 

States and localities to establish standards beyond the Federal 

minimums; 

Cost-sharing provisions targeted to small and medium-sized 

farms; 

Responsibility for submitting a waste management plan and 

complying with waste management provisions being shared by the 

owner of the livestock and the operator of the facility; 

And, I guess taking that a little further, responsibility and liability for environmental and pollution problems being shared between 

the vertical integrators and the contract farmers on all livestock 

feeding operations. 

By changing the word of the Act to simply waters, a national set 

of guidelines can be established for eligible waterways, creating 

uniformity in the jurisdiction process and expediting the subsequent permitting process. Additional time devoted to determining 

jurisdiction comes at a great cost to both farmers and taxpayers. 

Like many aspects of agricultural policy, a clear and concise method of determining jurisdiction and permitting encourages farmers 

and ranchers to be proactive stewards of water resources. 

Restoring clean water practices to the methods used before 2001 

would not cause unwarranted hardships on farmers nor would it 

deliver them into a state of constant fear of EPA or the Corps. 

Above all, agricultural producers are eager to highlight the unique 

set of circumstances that warrant attention when formulating 

clean water laws. 

74 

In this legislation, the current regulatory exemptions related to 

farming, forestry, ranching and infrastructure maintenance that 

have been in place since 1977 could not be overruled. Activities 

such as plowing, seeding, cultivating and harvesting along with the 

construction and maintenance of farm or stock ponds, irrigation 

ditches and farm or forest roads have been exempted from the permitting requirements and would remain so under your proposed 

legislation. 

I do encourage you to include the exhaustive list of agriculturalrelated exemptions in future reauthorizations of the Act as cited by 

you, Chairman, in your opening statement. 

Water pollution damage is uneven in scope and severity because 

it occurs when farming is done at the non-farmer owned industrialized, commercialized levels. The ultimate challenges facing lawmakers is how to account for the differences between family farming operations and non-farmer owned industrialized, commercialized levels of agriculture. 

Family-sized producers should not be penalized either through 

statute or financial burdens for the irresponsible actions of massive 

corporate agriculture outfits who conduct business with little regard for the environmental sustainability. 

I am just about done here. 

What will help farmers and ranchers in the future is a less cumbersome and more expedient process by which agriculture, EPA 

and the Corps can come to a consensus of what problems do or do 

not need to be addressed and the most common sense by which 

challenges can be resolved and solved. We support your legislation, 

and it needs to be passed to address the chaos of the last few years. 

I just want to make it very clear that I am a family farmer. I 

am very environmentally conscious, and a clean environment and 

clean water are very essential to every single citizen of the United 

States. 

Being a good steward of the land and clean water is not elitist 

or a process of the wealthy. It is something that needs to happen 

in this Country. 

Thank you very much. 

I am sorry, but I have a plane to catch. If there are any questions, please address it through our National Farmers Union office, 

and I will be more than happy to answer your questions. 

Mr. OBERSTAR. Are you flying Northwest? 

Mr. PETERSEN. United, actually. 

Mr. OBERSTAR. Oh, well, you got a little better shot at it then, 

at making that flight then, but you really need to leave right now 

if you have a 7:45. 

[Laughter.] 

Mr. OBERSTAR. So, if we include the ag-related exemptions with 

the savings clause and include reference to prior converted farmland as we have discussed earlier today, which you heard, that 

would make the bill more acceptable than you already consider it 

to be? 

Mr. PETERSEN. Yes, exactly. Farmers, basically, don’t have any 

problem, at least I don’t and the farmers I run don’t—there are 

tens of thousands of us—with doing the right things for better 

stewardship and clean water. 

75 

Mr. OBERSTAR. Thank you very, very much for your contribution. 

Mr. PETERSEN. Thank you. 

Mr. OBERSTAR. Ms. Jacobs. 

Ms. JACOBS. I guess it is almost good evening at this point, but 

thank you, Mr. Chair and Members of the Committee, for giving 

us and me the particular honor to be able to talk to you today 

about the Clean Water Restoration Act, and I would ask that my 

comments today be recorded as a part of the record. 

I have been a Broward County Commissioner for 10 years, representing the Nation’s 14th largest county and the State of Florida’s second largest county by population. I am also a member of 

the South Florida Water Management District’s Water Advisory 

Commission which comments on policies for the 16 counties in middle to lower part of the State of Florida, from the Kissimmee chain 

of lakes all the way to Key West. 

Broward County is bordered on the east by the Atlantic Ocean 

and on the west by the Everglades, extending, as I like to say, from 

the seagrass to the sawgrass. In fact, two-thirds of our county is 

Everglades protected land. These natural environments are connected by a network of 1,800 linear miles of canals throughout our 

county, and the stewardship of our water resources and protection 

of them from flooding and drought are important responsibilities 

not only to Broward County but to governments across the Country. 

Broward County’s environmental quality is an integral part of 

our economic health with approximately 10 million visitors—yes, I 

said 10 million—to our county per year, who enjoy our natural resources as well as our local businesses. 

Having served as Broward County’s mayor during Hurricanes 

Katrina and Wilma, which was the worst storm to hit Broward 

County in 55 years, I saw firsthand how the protection of our environmental efforts supports the flood protection infrastructure that 

meets of our citizens to be safe in their homes and their businesses. 

Without protection, careful monitoring and regulation, pollutants 

in surface waters and stormwater could easily threaten the nearshore Everglades habitats. Our county has benefitted greatly from 

those protections afforded us by the Clean Water Act over the last 

several decades. 

The Clean Water Restoration Act should be supported by this 

Committee and by Congress. The bill is consistent with the views 

of many prior Federal court decisions which held that Congress intended to give the terms, navigable waters and waters of the 

United States, the broadest permissible constitutional interpretation. The bill clarifies Congress’ intent by restoring the agency’s 

definition, providing a plain meaning of waters of the United 

States, and resulting in more traditional consistent regulation. 

Simply put, the bill restores the scope of Federal jurisdiction, no 

more and no less. 

What the bill does not do is expand Federal jurisdiction or preempt State or local jurisdiction as to water or to land use. The savings clause preserves existing exemptions from Federal regulation. 

Public infrastructure, maintenance and water supply projects 

would not be treated differently than before SWANCC and 

Rapanos. 

76 

The bill would continue to allow for stricter local standards, 

which Broward County has higher standards than that which is set 

by the State of Florida, and does not propose to change the current 

authority of States to manage permitting, grant and research programs. 

However long it took to get a Corps permit in 1993, one thing 

is sure, that post-Rapanos it is going to be even more difficult to 

get those permits and longer if we don’t change the situation as it 

currently stands. 

The bill has been criticized as introducing regulation of swales 

and ditches. The role of the Federal Government in these areas is 

not changed by passage of this bill. Swales are prevalent throughout Broward County and are part of a water quality treatment system, and treatment is provided prior to discharge in canals or 

water bodies. 

Ditches are already defined as a point source in Subsection 

502.14 of the Act. The Clean Water Act allowed discharges of pollutants from such sources to waters of the U.S. when they comply 

with Section 402’s NPDES program. The bill will simply not expand or even disturb regulation of ditches under the Act. 

Concerns about expanded regulation of public infrastructure, 

maintenance and water supply projects are also misplaced. When 

such projects affect isolated wetlands or very intermittently existing waters, it can accommodate reasonable Federal regulation 

given the 5-year and 10-year and sometimes longer timeframes 

that are involved in capital funding, land use acquisition and zoning decisions. 

I would point out to you that Broward County has one of the 

unique roles throughout our State that we have countywide land 

use authority, and we have not had it challenge by the Clean 

Water Act so far and don’t expect it to be changed as passage of 

this bill, hopefully, occurs. The lower risk of challenges and litigation and the restoration of a uniform minimum level of protection 

of our waters nationwide is what would result from this bill’s passage. 

Mr. Chair, most of Broward County’s congressional representatives are among the 175 co-sponsors of your bill, and I am proud 

that they are. 

As for my opposing colleagues at NACO, I have no doubt that 

they are very sincere in their concerns that this legislation might 

preempt their local authority and make permitting requirements 

even more onerous. Broward County respectfully disagrees. 

Let me assure the Members of this Committee, the Broward 

County Board of County Commissioners supports strong water 

quality protections and legislation that retains the original intent 

of the Clean Water Act to restore and maintain the integrity and 

quality of our Nation’s waters, and we have ensconced that in a 

resolution that I would provide for anyone that would like to see 

a copy. 

Restoring the Clean Water Act protections to all of our water 

bodies is crucial as counties across the Nation are dealing with 

massive flooding, lack of drinking water and new threats of unregulated industrial pollution to our streams and drinking water 

sources. 

77 

As a brand new grandmother, I think we can safely say that this 

bill has some steps to go to reach clarification. I urge you today to 

go through those steps to try to find that bridge that links some 

of the issues for language which you clearly, very well laid out for 

us this morning, Mr. Chair, and I would ask that ultimately this 

bill pass this Congress for the good of this Nation, for the good of 

our county, for the good of my grandchild and those still to come. 

I thank you so much for the privilege of offering my testimony 

to you today. 

Mr. OBERSTAR. Thank you very much. Grandmothers are coming 

awfully young these days. 

[Laughter.] 

Mr. OBERSTAR. You must be very pleased with the legislation 

that Congress enacted over the President’s veto to restore the Everglades in the Water Resources Development Act. 

Ms. JACOBS. Oh, yes, sir. Yes, sir. 

Mr. OBERSTAR. Over $2 billion to that initiative. 

Ms. JACOBS. It is one of the most important things to happen in 

the State of Florida. 

Mr. OBERSTAR. Commissioner Cope. 

Mr. COPE. Thank you, Mr. Chairman. 

My name is Cope, as you know. I am here representing the National Association of Counties, better known as NACO. I am privileged to serve as the Chairman of their Environment, Energy and 

Land Use Committee. 

As you may well know, NACO officially opposes the Clean Water 

Restoration Act. That was done through the process of a resolution 

to that effect was approved by four committees, steering committees of the organization, three of them unanimously. 

That doesn’t mean that every county—you have heard Dane 

county and Broward County—oppose it. That is not unusual. I notice from the votes that you had taken today, it is pretty rare that 

you get unanimity on the floor of the House. I think that probably 

happens also in most places. But the vast majority of counties have 

a basic problem with the type of philosophy that this Act has. 

Make no mistake about it, the issue is not clean water. When we 

talk about the protections and all the pollutant problems we have, 

this issue is jurisdiction rather than quality. 

All of us fully support clean water. It is essential in my area of 

the West where we get 11 inches of moisture a year and we don’t 

have enough water to go around. Both the quantity and the quality 

are vital to our very survival, but jurisdiction does not necessarily 

bring with it, protection. 

In fact, most of the big pollution we have in my neck of the 

woods comes from the sludge that runs off the ground after the forest fires that is due to the great protection that we managed to put 

in place on our public lands. We have discovered the hard way that 

Federal jurisdiction doesn’t necessarily work out best for the environment and for its people. 

We do have some suggestions we would like to make. Overall, we 

do feel that the word, navigable, needs to stay in place, but it needs 

to be defined. 

There is a wide range of definitions of navigability across this 

Country. In Idaho, the definition of a navigable stream is any 

78 

stream that will float a six inch log in high water, and it doesn’t 

state how long the log has to be or how far it has to float. I think 

there is some room for improvement on that definition, myself, and 

I think we could have one that would establish what we are actually talking about. 

There are partnerships that need to be strengthened and restored among Federal, State and local governments. I think this is 

absolutely vital, and I very much fear that if we decide that all the 

waters come under Federal jurisdiction, we have the potential to 

lose some of those partnerships. 

I am absolutely convinced that we lose flexibility. We have never 

felt comfortable with spandex regulations nationwide. One size 

doesn’t fit all. I realize that things happen. My colleague here from 

Iowa talked about the things they have, but Iowa and Idaho are 

different, and the standards that will work very well along the Missouri and Mississippi valleys on the two sides of the State fail miserably in the Salmon and the Snake. 

The same types of background for some types of heavy metals 

you may find on the coast of Lake Erie in Ohio won’t function on 

the Pacific Coast of Oregon. Just for one thing, the arsenic levels 

are higher for the background. 

I do believe fully that some allowances have to be made for geographical differences. If we try to put a blanket on the entire Country, we are going to find places too loose and places it is too tight. 

I see no avoiding that. 

We fully believe that that government governs best which is closest to the people. I think, from my experience, county government 

tends to do that well. 

I heard today a broad list of exceptions to the Act that have been 

in place and stayed in place, but somehow on the ground they don’t 

seem to happen that way all the time. We had Secretary Woodley 

who sat here—what is his name? I can’t remember now—and told 

us all the things that the Corps didn’t do, but I think he is missing 

talking to some of these people because it doesn’t seem to be uniformly applied. 

A classic example we had just recently in my county, again the 

forest service wanted to do a little campground improvement at 

Meadow Lake. It is up about 9,000 feet. It drains into nothing. It 

is a glacial basin. The Corps decided they had to be permitted. 

The forest service said: Why? It doesn’t connect to anything? It 

is just a basin there. 

They said, well, don’t you have some people go up and recreate. 

Well, yes, there are campers that come up. 

Do they come from out of State? 

Well, there are some that come out of Montana. 

Well, that is interstate commerce, so it is now Federal jurisdiction. 

These are real case scenarios that are happening. 

We also feel one of our prime projects has been the Upper Salmon Basin Model Watershed Project. We have done a great deal of 

work in Central Idaho for riparian enclosures, building up fences. 

We do culvert replacement, stream reconnection. It is funded mainly through Bonneville Power Administration monies. Those monies 

cannot be committed more than 24 months in advance. 

79 

We are barely making the permit applications now. I think if we 

get any more load onto the Corps and extend that time at all, we 

have deleterious environmental effects because we won’t be able to 

perform the actions that we have out there. 

I say again, the issue here is not clean water. It is not the environment. It is a question of jurisdiction and in doing what is most 

effective and right. 

When we have situations with the forest service, we have two 

Federal agencies who are having to develop parallel programs in 

concert with each other, both of them at taxpayer expense. When 

we also have the Bonneville Power situation with the model watershed, we are failing to provide some of the really good environmental effects that we can have just because our time delays become too great. 

I really believe that man is capable of developing his own environment and modifying his own environment for the better and 

that not all activities men do are necessarily bad. We can do beneficial things. 

I would like and I believe NACO would like to see the flexibility 

for local government to utilize the expertise that we have on the 

ground and do that best efficiently, and I believe the Act, in the 

form it currently has, doesn’t take that into consideration. 

Thank you. 

Mr. OBERSTAR. Thank you very much, Commissioner Cope. We 

appreciate your statement. 

Commissioner Munks from Skagit County. 

Mr. MUNKS. Skagit County, you got it right. That is good. 

Thank you, Chairman Oberstar and distinguished Members of 

this Committee. 

It is an honor and privilege to testify before you today on some 

significant concerns that my constituents have in regard to the 

Clean Water Restoration Act of 2007. I would like to thank Congressman Larsen for graciously working with the people of Skagit 

County to provide us with this opportunity. 

I hail from one of the richest agricultural valleys in the Western 

Hemisphere, nestled between the alpine mountains of the North 

Cascades and the crystal clear seas of Puget Sound. The Skagit 

River is the longest river draining into Puget Sound and is home 

to all five species of Pacific Salmon as well as steelhead and bull 

trout. We have four other rivers and hundreds of tributaries. 

As a fourth generation Skagit County farmer, my great grandfather settled on the pristine banks of Fidalgo Bay in the 1950s, 

where my family resides to this day. We have great respect for the 

land and the waters of our beautiful county. 

Although we were experiencing significant pressures of growth 

from the north to Vancouver, BC, and from the south to Seattle, 

Washington, the strength of our agriculturally-based economy has 

motivated our citizens to be good stewards of that land. We harvest 

the finest red potatoes in the world, produce hundreds of acres of 

stunning world famous tulips, provide a significant portion of cabbage and other kohlrabi crop seeds for the entire world as well as 

being on the cutting edge of production for blueberries, strawberries and raspberries. 

80 

Other Puget Sound counties have sat back and watched their 

farmland disappear. Working with farm families and advocacy 

groups, we have worked hard to keep agriculture viable. We have 

protected more than 5,000 of our 90,000 acres of fertile farmland 

from future development with our Farmland Legacy Program 

which allows us to purchase conservation easements, protecting our 

open spaces and productive farmlands for eternity. County taxpayers voted to impose this tax on themselves. We allow only one 

farm home every 40 acres of ag land. 

Our bays and estuaries support more than 93 percent of the 

overwintering waterfowl in western Washington including the 

Western High Arctic goose, Trumpeter swans, black brant plus 

many other species. 

In 1995, the county commissioners created the Clean Water 

Shellfish Protection District to clean up our saltwater bays for 

shellfish harvests. 

In 2004, we instructed our health department to work with rural 

property owners to form community councils in problem areas and, 

with our expertise in State grants and Federal grants, replaced the 

faulty septic systems. 

County departments consider salmon recovery in all of our actions and pursue grant funding for salmon enhancements. 

Today, we tax our citizens to monitor water quality and habitat, 

administrative lake districts, enforce water quality compliance and 

operate onsite sewage programs. We work hand in hand with other 

organizations such as conservation districts, fisheries enhancements, watershed councils and local tribes to ensure our water is 

clean. 

So, with that being said, why am I, Don Munks from Skagit 

County, here today to testify against Clean Water Restoration Act 

of 2007? 

It is obvious that fellow commissioners and I, along with thousands of community members, are strong advocates of clean water 

and are willing to tax ourselves to back up our values. 

Our main concern is that the bill proposes the word, navigable, 

to be eliminated from the definition of waters of the U.S. in the 

Clean Water Act. This would effectively put all bodies of water or 

perceived bodies of water under Federal jurisdiction, even those 

waters currently under State authority. 

Let me liken this crisis to a national emergency due to a natural 

disaster. History has shown that those communities that wait for 

Federal intervention suffer devastating loss. While many pointed 

their finger at FEMA in the Katrina disaster, the real disaster was 

in the inability of the first responders at the local level to react. 

In regard to clean water, we are the first and best responders 

and have been very productive. By removing our ability to be first 

responders and saddling us with a cumbersome permitting process, 

we would be faced with a huge impact that may require a Clean 

Water Act permit for routine tasks. Requiring Clean Water Act 

permit for gutters, driveways, driveway cultures, agricultural 

ditches, farm ponds and roadside ditches would dramatically increase the time required to process permits and create a backlog 

of projects for the Corps to add to an already significant backlog. 

81 

Annually, hundreds of small projects currently being completed 

by county forces and moderate permit requirements would require 

a permit from the Corps. In addition, private property owners currently able to construct would be required to obtain a Corps permit. 

Not only does this greatly increase the permit applications required, but it adds additional burdens to the Corps to process the 

thousands of additional permits they will receive every year. 

Many of these projects have short allowed construction windows 

due to salmon spawning. The increased length of time to obtain 

permits will often result in the project being deferred until the next 

year to enable construction during the fish window. During the 

delay, the need for the project that promotes clean water continues 

or increases. We will miss grant deadlines and be burdened with 

additional staff time. 

The intent of your bill is fine. We all want clean water. But by 

dramatically expanding the jurisdiction of the Corps of Engineers, 

you will stymie the efforts of Skagit County, our dike and drainage 

districts and our advocacy and resources groups to continue work 

toward a common goal. 

We ask you for the opportunity to continue to be first responders 

for clean water by not saddling us with additional bureaucracy. As 

we help you on the ground make our water cleaner and healthier, 

please help us with legislation that is clear and simplifies our permitting process. 

Thank you. 

Mr. OBERSTAR. Thank you very much for your testimony and for 

the concerns you have raised, and let me begin there. 

You said the legislation would cost additional money and create 

delays and complexity. In fact, without action, counties all over the 

Country and especially in my own congressional district have said 

it is costing them millions of dollars and additional personnel they 

have to hire, delays, paperwork to comply with this confusing complexity of post-Rapanos and SWANCC decisions and the regulatory 

guidance issued by both the Corps and the EPA. They and many 

others have appealed for clarity. 

So the bill I introduced was to establish clarity. 

As you and Commissioner Cope are concerned, if removing the 

term, navigable, from the Clean Water Act would create additional 

concerns or confusion for you, if we leave it in and attach to it the 

regulatory regime prior to the two Supreme Court decisions, do you 

have a problem with that? 

Mr. COPE. My question, Mr. Chairman, would be which regulatory regime? 

We have seen, over the 20 years leading up to this Rapanos decision a change, in your jurisdiction authority. I think it wasn’t so 

much that the Corps misread the original intent as they just 

gradually expanded their authority a little farther, a little farther 

until finally it reached the point that somebody pushed back, and 

it was the Solid Waste Authority of Northern Cook County. 

Mr. OBERSTAR. Well, in this Committee in 1977, we addressed 

the concerns arising out of the Corps’ vast expansion, which we 

thought was an overreach in implementing 404. In 1977, right here 

in this Committee room, we limited the scope and directed the 

82 

Corps, as they have done from 1977 through 2001, to follow a much 

more specific regulatory regime. 

So I have referenced it to the previous panel, the EPA and Corps 

panel earlier today. Waters of the United States and waters of the 

U.S. means—these are words drawn from the Corps regulations 

prior to the Rapanos and SWANCC decisions—‘‘All waters currently used or were used in the past or may be susceptible to use 

in interstate or foreign commerce, including waters subject to the 

ebb and flow of the tide; all interstate waters including interstate 

wetlands; all waters such as intrastate lakes, rivers, streams, including intermittent streams.’’ 

These are words from the regulatory scheme of the Corps of Engineers and of EPA. If we include, by reference, those provisions 

that were intended to be covered in the savings clause that I included in the introduced bill, Mr. Grumbles and Secretary Woodley 

said they thought that would be acceptable. 

So the provisions of the bill that I introduced say nothing in the 

Act will be construed as affecting the Secretary of the Army or the 

Administrator of EPA under the following provisions, and there are 

eight listed, eight categories. 

So, all right, if eliminating the term, navigable, causes people a 

lot of heartburn and regulatory uncertainty, let’s put it back in but 

retain the regulatory certainty of the existence of those regulations 

prior to the Supreme Court decisions. 

Mr. COPE. I think if that were defined to where we can really 

have a good boundary on where those limits sit, I think we can 

deal with that. 

Mr. OBERSTAR. They are going to come back to the Committee 

and be specific about that. 

Mr. COPE. The key to the problem we have had with that particular language is we see what it includes, but the boundaries are 

so wide, we are not real sure that there is anything exempted according to that language. 

So we would like to see some definitions. As I say, navigability 

I think could be better defined. I think we can make it work. 

Mr. OBERSTAR. But on the other hand, your State is one of those 

25 States that has prohibited itself from establishing regulatory regime more stringent than that of the Federal Government. 

Mr. COPE. That is true, but we also have a very effective Department of Environmental Quality that works very closely with the 

health districts and with the counties, and it works rather well. 

Mr. OBERSTAR. You cited that in your testimony, but I just want 

to point that out. 

Mr. MUNKS. Mr. Chairman? 

Mr. OBERSTAR. Yes. 

Mr. MUNKS. You had asked the question. Could I answer it too, 

please? 

Mr. OBERSTAR. Sure. 

Mr. MUNKS. I don’t disagree with what you are wanting to do, 

and I applaud you for wanting to put the word, navigable, back in. 

I think that what Mr. Cope said was very accurate. We want 

clarification of jurisdiction. We have spent a number of years defining what the jurisdiction is between the Federal Government and 

their agencies, the State Government and their agencies, and local 

83 

government, whether it is counties or cities and how we all act together. 

The State of Washington has been very progressive in everything 

they do. We have a tremendous amount of regulation, and we have 

a requirement that sets a minimum but allows us to do anything 

above that that we want to put in place. So we have, over the 

years, developed what it is we are going to do, how it is we are 

going to do it to protect these waterways that we have. 

It is very difficult to protect them especially with the interaction, 

as Supervisor Hulsey said. We have a lot of flooding, maybe the 

worst flooding areas as a whole in the Country, but we have mountain to sea. 

It is all a watershed, and we have a lot of area that is regulated 

by the Federal Government. It is off limits to do anything to avoid 

the flooding. And so, as we deal with that flooding and the aftermath of the water after that flooding, we are continually cleaning 

up. 

We have tremendous growth that we are trying to take care of, 

more in what I call the metropolis area. That is to the south. That 

is in Congressman Larsen’s area. 

But we have been imposing upon ourselves a lot of regulation. So 

putting navigable back in, as you said you were open to do, clarifying some of the jurisdictional issues and the definitions of what 

it is we are going to get accomplished. 

We work very well with the Corps, but the Corps in my district 

is different with definition than the Corps in Commissioner Cope’s 

district and is different than almost every district in the United 

States. So we have kind of morphed into this interaction of how we 

permit process and how we get things done. 

Mr. OBERSTAR. Thank you for that expansion. 

As I say, I am open to discussion of the subject. I want to get 

us back to pre-SWANCC and Rapanos, pre-Kennedy test, preScalia test, and to eliminate, confusion to the Corps, the EPA and 

to local interests and State interests. 

I want to restore the purpose of the Clean Water Act which I understand very clearly. However, we get there, I want to do that. So 

we are having this discussion. 

Mrs. Drake. 

Mrs. DRAKE. Thank you, Mr. Chairman, and again thank you all 

for being here. 

I think I want to start with Mr. Cope and Mr. Munks. I did hear 

you say, and I appreciate your saying it, that you think we need 

much better clarification and definition in the bill that is being proposed. But other than defining better, navigable waters, with the 

existing Clean Water Act, do you think it needs to be better defined? 

I know you have said you worked with it over the years and 

things have changed. Can you tell us, with what you have been 

working with now, since these two Supreme Court hearings, do we 

need a better definition of that or not? 

Mr. COPE. I am going to defer most of this to Mr. Munks because 

my county is 92 percent Federal land, and basically everything is 

a 404 or a 402 stream. So, as far as exactly what is and is not included within the Clean Water Act, I am not horribly familiar. 

84 

I can only tell you theoretically, from what I understand, irrigation-induced wetlands are exempt and they never are in our county. 

With that, I will turn it over to Don. 

Mrs. DRAKE. Mr. Munks did make an interesting point of people 

feel there are different sets of rules based on which Army Corps 

district you are in, and I am sorry Secretary Woodley wasn’t here 

to hear that because I have told him that. I have heard that form 

people in adjoining States to us as well when my constituents are 

working across State lines. 

Mr. MUNKS. Congresswoman, I appreciate the question because 

it kind of brings up what we are dealing with in the State of Washington. Understand, the State of Washington is split in half. There 

is a west side and an east side, and the water situation is completely different. 

On one side, we are inundated with water, record snowfalls. Lots 

of water comes down all of the rivers and follows up the tributaries 

on the west side. Now, on the east side, they are putting the water 

on the ground and creating their wetlands and their wet areas that 

they have to deal with. 

So it is kind of different on each side, but we have over the years 

put together a jurisdictional coalition between what the Corps will 

regulate through the 404 process and an expedited process that we 

go through that isn’t as onerous as the 404 depending on what the 

project. That is in conjunction with the State Department of Ecology. 

And so, as a local county, when we have a project to do, if it is 

something that we are going to have to do with the Corps, we go 

directly to the Corps and they solicit from the State Department 

of Ecology, and Fish and Wildlife comment, and from the Federal 

agencies as well. 

But otherwise, with all other aspects of what we want to permit, 

we go to Fish and Wildlife, our State Fish and Wildlife, we go to 

our State Department of Ecology, and we put out to the tribes what 

it is that we are wanting to do. Now, in Skagit County, we have 

four tribes that we deal with. 

With their issues, with salmon, ESA issues, the process should 

be very onerous, but we have simplified it with these understandings of how we are going to cooperate together and who has 

what jurisdiction. That is kind of what we are afraid that we are 

going to lose, the years of cooperation that have been established 

and what may change from that. 

Now I very much am an advocate for clean water. That is something that is very important to me, and I chair the Water Quality 

Committee for the National Association of Counties. But we know 

that we want to keep a process in line or if it is changed at the 

Federal level, quickly establish what the bottom line in that legislation is so we can quickly adapt what we are doing, so we don’t 

lose this opportunity. 

In our area, we have a very narrow fish passage window that we 

can work in water, and if we miss it, we lose our grants. If we miss 

it, we lose that year. If we miss it, we have flooding. 

Mr. HULSEY. Representative Drake? 

85 

Mrs. DRAKE. I just wanted to ask the two of you something a little different. 

Mr. HULSEY. Can I follow up on that one real quick? 

Mrs. DRAKE. Just a minute. Let me get this out. 

That is you have heard the testimony about some people wanting 

all waters to be Federal waters. You have heard the concern that 

waters would be considered Federal waters. I just wondered, with 

both you and Ms. Jacobs, if you have a concern if all water was 

considered Federal water, if that wouldn’t have an impact on your 

counties and decisions that you currently make today becoming 

Federal decisions? 

Mr. HULSEY. We have a unique situation in Wisconsin. We are 

the first and only State to fill the SWANCC loophole after it 

passed. It was a bipartisan measure signed by a Republican governor. 

So, as far as the isolated wetland issue goes, our State has 

stepped in, and I think it actually shows a good model for what 

Congressman Oberstar is trying to accomplish for the whole Country because we have not seen major disruptions in our 404 process. 

Our counties still don’t need permits for ditch maintenance. We 

never did. Our large ditches, if we do need a permit, if they do 

drain to a navigable water, then we get a general permit. 

Mrs. DRAKE. Would you agree that this bill might need better 

clarifications and definitions like Ms. Jacobs said in order to be 

really comfortable that it wouldn’t do sort of an unintended consequence? 

Mr. HULSEY. Our DNR water experts who—again, we filled the 

loophole once, so we probably know more than anybody else about 

it—support the bill as written. Our governor supports because he 

says, why should Wisconsin be the only State? 

Some people say, well, let the States do it. You have State waters. You have national waters. 

When I go to visit my 70 year old mother in Oklahoma, I want 

to know there isn’t some feed lot dumping pathogens into Lake 

Hefner, the source of her drinking water. I want to know that her 

home isn’t at risk of flooding because of upstream uncontrolled wetland destruction. So that is why we need a Federal bill. 

I am fine with the bill the way it is written right now, but if navigable waters with the exploration of activities makes others more 

comfortable, that is fine. 

The point is when you see those flood pictures before, many of 

those don’t qualify as wetlands because they are under water in 

April. They are dried out by the growing season in June. 

So I am not sure. While I appreciate getting back to where we 

are is a good start, we are spending millions and billions of dollars 

to move people out of places that they got a wetland permit to 

build their house in. 

I was sorry that the Member from North Carolina left here, but 

the Member from Washington, I looked at the wetland permits in 

these high flood, high hazard counties, and typically the Corps 

grants 90 to 100 percent of those permits to build in places that 

are going to be flooded and bought out 10 or 20 years later. I mean 

there is compelling national reason for you to have the strongest 

86 

possible regulation because you and we are going to have to pay 

to clean up the mess. 

Mrs. DRAKE. Ms. Jacobs, did you want to add something quickly? 

I know we have other questions. 

Ms. JACOBS. Just quickly because Commissioner Hulsey said 

much of what I wanted to say, and that is that the intent of this 

bill is to get us back to where we were. Our county has built out 

from north to south, east to west, under the existing Clean Water 

Act with 1,800 linear miles of canals and multiple water bodies. We 

are good shape, and we did it all working with the Corps. 

The biggest concern is we are now in a redevelopment mode, and 

we are getting more dense. We expect almost another million people in the next 20 years. So redevelopment, even in these economically depressed times, is still going on in Broward County. 

I have land use attorneys that are telling me the first thing they 

are going to do since the Rapanos is go check their malpractice insurance because they don’t know how to weigh in. They don’t know 

what to tell their clients about whether or not they need a permit. 

So the economic stimulus that will occur by making the clarifications necessary with this bill are really important to Broward 

County on top of the fact that we believe there are substantial 

water bodies that would be removed from the State’s calculation for 

grants. If those are removed, our State would not receive the 

amount of Federal dollars it does now for Clean Water Act funding, 

and that would roll downhill and, of course, affect our counties— 

so, clarification of the bill. 

The reason why: I think there is room between what concerns of 

other areas of the country are having over language. What I keep 

hearing throughout the day, as Congress has said repeatedly, is 

that we are basically on the same page. We just have some discrepancy over the wording to get us there, and I think we can find that 

language change, and I am hoping that we do. 

Mrs. DRAKE. That is what I have heard from everyone all day. 

They want the clarification. They want it more simple, but they 

want to understand what the language means, and there is a lot 

of concern about what the language means. 

Ms. JACOBS. The only thing I would say about that is that I do 

believe that there are lots of folks, and some may be in this room 

and some are not, and some may be in that stack of papers that 

was demonstrated today, that would love to see a rollback of the 

Clean Water Act. They are not eager to see it is proposed now, and 

they are throwing out red herrings. 

So, when we talk about language and our willingness to discuss 

language, I want to make it clear that we want true discussions 

that are valuable to the point and not red herrings that are raising 

concerns such as by some of the groups. Here is a picture of a ditch 

at the edge of a road, a gutter basically, and the headline says: No 

Boats Needed: New Clean Water Bill Would Make Gutters Waters 

of the U.S. Well, this simply isn’t true. 

Mrs. DRAKE. Ms. Jacobs, I have been in two hearings on this 

issue, and I have not heard that. 

Ms. JACOBS. Well, here it is. 

Mrs. DRAKE. What I hear from people is they are very anxious 

to protect our water, to not have our properties flooding, but they 

87 

want to make sure that they are not unraveling the universe, as 

Congressman Rahall said earlier today. 

So, thank you very much. I will yield back, Mr. Chairman. 

Mr. OBERSTAR. We are not going to unravel the universe, and we 

are not going to unravel the Clean Water Act. That is for sure. 

We are going to clarify and strengthen and make sure that we 

return to the pre-Rapanos decision. 

Mr. Larsen. 

Mr. LARSEN. Thank you, Mr. Chairman. Again, Mr. Chairman, I 

want to thank you for this hearing today and thank you for accommodating us in the Pacific Northwest. 

Mr. Baird and Mr. DeFazio and I, last year, got together and 

talked about who we could invite to this hearing and collectively 

decided that Commissioner Munks would be the ideal person. He 

doesn’t believe it, but we all do. I think it is important to know 

that Commissioner Munks’ comments really do come from not only 

with his heart in Skagit County but somebody who has had to work 

through these problems. 

I may have one question here, but I think the point that we 

wanted to make out of the Pacific Northwest is that there is a west 

side of the States, Washington and Oregon, which is also the wet 

side of the States in Washington and Oregon, and we get a lot of 

water. It is all relative, but in a relatively small place. It hits the 

Cascades, and it comes back at us. 

On top of that, we have—Don mentioned—the fish window. The 

Federal Government has listed the Puget Sound chinook and the 

bull trout as endangered or threatened species. So we are dealing 

with that on top of a lot of other regulations, some of which we 

have adopted ourselves, our growth management act. 

The concern you hear is one more set of uncertainties as a result 

of not just the SWANCC and Rapanos decisions but the current 

language of the proposed legislation. That is what you are hearing 

coming out the Pacific Northwest. 

So to hear you, Mr. Chairman, say that you are open to, I think 

you used the word, adaptations is heartening for us. We are looking forward to working with you on that. 

I think another thing I also heard today, though, is for those calling for the passage of H.R. 2421 as is. It may not be as simple as 

doing that since we have heard from attorneys on both side the 

issue. We have heard from counties on both sides of the issue. We 

are probably going to hear from agriculture on both sides of the 

issue. We heard from the agencies having a set of concerns as well. 

So we have plenty more work to do. 

I think you are going to get a commitment from us to work and 

try to get to a solution. We won’t be guaranteeing that we are all 

going to agree, but certainly this hearing itself has given us a lot 

to work on. 

I will just conclude with a question for Commissioner Munks, a 

question of ditches. When I hear people don’t have to get permits 

for ditches, I want to move there, frankly. Can you give us a little 

bit of experience about tide gates and ditches where we come from? 

Mr. MUNKS. It is interesting where we come from because the 

first settlers that came there saw that the most fertile ground was 

the land that was under water part of the day, and the tides went 

88 

out, and it was open. So it was full of silt, some of the richest land 

you are going to find. 

So what they did is they established dikes, built drainage canals, 

build drainage ditches, put tide gates on it to now allow the saltwater to come back in on it, drained it off and, over a period of 

years, finally got to the point where they could grow just about any 

crop they want. So they are very adamant about keeping that saltwater off of it. 

Now, as Congressman Larsen said, from the west end of Skagit 

County where we get normally about 40 inches of rain a year to 

the east end where we get about 120 inches of rain a year, where 

we wind up in the mountains and we get some of the largest 

snowfalls of anywhere in the world, water is an issue. It is a problem. 

How we get that water from the mountain to the ocean is critical. All the cities established on these rivers because they were 

navigable passageways when the county was first established. So 

we have all of our build-up or the majority of our build-up of population is along the rivers. 

These drainage ditches and what they perform to keep the water 

off of the land also worked to help us with fish restoration projects. 

They allow us to create an area from where these smolts and fry 

are developing before they go out to the saltwater. As we worked 

through these various avenues of these tide gates and everything 

else, we have ourselves put in what we call self-regulating tide 

gates which do allow for these young salmon to come and go into 

the saltwater, but it is still the draining of the land that is most 

important. 

Now for every process we go through, as a county, as a commissioner talking to my staff, we take a look first off at what is the 

impact going to be to fish and what is the impact going to be to 

the quality of the water, and we monitor that quality. 

So when we replace a culvert, when we work in the ditches, we 

do it at times of year where we are going to have the least amount 

of impact on that species. It is a very onerous process that costs 

us a lot of extra money, but we do it to ourselves. We work with 

our State agency, Fish and Wildlife and with the Department of 

Ecology and the tribes to do those projects, and we thank you very 

much for the money you give us to help do that too. It is extremely 

important. 

We are a little bit different where we are, but we have put all 

kinds of standards on our ourselves in the State of Washington, 

and Oregon does the same thing. 

So I think it is important to understand that, from me, the Federal Government is to establish what is going to be the law and 

then, from there, establish what authority you are going to give to 

States and local governments because it is us on the ground level 

that are dealing with doing the projects and creating the fixes from 

all the people that are moving into our area. That is very onerous. 

Mr. OBERSTAR. Thank you. Thank you for your very thoughtful 

presentation. It just underscores the wide differences that we have 

throughout these United States. By crafting the Clean Water Act, 

we established the Federal-State partnership under which there 

was a floor of certainty and of continuity. 

89 

Mr. Salazar. 

Mr. SALAZAR. Thank you, Mr. Chairman. 

Just a brief comment, I really enjoyed your comments, Commissioner Cope and Commissioner Munks. 

I think what we are looking at is really a Country that has different water laws throughout the Country. In the western States, 

we have, I guess in some areas, plenty of water. But in Colorado 

and Idaho and many areas, we are very sparsely populated States 

with some water and most of it goes for irrigation. 

Your comment, Mr. Chairman, on some States, and I don’t know 

if Colorado is one of the States that has a lesser of water standards, but we don’t have quite the demand, that you do back here 

in the East where it is heavily populated, on water quality issues. 

May I make the suggestion? I understand that all of us are here 

for clarification. It seems like everybody wants good, clear clarification. 

We want less litigation. I mean I am all for that. Colorado has 

the largest per capita water attorneys of any State in the Country. 

Maybe your suggestion as to what clarification means to you 

would be a good thing. 

Mr. Chairman, would you accept maybe a list of what they would 

like to see in the clarification? 

Mr. OBERSTAR. It is pretty much the same issues I have charged 

previous panels with clarifying or explaining, starting with Mr. 

Woodley and the Corps of Engineers and Mr. Grumbles for the 

EPA and the Justice Department, to be clear on what you mean 

about the categories of categorical exemptions that exist in the 

Clean Water Act and how we transfer those forward into this language. 

If, as an option—instead of, as my introduced bill does, deleting 

the word, navigable—if we retain the word, navigable, and accompany that term with prior existing regulatory structure of the 

Corps and of EPA in the several categories that I have already 

spelled out, give us your take on language to be sure that we are 

being very clear about the application of those terms. 

If we state in future legislation the term, prior converted farmland, what clarifications are needed? What definition of prior converted farmland is needed to be sure that we don’t establish a new 

term that creates additional regulatory confusion? 

There is a body of regulatory management of that term. Give us 

your language about that clarification. 

Mr. HULSEY. Mr. Chair, a quick point on that, we are the number one farming county in Wisconsin. What we are seeing occasionally is farmers using prior converted to drain the lands—that is 

fine—but then selling that for development. So we do need a backstop in there to make sure that that land isn’t then rolled over and 

is immediately flood-prone. 

Mr. OBERSTAR. Once farmland is no longer farmland, it no longer 

enjoys the exemption. That is clear in already existing practice. 

Mr. HULSEY. But there are many attempts to move forward without that because it, many times, doesn’t meet the hydrologic qualifications for a wetlands. 

Mr. OBERSTAR. The purpose of the language back in 1972 was to 

protect farmers, give farmers certainty about managing their land, 

90 

and that is the way that provision has been managed all throughout these years. 

Subsequently to enactment of the Clean Water Act, the term, 

prior converted farmland, came into use in pursuance of the agricultural exemption: normal farming, silvicultural and ranching activities, agricultural return flows, maintenance and construction of 

farm or stock ponds, irrigation ditches, maintenance of drainage 

ditches, maintenance of farm roads, forestry road, et cetera. 

Those are specific references in the Clean Water Act that apply 

to the term, prior converted farmland. Once it is no longer farmland, those exemptions don’t pertain. 

Mr. SALAZAR. Well, Mr. Chairman, reclaiming the time that I 

don’t have left, I would just like Mr. Cope to respond to that suggestion if you don’t mind. 

Mr. OBERSTAR. No, no. No time comes out of your allotment. 

Mr. COPE. Thank you, Mr. Salazar. 

What I would like to point out is after the debate we had at the 

NACO conference last summer, NACO formed a task force comprised of two members from each of several committees and boards 

who have been participating by conference call and face to face 

meeting to try to come up with suggestions to do exactly what you 

are asking us to do. That work has been in progress for several 

months now. Still, we have a ways to go, but we are working on 

that. 

As we speak, there are people who are trying to come up with 

ideas to help clarify and improve the function of the Clean Water 

Act. 

Mr. SALAZAR. I yield back, Mr. Chairman. 

Mr. OBERSTAR. Mrs. Napolitano? 

Mrs. NAPOLITANO. Thank you, Mr. Chair, and I am sorry I 

haven’t been here to listen to most of it, but I was chairing my own 

Subcommittee hearing on water today, Indian water rights. 

I have some questions that might have already been addressed, 

but one of them is how is the Act affecting water supplies as they 

implement more recycling and reuse programs in order to address 

decreasing amounts of water they are receiving from rivers, lakes 

and other traditional sources? 

That is a big concern of ours in our Subcommittee. It is going to 

be affecting a lot. You don’t have any worry because you have a lot 

of water, you have a lot of rainfall. But some of those in the arid 

west, we have to start thinking about that impact. 

Mr. COPE. Truthfully, ma’am, we have very little effect on water 

supply and recycle from the Clean Water Act. 

It is ESA that affects us because they want more instream flow 

for migrating salmon and for bull trout, and they have replaced a 

lot of our old flood irrigation with sprinkler systems which has actually decreased the recharge. So we are compounding the problem 

by jumping to conclusions that may well constitute a temporary 

stop-gap solution but, in the long run, may be harmful. 

But these aren’t Clean Water Act actions, so I can’t really address at that. We are so short of water, we would very much appreciate it if western Washington and Oregon would send some of that 

water on to us. 

Mrs. NAPOLITANO. So would we in California. 

91 

Ms. JACOBS. Well, as a native of California, I was born and 

raised in San Diego and moved to Florida when I grew up. Looking 

for another sunny place to move to when I was young, there was 

really only one choice. 

The water issues that we faced in California are very similar to 

those which we face in Broward County. In fact, when I joined the 

commission 10 years ago and went to my first water advisory board 

meeting, I was stunned to sit there and hear folks saying, wringing 

their hands, where can we find more water? 

I kept thinking we need to better use the water that we have because at 60 inches a year we are getting all that we need. It is that 

we are just not conserving it properly. 

So there are many programs that are my pet projects that we are 

really excited to talk about them. Today is not the time, but I am 

happy to share with you some of the national models that Broward 

County has set up and most recently in dealing with the issues of 

reuse, saltwater intrusion which is moving in and, of course, seepage from the Everglades into Broward County because it sits lower 

than the Everglades lands. 

With so many miles of canal systems, 31 cities and 28 water utilities in one regional government, it has been a herculean effort to 

try to draw them all to the same page. The State Legislature actually has a bill that has passed the Senate and it is moving through 

the House right now. It is a bill that will cause Broward County 

to spend upwards of $800 million within the next 15 years to build 

a plant for 1 of the 28, to build a plant that will deal with reuse. 

The problem for Broward County is that with so many canal systems, we are in a very sensitive environment where you have a 

three-tiered coral reef system, the nearshore environment where, 

with 1,800 miles of canals, you can imagine the runoff would impact the coral reef system or the backpumping into the Everglades 

which, of course, is being cost-shared with the Federal Government 

to clean it up because of nutrient overloading. 

So we are pursuing efforts with the State to try to be a little 

more reasonable with the ways in which we can use reuse. It is an 

important part of going forward for our county but most importantly is finding the grant funds to build these very expensive 

plants and try to draw all of these different cities and our sister 

counties, both Miami-Dade to the South and Palm Beach County 

to the north, into joint efforts to build treatment plants such as 

Tampa’s desalinization plant that was, of course, cost-shared by its 

water management district. We don’t enjoy that, but we are moving 

forward. 

Mrs. NAPOLITANO. But you do see that that might affect some of 

the water suppliers because of the lesser water? 

Ms. JACOBS. You mean as far as the bill? No, I don’t. I believe, 

we believe that the bill, as it is currently structured, does not take 

away from the State’s existing powers and works with them. 

Our position today is that there seems to be those who believe 

that, and we think that language clarification will pull us to the 

same side. 

Mrs. NAPOLITANO. That is what I was trying to get to is that it 

does not affect. 

92 

Mr. HULSEY. But the biggest challenge is the 402 section that allows dischargers to discharge to ephemeral streams and headwaters. There are 400 of those permits in Wisconsin. So you could 

conceivably have a slaughterhouse putting deadly pathogens into a 

ditch that was ephemeral, making up all of that, and then that 

would be the water source of someone downstream. A hundred and 

ten million Americans get their water out of headwater streams. 

Another concern is we are seeing drawdown even from groundwater. Even a place that gets 40 inches of rain a year, our groundwater drawdown is such that we are starting to have seepage in 

from the lakes into our groundwater supply. We don’t want that to 

happen because we have 130,000 dairy cattle. We still have a few 

cows in Wisconsin. 

But as a Great Lakes State, I should tell you that you are welcome to all of our water as long as it is 12 ounce cans. 

Mrs. NAPOLITANO. I hear you. 

Well, I thoroughly support this bill that Chairman Oberstar has 

put through and thank him for working with some of my individual 

water provider to addressing some of the concerns that they 

brought forth on wastewater treatment because they were concerned that that would affect them adversely. 

I know he is willing to work with us, so I have no problem bringing some of the issues that my folks in my area in Los Angeles 

County and the rest of the State, for that matter, have in regard 

to recycle, reuse, storage and all those waters. 

I am just wanting to ensure that whatever loopholes they are 

talking about, that they are not allowed to continue, that we continue to provide clean water for everybody. Somehow there has to 

be a way to change it, to close the loopholes so that the attorneys 

are not the ones that benefit but the people benefit. 

Thank you, Mr. Chair. I yield back. 

Mr. OBERSTAR. Ms. Hirono. 

Ms. HIRONO. Thank you, Mr. Chair. 

One of the major concerns is that after the SWANCC and 

Rapanos decisions, that there were waters and activities that had 

come under the CWA jurisdiction would no longer be covered, and 

therefore the States would have to step in to fill in the gap. I heard 

Mr. Hulsey say that Wisconsin is one State that had stepped after 

the SWANCC decision to fill in the gap. It seems as though Washington State had also done that and Idaho, and I commend your 

States for doing that. 

My question is, do you know if all of the other States have the 

regulatory framework and resources in place to fill in the gaps as 

your States have? 

Mr. HULSEY. I would just say, from Wisconsin, I don’t believe so. 

I have worked in about 40 States in doing different flood reports 

and other efforts, and there is a huge variability of staff, huge variability. Some States have 401. Some don’t. 

Obviously Florida and the State of Washington; I believe Michigan has addressed some of these issues. Minnesota, Indiana, Ohio 

have addressed parts of it, but they haven’t done the full SWANCC 

fix, and I don’t believe anybody has done the full Rapanos fix yet. 

Ms. JACOBS. Speaking just for Florida, we have not. There are 

revenue estimators right now looking at Florida’s budget, estiVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00114 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
93 

mating that we are $4 billion short for this year. The way that they 

are finding those dollars is you would be surprised, through the 

Environmental Protection Division and those dollars in addition to 

other areas. 

So, when we talk about resources and personnel resources that 

are being scaled back, not just on the State level but also on the 

county level, we have cut $100 million out of our budget last year 

by amendment, one that was recently passed through the actions 

of the State and reductions in property values. We expect another 

$100 million to be taken out of our budget. 

Last year, we had to let over 200 employees go, and we are looking at numbers that are twice that this year in our own staff. 

So, financial resources, personnel resources as a State and a 

county are becoming ever in shorter supply, and I believe that that 

gap is going to be reflected not just in the State of Florida but is 

ultimately going to result in the uneven balance of a standard of 

water quality nationwide, which is what the Act intended to do. 

Ms. HIRONO. That says to me that we should have a sense of urgency about making sure that the regulatory scheme is in place to 

protect the people. 

By the way, Ms. Jacobs, I am glad that you showed us that picture of a ditch that some people are saying would be covered under 

this bill as water, that that would be covered, because those are the 

kinds of questions that have come to me also. People are saying, 

well, is the puddle in my back yard going to be covered? So, clearly, 

we need to get the information and education out on what we are 

trying to do here. 

Thank you. I yield back. 

Mr. OBERSTAR. Mr. Hayes, the gentleman from North Carolina. 

Mr. HAYES. Thank you, Mr. Chairman. 

I heard from someone outside that Supervisor Hulsey was sorry 

North Carolina was gone. Well, we are back. My wife is from Wisconsin. They don’t call it the Mad City for no good reason. 

Thank you all for being here. 

Mr. Chairman, thank you for putting this together today. 

I am not a lawyer, but I have seen them do it on television. They 

say we are going to stipulate. Well, I am going to stipulate that everybody here and back home wants clean water. So we don’t have 

to talk about that anymore, but there are some very troubling 

issues. 

This is a bill, in its present form, that I could not and would not 

support. I have experience in farming, construction, manufacturing, 

a whole host of things, and the folks that I know best in my district 

would be devastated by the bill in its present form. But, remember: 

Clean water, vitally important. 

A very honest question—I will get the titles right—Commissioner 

Jacobs, I was just in Broward and Palm Beach Counties last week. 

I am a huge fan of the Everglades. Bass fishing, I mean that is a 

big deal. 

So my question to you is this bill in its present form is drawn 

to greatly favor the Florida Everglades, watery States. If this bill 

were closely drawn to reflect Nevada and Arizona and places like 

that, would it be as popular to you? 

I am kind of kidding you, but it is a serious question too. 

94 

Ms. JACOBS. I understand it is, and I have to respectfully disagree that this bill treats the Clean Water Act today any differently in its intent, I believe and so does our staff, our attorneys 

and those who work not only for us but for the State that have 

looked at this bill. 

There may be some language changes that will help draw the 

clarification on the issues that have been raised today, but there 

are substantial areas where we think that they may find that harmony in language, but overall we believe that this bill, in its 

present form, closely mirrors the existing Clean Water Act and the 

original intentions of Congress in addition to the savings clauses 

that it picks up and mirrors within this language. 

Then, finally, I would say that when we talk about language, 

there is a difference between what the Clean Water Act originally 

said and the regulatory steps that have been put in place by the 

EPA and the Corps. If it takes adopting those standards that have 

been applied by the EPA and the Corps all the way up to Rapanos, 

then let’s mirror in the bill’s Act, and you get to the same place. 

That is where I think the difference lies. 

So I don’t agree. Our county doesn’t agree that it is substantially 

different, but we think that language changes will get us to where 

need to be. 

Mr. HAYES. You made an important point, but you didn’t answer 

my question. If this were drawn to reflect Nevada or a dry State, 

it would not work so well. 

Back to the Corps, I think you mentioned the Corps. The Corps 

in North Carolina is very active. We have a tremendous number of 

wetlands and a whole host of issues. They have not come to me and 

said that they want the Clean Water Bill revised in its present 

form. 

The only point being we didn’t create the Corps, but we create 

the regulations that they operate under. We did create the EPA. 

If you come to 435 of us to try to get your problem solved so that 

it fits 50 States, history will tell you. How many of you all have 

watched the program, John Adams, the series? 

Ms. JACOBS. Every Sunday. 

Mr. HAYES. Great series, but what I got from that and related 

to this is those 13 at that point had very different issues, very different ways of dealing with them, and the 10th Amendment was 

dropped in there to make sure of the sovereignty of the States. 

Taking in account the conscience of the people, if you couldn’t govern yourself, you couldn’t govern the Country, that was the way it 

worked best. 

So, again, I appreciate the patience of all of you who have been 

here and have not even come to the witnesses table yet, but again 

I want to make the point for my constituents, that in its present 

form it does not do what we want. It is very harmful and the 10th 

Amendment. 

Commissioner Cope? 

Mr. COPE. I would like to comment on that also, and I appreciate 

that comment, Congressman. 

I have been a commissioner for better than seven years, but I 

have been a cow veterinarian for over a third of a century. I will 

tell you for a fact I learned more practical knowledge about cattle 

95 

from old ranchers at 3:00 in the morning in calving barns than I 

ever did sitting in a university classroom, listening to professors. 

There is a tremendous amount of knowledge out there at the 

local level that I very much fear, as I said earlier, we may be bypassing by using a set of standards of one size fits all and overriding the people that really know what the water is about out 

there. 

This is about water quality, and I am still a little confused. I 

have been infected with just about every infectious disease that 

cattle can pass on to humans with the exception of tuberculosis. I 

am still trying to figure out exactly which pathogens are coming 

out of the slaughterhouse. I have been infected with 

cryptosporidium more times than I can count. 

It is not a public health issue, and it is not a water quality issue. 

As I said, it is about jurisdictional and about local authority, and 

that is what the whole issue truly is. 

I appreciate your bringing that up. Thank you. 

Mr. HAYES. I am out of time. I think Commissioner Munks would 

like to make a comment. 

Mr. MUNKS. Just real quickly, a lot of what has been said, I 

think that maybe the State of Washington does things a little bit 

differently, but we heavily regulate what can and can’t be built in 

our State. 

We would never allow slaughter facilities or any other toxic facilities to dump straight into the water systems. They have very 

strict requirements within our area for what can and can’t be done 

and how they have to contain runoff on their entire property to 

process it before it can ever be released into any body of water anywhere. 

So, yes, I mean I think the one size doesn’t fit all but, Chairman 

Oberstar, I very much appreciate this hearing. I very much appreciate your willingness to take a look at language that could help 

resolve what the differences are between those that are for, those 

that are opposed to because of most of it comes down to language. 

Most of it comes down to the definitions that are being put in it 

and how it affects the jurisdiction of each of the entities. 

So I very much appreciate the opportunity to be here. 

Mr. HAYES. Mr. Chairman, I appreciate your comments about 

crafting this to get the job done. We talk a lot up here about one 

size fits all. The mental picture of that does not work nearly as 

well for me as Commissioner Cope’s spandex analogy. If you have 

been by the gym lately, spandex doesn’t work for everybody. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. It depends on the body you are putting it on. 

Mr. HULSEY. Sometimes it works better than Lycra. 

[Laughter.] 

Mr. OBERSTAR. I just want to make it clear to the gentleman 

from North Carolina, the bill was not drafted in any way to favor 

one part of the Country over another. In fact, governors of watershort States, of Arizona, New Mexico and Montana, support the bill 

in its introduced form. 

But, as I have said, since there are concerns about the application of the bill as introduced, we are having this hearing to explore 

96 

ways in which we can overcome those concerns and achieve the 

purpose of protecting the clean water of this Country. 

Mr. HAYES. If I gave the impression that it was drawn for one 

against the other, that was not my intention. But when you draw 

for 50, it is hard to make every one fit like that spandex. Thank 

you very much. 

Mr. HULSEY. But the goals of the Clean Water Act, Mr. Chair, 

water that is safe for swimming, beaches that are safe for swimming, fish that are safe to eat, is one goal that does fit all, and we 

are not there yet. 

Mr. HAYES. And everybody agrees. 

Mr. OBERSTAR. That is exactly it. 

Mr. Bishop, you have been very patient, waiting over here. 

Mr. BISHOP. Mr. Chairman, I am very anxious to hear the testimony of Mr. Tierney from the New York State DEC. So, in the interest of time, I will pass. 

Mr. OBERSTAR. The gentleman’s gracious gesture is most appreciated by the Chair and the remaining witnesses. 

I want to thank this panel and invite your contribution to the 

dialogue and further refining the provisions that I have already 

laid out on the table. Thank you very much for your contributions. 

We are going to add to panel four, Alex Matthiessen, President 

of the Hudson Riverkeeper, who has to leave here at 7:40. You are 

going to have to talk fast. 

Ms. Joan Card, Director of the Water Quality Division of the Arizona Department of Environmental Quality; Robert Trout, Denver, 

Colorado from the Trout, Raley, Montano Law Firm; James 

Tierney, Assistant Commissioner for Water Resources, New York 

Department of Environmental Conservation; Mr. Mark Pifher, Aurora Water Director, Aurora, Colorado. 

We welcome you to the witness table and thank you very much 

for participating with us this evening. 

Mr. Matthiessen, we will begin with you. 

TESTIMONY OF ALEX MATTHIESSEN, HUDSON RIVERKEEPER 

AND PRESIDENT, RIVERKEEPER, INC.; JAMES M. TIERNEY, 

ASSISTANT COMMISSIONER FOR WATER RESOURCES, NEW 

YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; JOAN CARD, DIRECTOR, WATER QUALITY DIVISION, ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY; ROBERT V. TROUT, TROUT, RALEY, MONTANO, WITWER 

AND FREEMAN, P.C.; MARK PIFHER, DIRECTOR, AURORA 

WATER ON BEHALF OF THE NATIONAL RESOURCES ASSOCIATION, THE WESTERN URBAN WATER COALITION AND 

THE WESTERN COALITION OF ARID STATES 

Mr. MATTHIESSEN. Thank you, Mr. Chairman and Members of 

the Committee for the opportunity to testify before you today. 

My name is Alex Matthiessen. I am the Hudson Riverkeeper and 

President of Riverkeeper, Inc., a New York environmental organization that, for more than three decades, has principally depended 

on the Clean Water Act to protect the Hudson River, its tributaries 

and the New York City drinking water supply which serves over 

nine million people, half the State’s population. 

97 

The Hudson is an internationally-heralded model for waterway 

restoration, and it is largely because of the Clean Water Act and 

the ability that groups like ours have had to use it to protect the 

State’s waters. 

I appear before you today on behalf of the Waterkeeper Alliance, 

a coalition of over 100 waterkeeper programs across the Nation, all 

working to protect their local rivers, bays, sounds, lakes and estuaries. 

In my testimony, I will briefly address the negative impact that 

the SWANCC and Rapanos decisions have already had on New 

York’s water resources which is the basis for our strong support for 

passage of the Clean Water Restoration Act. 

By enacting CWRA, Congress simply would be reaffirming a 

prior Congress’ intent to protect our Nation’s extensive and interconnected water resources from pollution and degradation. This 

legislation is of utmost importance if this Nation ever hopes to fulfill Congress’ original promise of eliminating pollution from our Nation’s waters, a goal we have missed by 22 years to date and, sadly, 

are still many years away from achieving. 

Previous witnesses have chronicled for you the current and still 

largely impaired state of our Nation’s waters today and the deleterious impact that the SWANCC and Rapanos decisions have rendered and will continue to render on them. I will focus on the State 

of New York’s waters and the challenges we face in trying to protect and restore them, challenges now greatly exacerbated by these 

ill-advised Supreme Court decisions. 

In New York, approximately 37 percent of the State’s river miles 

and 77 percent of the State’s lakes, including the Great Lakes, are 

impaired. Additionally, the fish in 41 percent of New York’s waters 

are not safe to eat, and New York’s wetlands are disappearing fast. 

An estimated 60 percent of New York’s original wetland acreage 

has been lost to development. The pollution filtration and aquifer 

recharge provided by the region’s wetlands is extremely important 

to ensure the delivery of safe drinking water to nearly half the 

State’s resident population. Close to 40 percent of New York’s remaining wetlands are located at the headwaters of the Hudson 

River and its tributaries. 

Representing a combined 16,000 square mile area, these headwaters feed New York’s Hudson River watershed and New York 

City’s drinking water watershed which provides over 1.5 billion gallons of prizewinning unfiltered drinking water to over 10 million 

people each day. But these watershed areas are vulnerable because 

they are inundated with isolated wetlands and ephemeral streams, 

water resources that no longer enjoy clear protection in a postSWANCC and Rapanos world. 

Allow me to give you just two examples of the Corps’ arbitrary, 

inconsistent and legally erroneous no jurisdiction determinations 

subsequent to SWANCC and Rapanos. 

The Lysander wetland, a 19-acre freshwater wetland located in 

Lysander, New York in Onondaga County, represents an excellent 

illustration. In 2001, when local residents realized that plans were 

underway to fill the Lysander wetland and construct housing on 

the site, they presented the Corps with a 1957 and 1962 map of 

the area. These maps depicted a brook that had been channeled 

98 

underneath their adjacent subdivision, and it flowed from the 

Lysander wetland into the Seneca River, a navigable water of the 

United States. 

Ignoring this information, the Corps issued a no jurisdiction determination in 2003, stating that the site at issue was an isolated 

wetland. When the homeowners subsequently pressed the Corps to 

reconsider, the Corps explained that the Buffalo District, as a matter of post-SWANCC legal interpretation, no longer considered 

hydrological connections to navigable waters through manmade 

water conveyances sufficient for establishing Clean Water Act jurisdiction. 

The homeowners took the case to the New York State Attorney 

General’s Office. After conducting its own investigation, the attorney general filed a notice of intent to sue the Corps and EPA in 

November 2004. 

In response to this legal challenge, the EPA ultimately reversed 

the Corps’ decision. The citizens ultimately prevailed but at enormous cost and waste of time and taxpayer dollars. 

The Annsville Creek wetland provided another alarming illustration of the Corps’ inability to effectively protect wetlands, postRapanos. In October, 2007, the Corps found that a wetland in 

Peekskill, New York was isolated and non-jurisdictional despite 

being only 50 feet away from Annsville Creek, a tributary of the 

Hudson River, flowing south out of the highlands into Peekskill 

Bay. 

Despite acknowledging that the wetland is situation on top of a 

former landfill and may be contributing to the pollution of 

Annsville Creek, the Corps determined that its hydrological connection to the creek through a swale feature was nonjurisdictional. 

The Corps purportedly found it significant that water only flows 

from the wetland to Annsville Creek and not in the other direction. 

The Corps also determined that the wetland lacked a significant 

nexus to an intermittent stream that directly flows into the 

Annsville Creek despite substantial evidence to the contrary. 

Both of these cases illustrate the myriad problems created by arbitrary and legally flawed Corps’ jurisdictional determinations, 

post-SWANCC and Rapanos, and a need for costly litigation in 

order to preserve wetlands and waterways that should, from the 

outset, be clearly protected under the Clean Water Act. 

To make matters worse for us in New York, the DEC, our State 

environmental agency, only regulates wetlands that are 12.4 acres 

or larger except in those cases where a wetland can be shown to 

be of local unusual importance by the DEC commissioner. With the 

loss of protection under SWANCC and Rapanos, there is now no 

clear Federal or State protection for thousands of small but 

hydrologically significant wetlands throughout New York State 

that are threatened by development. 

Without clear and strong guidance from Congress on the broad 

jurisdictional reach of the Clean Water Act as currently outlined in 

the Clean Water Restoration Act, Riverkeeper simply cannot fulfill 

its mission of acting on the public’s behalf to protect the Hudson 

River and other vital New York waters. CWRA will put an end to 

the state of confusion that SWANCC and Rapanos have engendered 

among relevant Federal agencies and return to the status quo of 

99 

a Clean Water Act regulation that was in place for 30 years prior 

to 2001. 

Rather than expanding the reach of the Clean Water Act, as 

CWRA’s opponents have disingenuously argued, the CWRA amendments merely conform the statutory text of the Clean Water Act to 

the EPA and Corps implementing regulations that were in place for 

more than 30 years prior to the upheaval caused by the SWANCC 

and Rapanos decisions. 

Now, more than ever, Congress must pass the Clean Water Restoration Act to reaffirm the statute’s original intent which accordingly to the language of the Act itself, as has been pointed out 

today, was to restore and maintain the chemical, physical and biological integrity of the Nation’s waters and make our Nation’s 

treasured waters fishable and swimmable once again. Needless to 

say, fulfillment of that goal is long overdue. 

Thank you very much, and I also just want to thank you very 

much for giving me the chance to jump onto this fourth panel and 

try and catch the 8:00 train home. My staff attorney is five months 

pregnant and getting her home at 1:00 or 2:00 would get me in 

steep trouble with her husband, I am sure. So, thank you very 

much. 

Mr. BISHOP. [Presiding.] Thank you very much and thank you for 

your patience today. 

Mr. Tierney, I know you have a flight to catch as well. 

Mr. TIERNEY. Thank you, Congressman Bishop. 

I really appreciate the opportunity to speak with you here today 

and, this, we find is a critical issue. 

Now my name is Jim Tierney. I am the Assistant Commissioner 

for Water Resources in the State of New York, and that means in 

my purview I have flood control, flood protection, wastewater treatment plants, a lot of clean water and safe drinking water responsibilities. So I wanted to share a few things on a State perspective 

on this, which I think is important, and I think in some ways I can 

speak on behalf of many States, and I will explain why. 

The Clean Water Act has been integral to the protection of our 

Nation’s waters for more than 30 years. Unfortunately, the ruling 

of the United States Supreme Court, particularly in Rapanos in my 

way of thinking, jeopardizing the Federal water pollution protections for the majority of the Nation’s rivers, streams and wetlands. 

So the State of new York formally and the governors behind this 

support the Clean Water Restoration Act of 2007. Our understanding of this legislation, our reading of it is that it truly is in 

the nature of a restoration. 

For over 30 years, the Clean Water Act was understood as regulating the discharge of pollutants, including fill, into traditional 

navigable waters, their non-navigable tributaries and wetlands adjacent to these water bodies. This view of the scope of the Act was 

contained in regulations promulgated by both the Environmental 

Protection Agency and the Army Corps of Engineers and, more precisely, was embodied in the regulatory definition of the term, waters of the United States. This legal, this regulatory definition is 

fundamental to the full scope and jurisdiction of the Act. 

While New York and the vast majority of States have expressed 

strong support for this EPA and this Army Corps regulation—I 

100 

want to stress this to you—indeed, 34 States joined in an amicus 

curiae brief before the Supreme Court, which supported this regulatory definition in the Rapanos case, 2 States supported amicus 

briefs on the opposite side. 

Now, New York strongly would like to say we concur with the 

scientific and technical findings of the Act. We actually find these 

findings to be just simply excellent and, in a way, tell it all with 

respect to the scientific connection, scientifically demonstrated connection between all waters. 

New York, as Alex mentioned, has lost 60 percent of its wetlands 

since early colonial times. Many other States have suffered even 

higher losses. I want to underscore that restoration efforts to get 

back what we have lost are difficult and time consuming, and a 

great fear that we have is that once our wetlands and small 

streams are lost and the biodiversity which they foster is lost, it 

may be difficult or impossible to reestablish this. 

Preserving wetlands and small streams through effective Federal 

statutory and regulatory programs is environmentally beneficial, 

economically effective and provides reasonable certainty for the 

regulated community. 

I just say flatly that we just simply don’t know, and the experts 

on my staff don’t know how you fulfill the purpose of the Clean 

Water Act to restore and maintain the physical, the chemical and 

the biological integrity of our Nation’s waters without protecting 

the headwater streams and the headwater wetlands. We don’t 

know how you do that. So the Clean Water Act, at a minimum, has 

to fulfill that function. 

We see Rapanos and the mischief involved in some of the 

Rapanos decisions as walking far away from that, and so that undercuts the fundamental purpose of the Clean Water Act. We do 

wish that certain Supreme Court members had read the fundamental purpose of the Clean Water Act when they were coming up 

with these interesting and innovative mechanisms to try and define 

what the scope of waters of the United States are. 

Now, with just a little more time left, I want to speak in terms 

of rebuttal and in terms of State interest. There is something called 

401 water quality certification which gives the States, as a whole, 

regulatory authority over certain Federal permits and Federal actions. 

If you shrink the definition of what constitutes a water of the 

United States, you shrink the States’ regulatory authority over hydroelectric dams, nuclear power plants, all FERC facilities and 

FERC-regulated facilities and other Federal permits issued by the 

Army Corps of Engineers. So this shrinking of the definition of the 

waters of the United States expands the scope of Federal preemption over very important things to the State of New York. 

It also doesn’t address upstream pollution into downstream 

areas. For instance, Arkansas and Oklahoma have sued each other 

famously over a number of years over upstream pollution going to 

a downstream State. 

The Clean Water Act presents a remedy to States, a legal remedy 

that supplanted previous Federal common law. By shrinking the 

scope of the term, waters of the United States, you literally take 

away a very valid and very useful interstate remedy. Frequently, 

101 

these things are worked out without getting into lawsuits, but 

sometimes, frankly, we have to tell our fellow States, do we need 

to sue you or are we going to work this out? 

Drinking water quality, flooding, dam safety and the like, all 

these things are closely connected to the integrity of our headwater 

wetland and our headwater streams. When you eliminate the wetlands, if you fill the wetlands, if you fill streams, water moves 

downstream ferociously. 

A cubic foot of water is 62.4 pounds. More of it rolling down the 

stream literally rips it apart. It adds a lot of turbidity to the drinking water supply, and that has to either be filtered out or it can 

cause waters that are previously unfiltered water supplies, such as 

New York City’s drinking water supply, to need filtration. 

I want to underscore this with you because we really believe that 

if you deregulate these wetlands, if you deregulate the controls 

over these wetlands, if you don’t correct the Rapanos decision, we 

think the New York City drinking water supply, for example, is at 

risk. If you simply have two four-hour periods of turbidity over five 

NTUs—that is pretty clear water—getting into the New York City 

distribution system, it could result in an automatic filtration order 

under current Federal law, under current Federal regulations. This is a $10 billion issue for us. To operate that plant each day 

would be another million dollars. So there is huge economic cost as 

well. 

I want to mention one other thing. Our worst case that has been 

presented, and I will sum up quickly, is that small streams, that 

small wetlands and some of these ditches, as people talk about, 

would be regulated. That can be handled through a very efficient 

and very effective general permit process. 

The worst case on the other side, that these small wetlands and 

streams can be filled or you can pour oil into them and it is not 

requiring a Clean Water Act permit, is not handled by the other 

side. I haven’t seen anybody respond to that effectively. 

Thank you for your time. 

Mr. BISHOP. Mr. Tierney, thank you very much. 

Ms. Card. 

Ms. CARD. Thank you. Mr. Chairman and Members of the Committee, thank you for the opportunity to testify today regarding 

H.R. 2421, the Clean Water Restoration Act of 2007. 

I am the Director of the Water Quality Division of the Arizona 

Department of Environmental Quality. The Arizona Department of 

Environmental Quality implements a number of water quality protection programs in our State, including the Federal Clean Water 

Act. 

Arizona’s governor, Governor Janet Napolitano, issued a letter of 

support for the legislation, and we thank you. We thank Chairman 

Oberstar for introducing this legislation, the co-sponsors and this 

Committee for your leadership in this area of great importance to 

our State. 

The Arizona Department of Environmental Quality has very serious concerns about the potential impact of the Rapanos decision on 

clean water programs in Arizona. The decision could minimize, if 

not devastate, surface water quality protections that have been implemented in Arizona under Federal leadership at least since the 

102 

1972 amendments. While the decision alone is of grave concern, the 

implementation guidance jointly issued by the EPA and the Corps 

further puts Arizona’s waters at great risk. 

Our specific concern for Arizona stemming from the Rapanos decision and guidance is the potential elimination of Clean Water Act 

protections particularly Section 402, point source permitting protections for ephemeral and intermittent or nonperennial waters and 

headwaters streams. 

Arizona’s landscape includes a vast network of these nonperennial streams: 96 percent of the stream miles in Arizona are nonperennial, and most of them are a significant distance from the 

Colorado River. The Colorado River through the Grand Canyon has 

been deemed by the Army Corps of Engineers as Arizona’s only traditional navigable water. I have included a map and graphs with 

my written testimony that illustrates these points. 

Arizona’s largest water body, second in size only to the perennially flowing Colorado River, is the Gila River. The Gila River, an 

interstate stream originating in our neighboring State of New Mexico, drains two-thirds of the land area in Arizona. 

The Gila flows intermittently in wetter years, but in times of 

long-term drought such as we are presently experiencing, this massive water body is largely dry and any flow is highly disconnected. 

The Gila’s main tributaries include the Salt, Santa Cruz and 

Hassayampa Rivers which are very large and mainly ephemeral 

streams. 

Arizona’s largest and fastest growing counties, Maricopa, Pima 

and Pinal Counties—I believe Maricopa is the Country’s fastest 

growing county—are located in the heart of the mostly ephemeral 

Gila River drainage. Subdivisions require sewage treatment facilities, and many of these facilities construct outfalls and discharge 

to ephemeral arroyos in these neighborhoods. These facilities currently hold Clean Water Act point source permits for discharges of 

wastewater that are protective of aquatic life, agricultural irrigation, livestock watering and body contact uses. 

Without Clean Water Act protections, the Arizona Department of 

Environmental Quality will be unable to require permits that are 

protective of these uses I have just listed. Arizona law prohibits the 

Arizona Department of Environmental Quality from being more 

stringent than the Federal Act. 

Arizona’s nonperennial stream water quality has benefitted from 

Clean Water Act protection since the early 1970s when 402 point 

source permits were issued for several facilities discharging wastewater to ephemeral streams, including permits for major publiclyowned treatment works serving the cities of Tucson and Phoenix 

and discharging large amounts of effluent to the Salt and Santa 

Cruz Rivers which are tributaries to the Gila River as I just described. 

Combined, these facilities treat over 200 million gallons per day 

of municipal and industrial sewage and still discharge to these 

large ephemeral waters under Section 402 point source permits. 

The Rapanos decision and guidance have presented the opportunity 

for these large POTWs and other dischargers in Arizona to argue 

that their discharges do not require Clean Water Act pollution limits after more than 30 years of such limits. 

103 

The impacts of the Rapanos decision and guidance in Arizona 

may be widespread, impacting surface water quality standards for 

nearly all of our surface streams and nearly all of our 160 Section 

402 permits for wastewater and stormwater discharges to waters 

other than the Colorado River. 

Without these Federal Clean Water Act protections which have 

been in place for 35 years, my agency may not be able to protect 

Arizona streams for aquatic life uses for species like Arizona’s native Gila and Apache trout. We may not be able to protect surface 

streams for agricultural irrigation use or livestock watering, and 

we may not be able to prohibit wastewater discharges to our most 

pristine, high quality streams like Sabino Creek and the Little Colorado River. I have also included pictures of those water bodies in 

my written testimony. 

Our governor and the Arizona Department of Environmental 

Quality support the Clean Water Restoration Act of 2007 because 

it ensures the longstanding pre-Rapanos Clean Water Act programs and protections remain in place to protect the surface water 

resources in our State. 

Thank you. 

Mr. BISHOP. Thank you very much. 

Mr. Trout. 

Mr. TROUT. Good evening, Mr. Chairman and Members of the 

Committee. 

My name is Robert Trout. I am an attorney in private practice 

in Denver, Colorado. I have been practicing law for about 32 years 

in water rights and water quality issues, representing both private 

and public entities. Right now, I am general counsel for the Northern Colorado Conservancy District which is the largest agricultural 

water supplier on a wholesale basis in the State of Colorado. 

I have been asked by Congressman Salazar to testify this 

evening to bring to your attention really the problems that the definitions in the bill potentially raise for agriculture, particularly irrigated agriculture in Colorado. 

As you probably all know, Colorado does not receive enough natural rainfall for growing crops without artificial irrigation. So virtually all crops grown in Colorado are grown using water that is 

diverted from streams or pumped out of wells, applied to the crops 

and then either seeps into the ground or runs off to nearby swales, 

drainages and rivers. 

In Colorado and most western States, we have a somewhat 

unique set of laws that govern the allocation of water which we call 

our water rights laws. In Colorado and I think most other western 

States, water, under the constitution, is declared to be the property 

of the public, but it is subject to appropriation by private citizens. 

Those private citizens have the right to divert water from the 

streams, apply it to irrigation, and then whatever is left runs back 

to the streams. These rights are determined in State adjudication 

proceedings and are considered to be private property rights under 

both Federal and State constitutions. 

In Colorado, farmers and I am personally, obviously, not a farmer. My grandfather was, but he actually farmed in Washington 

State. So I had never the privilege of having to operate an irrigated 

104 

farm, but most of my clients do, and they use a number of methodologies for irrigating farms. 

One of the oldest is what we call flood irrigation where you simply flood the field with water, and you let it sit there a while, and 

it runs off or seeps into the ground. 

As modern technology has evolved and people have tried to become more efficient with water use, they now use what we call furrow irrigation. The field actually has furrows. Water runs down 

those furrows between the lines of plants, and you can use the 

water a lot more efficiently that way or you can use sprinklers. 

In Colorado, these privately constructed facilities and the water 

that is in them is considered to be private property. Once the water 

is diverted from a stream in Colorado until it comes back to the 

stream, it is considered the appropriator’s private property. 

Our State definition of waters of the State, which is the parallel 

definition from the Federal definition, excludes those waters. Thus, 

if you modify the Clean Water Act as the way this bill proposes, 

to include waters which potentially are in the process of use, it will 

expand the definition as it applies in Colorado. 

The problems with the bill that we see from the respect of agriculture really come from the fact that we do believe it expands the 

traditional definition of what the Clean Water Act covers. You have 

heard a lot of testimony today about the fact that it includes activities and also that the definition states the intent to assert jurisdiction as far as constitutionally possible, and that is not certainly 

how the Act has been interpreted in the past. 

One term used in the Act is wet meadows. In Colorado, and I 

think Congressman Salazar himself, it is not uncommon to have 

hay fields that you flood. Well, once those hay fields have been 

flooded and they may be near the stream, they are a wet meadow. 

So the question that arises in our minds is are such fields, once 

they are irrigated or because they are irrigated, do they become 

subject to the jurisdiction of the Clean Water Act? 

The same with flood irrigation alfalfa fields which also may be 

flooded completely for a while and then not used. 

Also, the term, wetlands, really causes a lot of consternation 

among people who operate ditches in our State. Ditches leak and, 

because they leak, it is not uncommon for wetlands to form below 

a ditch for a half an acre, maybe an acre, maybe less, maybe more 

in areas where the ditch leaks. 

Well, we obviously are trying to be more efficient in the use of 

our water, and the question that arises in our mind is if that ditch 

is lined or that seepage is stopped, that has an effect on the wetland. Is that regulated under the statute as it is proposed? 

I will tell in Colorado, in the Omaha Ditch of the Corps of Engineers, currently that is not regulated. That is not considered to be 

a water of the United States. 

Finally, farms have many impoundments of water. They have 

stock ponds. They have ponds used to store water before it is applied to irrigation. They have small reservoirs. 

The definition that includes impoundments of the foregoing, particularly coupled with the language that the intent is to extend the 

legislative power of Congress as far as possible under the Constitution, raises serious concerns as to whether all of those, for practical 

105 

purposes, private ponds would be regulated under the Act. Remember, these are ponds that do not discharge to any other waters. The 

water simply is pumped out or run out by gravity until to be used 

for its intended purpose. 

In response to the Chairman’s request that witnesses discuss the 

manner in which this legislation could be improved, there are two 

things that could be done to really remedy these issues. One would 

be to have a specific exemption for irrigated agriculture, that waters that are in the process of being used for irrigation are not waters of the United States. That exemption is not in the statute now. 

There is an exemption from Section 402 discharge requirements, 

but that applies to return flows. There is an exemption from 404 

permit requirements, but that doesn’t apply to discharge requirements. 

The concern we see is application of pesticides to an irrigated 

field potentially could require a discharge permit under this definition. If the Committee and the Congress wish to go forward with 

a clarification, there should be a specific exemption for such things. 

Thank you very much. 

Mr. OBERSTAR. [Presiding.] On that point, isn’t irrigation a normal farming activity? 

Mr. TROUT. It is in Colorado, yes. Yes. 

Mr. OBERSTAR. It is all throughout the Midwest. It is all throughout the area. 

Mr. TROUT. I understand it is becoming common in the United 

States. 

Mr. OBERSTAR. Yes. So it is covered by the exemption for normal 

farming activities. 

Mr. TROUT. Which exemption are you referring to? 

Mr. OBERSTAR. Irrigation. You are saying you wanted a special 

reference to irrigation, but irrigation is considered a normal farming activity. 

Mr. TROUT. But which exemption from the Clean Water Act are 

you referring to now? 

Mr. OBERSTAR. The exemptions in the Clean Water Act that are 

included by specific reference in the introduced bill. 

Mr. TROUT. There are two exemptions. There is an exemption 

402. 

Mr. OBERSTAR. Agricultural return flows. 

Mr. TROUT. That is correct. 

Mr. OBERSTAR. Normal farming, silvicultural and ranching activities. 

Mr. TROUT. The agricultural return flows exemption applies to 

agricultural return flows. 

Mr. OBERSTAR. Yes. 

Mr. TROUT. Water applied. 

Mr. OBERSTAR. Normal farming activities includes irrigation. 

Mr. TROUT. Are you referring to the exemption on Section 404? 

Mr. OBERSTAR. The savings clause in the bill. 

I don’t want to take from Mr. Pifher’s time right here. I just 

wanted to make that point. We will come back to it. 

Mr. TROUT. Okay. 

Mr. PIFHER. Good evening. My name is Mark Pifher. I am Deputy Director of Water Resources for Aurora Water, the third largest 

106 

municipality in Colorado. I was formerly the Director, though, of 

the Colorado Water Quality Control Division. 

I am here today on behalf of certain western municipal interests. 

Bob was covering agriculture. I cover the urban areas, in particular, members of the Western Urban Water Coalition, the Western Coalition of Arid States and the National Water Resources Association. Each of these municipal entities face the daunting challenge of providing reliable, sustainable and safe water supply as 

well as wastewater and stormwater services to their many citizens. 

Water is a scarce and precious resource in the West, and we are 

all dedicated to its preservation and wise use. Therefore, we applaud the efforts of the Chair here to forge a bill that would meet 

everyone’s need. 

We believe that if we work together, identify our common interests as I think has been done by some of the panels here today, 

we can protect our resources and their many uses including irrigated agriculture, municipal use and aquatic life and we can ensure that the Clean Water Act remains the sound foundation for 

water quality protection that it has been for over 30 years. 

I would like to focus my particular comments, though, on infrastructure needs for western municipal entities and, in particular, 

how the bill is currently drafted may impede that infrastructure 

construction. 

In the West, we have growing populations, and unfortunately we 

have shrinking water supplies. Climate change, which we all believe is real, is only going to exacerbate that situation. Therefore, 

we need to adapt, and that includes adaptive measures that are related to infrastructure. Let me give you a few examples. 

First, we will have an increased reliance, I think, on reuse and 

recycling projects as Mrs. Napolitano referenced. I think they are 

very important. 

We will have the installation, I think, and maintenance responsibilities associated with new stormwater control structures including artificial wetlands. 

We are going to have an expanded use, I think, of groundwater 

recharge projects, and Mr. Grumbles addressed the groundwater 

question. 

We will have the installation, I think, of additional best management practices to control nonpoint source runoff which is the remaining, I think, most significant uncontrolled source of pollutants 

today. 

We are going to have to have the construction of additional storage reservoirs to capture snowmelt, including some high elevation 

storage. We will have replacement of leaking and old and aging infrastructure and pipes and pipelines. 

We are going to have to carefully manage our water, including 

releasing water to support threatened and endangered species. 

We are going to have to learn to use, I think, what we used to 

consider to be wastewater like produced water from energy development that is occurring today in the West and place it to beneficial use. 

But each of these activities requires the construction of new or 

replacement of infrastructure. 

107 

If the Clean Water Act embraces all waters to the extent they 

are subject to the legislative power of Congress under the Constitution and all activities affecting those waters, the Act could be interpreted by the courts to embrace all groundwater, all draining activities, all associated recreational activities, traditional flood control activities and stormwater control activities, all activities on 

Federal lands in source water protection areas. 

The permitting burden on municipalities could increase significantly as more western gullies, washes, dry stream beds, intermittent streams that flow only in response to precipitation, and effluent and dependent and isolated waters, and activities on public and 

private land surrounding such waters are now found to be by the 

courts within the scope of the Act. 

Equally important, thought, to the extent there is a new Federal 

nexus, there may be triggered additional NEPA reviews which are 

very costly and very expensive for municipal entities. 

On the wastewater side, there will also be a need for new infrastructure. Small towns will face additional burdens, utilizing lagoon treatment technology. Constructed wetlands will be a less attractive wastewater treatment alternative. Zero discharge options 

may be eliminated. Reclamation projects may be more difficult to 

permit. 

Similar constraints will be faced, we are fearful, by stormwater 

control entities. 

Relative to climate change, I think we will see a need for increase storage to buffer us through drought times, enhanced 

stormwater management to handle those extreme rainfall events 

that the scientists are predicting, increased underground storage of 

water and expansion of water collection systems including pipelines 

and a construction of desalinization projects and a utilization of 

brackish waters. Again, if the definition of waters of the United 

States overly broad, these projects will similarly face increased regulatory burdens. 

In conclusion, western municipalities along with State Governments and the EPA are partners in the implementation of the Act. 

We currently expend enormous financial resources in meeting and 

exceeding water treatment and wastewater discharge requirements. We recognize the value of our water resources. 

We want to diligently work to protect them, including in arid climates as referenced by Arizona. There is no intent to exempt large 

municipal discharges. However, to the extent statutory changes are 

needed, they should not add to Federal oversight, reduce local flexibility, add to infrastructure costs or increase litigation opportunities. 

We certainly stand ready to work with this Committee in forging 

some amendments that will work for all people involved. 

Thank you. 

Mr. OBERSTAR. Thank you, Mr. Pifher. 

I am particularly sensitive to your comments about water-short 

western States. Early last year, this Committee, as one of our first 

pieces of business, moved legislation through the Subcommittee, 

the Full Committee and through the House to provide 

$1,800,000,000 in grant funds to water-scarce States to do exactly 

the things that you were describing. 

108 

Regrettably, as we affectionately call them, the other body, hasn’t 

acted on that bill. If your Senators and others would get going and 

find a way to do something other than appoint ambassadors and 

judges, then we would get on with the critical business of this. 

Mr. PIFHER. We will see what we can do to help. 

Mr. OBERSTAR. I will go to Mr. Bishop to start with. 

Mr. BISHOP. Thank you very much, Mr. Chairman. 

I know Mr. Tierney has a plane to catch, so I will respect that 

and simply say that I have a couple of questions which I would like 

to submit to you in writing and ask you to respond in writing so 

that it may become part of the permanent record. 

I thank you for your testimony, and I thank you for your patience and, most importantly, I thank you for your service to the 

people of New York. We are very fortunate. 

Mr. TIERNEY. Well, thank you. Thank you, Congressman Bishop. 

Mr. OBERSTAR. That is it? 

Mr. BISHOP. I yield back the balance of my time. 

Mr. BOOZMAN. Very good. We need to remember. 

Mr. OBERSTAR. Mr. Boozman. 

Mr. BOOZMAN. Thank you, Mr. Chairman. 

Mr. Tierney, I was in New York earlier last week with a field 

hearing with Mr. Hall, and I want to compliment the State of New 

York. The testimony was excellent. It was just a very, very good 

hearing. I learned a lot. I hope that it was helpful for us to be down 

there and do the hearing. 

I guess my concern is this, in your testimony, you cite that 35, 

or whatever, people joined with the amicus brief, saying that they 

were opposed to rolling back the provisions, okay, prior to the ruling. 

Mr. TIERNEY. Yes, sir. 

Mr. BOOZMAN. In other words, they supported the things that 

were in place. That is fine, but we are not arguing that. We are 

arguing not those provisions. We are arguing the potential provisions for this new legislation. 

Now, in your closing deal, you said, ‘‘This is the guidance the 

States are seeking from Congress, and I believe H.R. 2421, by reaffirming and articulating the original intent of the Clean Water 

Act, frames the Federal wetland and small stream regulation effectively. By clearly defining this issue, the States will be able to, once 

again, with the Federal Government, effectively regulate all connected wetlands and streams.’’ 

But we have had a situation today where the four regulating 

agencies that testified, and you were probably here. I can barely remember it now because it was a while ago, but all of them voiced 

concerns that this was a fairly significant departure from the preRapanos decision. Okay? 

They were basically saying, when you talk about all interstate 

and intrastate waters, they testified that that might include 

groundwater also. They also said that there was no exclusion for 

wastewater treatment in the holding ponds. They also testified that 

it didn’t include prior converted cropland. 

I would submit that those 35, when you talk in those terms, you 

are not going to have 35 people support that for 35 jurisdictions, 

and I guess my concern is that. 

109 

The other thing that you mention in your testimony is that somehow this clears this up. Now I am just a guy from Arkansas, but 

we had four very intelligent people that are regulators. They 

agreed on two things. They agreed that it extended the jurisdiction 

significantly. They also agreed that they were confused, and it 

wasn’t clearing anything up for them. 

We had another panel, the lawyers that were here. Again, we 

had two for, two intelligent guys, two against that made very good 

arguments. We have had the last panel, and now we have you. 

So, again, I just don’t see either one of those things being the 

way it should be. 

Mr. TIERNEY. Okay. I will try and be brief. 

There certainly are a few clarifications that were talked about 

today that are in the EPA and Army Corps regulations which could 

be cited and clear those up, clear up those items. 

The concern I have, I think particularly with Mr. Grumbles’ 

statements, is he wants to keep the term, navigable, in this definition. Now we can go through and work through getting a better 

definition of what is covered if that is what people want. I would 

love to work with you on that. But as soon as you add in the term, 

navigable, then it is the source of all sorts of mischief. 

Mr. BOOZMAN. I understand, but isn’t all inter and intrastate 

water, again excluding the wastewater, doesn’t that bother you a 

bit? 

Mr. TIERNEY. It actually doesn’t. In the State of New York, 

groundwater is a water of the State of New York under our program, but certain other things are not. We regulated groundwater 

because the Federal Government doesn’t do it and as the statute 

doesn’t say groundwater. 

The EPA regulations and the Army Corps regulations didn’t say 

groundwater. It was never understood as being true groundwater 

that would be involved in the program. So that didn’t bother me, 

given 35 years of experience with this had operated. 

Mr. BOOZMAN. So, with your experience, you feel like that this 

takes us just back to pre-Rapanos, no further? 

Mr. TIERNEY. Yes, sir. 

Mr. BOOZMAN. For the Country, not for New York but for the 

Country? 

Mr. TIERNEY. I believe for the Country. The Army Corps and the 

EPA regulations that were passed in 1975 were very broad, and 

those were enacted near the time when the Clean Water Act was 

first passed. That regulatory definition is very similar to what is 

in the draft of the bill right now. 

I just want to emphasize there is a practical hard-headed attribute to this, and it has to do with general permits. Army Corps, 

EPA, the State of New York, other States issue general permits for 

these nonsensical things like people say, well, puddles could be involved. 

The general permits basically could say those are excluded. 

Those aren’t involved. We could define it in a way. Nobody is going 

to call a manure lagoon a water of the United States. I heard somebody say, well, could manure lagoons somehow end up being regulated? 

110 

So the way that those issues, those sort of odd linguistic uncertainties that are involved in anything in the English language, 

could be handled is through these general permits or some clarifications that the Chairman has talked about today. 

Mr. BOOZMAN. I guess, with all due respect, I mean that is your 

opinion, but the problem is the regulators that are going to enforce 

that, they don’t agree with that opinion. 

Mr. TIERNEY. Here is the problem. 

Mr. BOOZMAN. That is a major problem. 

Mr. TIERNEY. If I may, let me pose the problem back to you. If 

somebody right now dumps poison in a dry stream, a dry stream 

bed or in a wetland that is not connected, that won’t flow into a 

stream for a week. A week later, it rains and it flows in. That is 

not regulated under the Clean Water Act under a definition which 

takes away these small headwater streams and wetlands from regulations. Now something else might cover it. 

So I would pose it to you, sir, as the problem on your side where 

at some point that would flow into a stream, whenever it becomes 

a stream and stops being a point source is a very serious problem 

that I don’t think the people who are opposed to this bill have truly 

grappled with the implications of it. 

Mr. BOOZMAN. Okay. So, pre-Rapanos, well, first of all, if there 

is a nexus and all that stuff, and basically there is, that is not necessarily true. You know the statement about dumping in. 

But, again, my concern is that we are hearing lots of arguments 

that there is expansion over the pre-Rapanos. I think if you read 

this literally, and we are talking about the legislation. We are talking about making this law. Then there is a fairly significant expansion. 

The other thing is the best evidence of this thing not clearing 

things up is the testimony that we are getting. 

So, again, I do appreciate your efforts, and I really appreciate the 

work that I saw going on in New York State. Thank you. 

Mr. TIERNEY. I thank you very much, sir. I guess I am going to 

have to run. 

Mr. OBERSTAR. Mr. Tierney, you have a train to catch. 

Mr. TIERNEY. Thank you. 

Mr. OBERSTAR. I just want to say your example was not theoretical. There was an actual case in California, a dry irrigation 

ditch in which a poisonous substance was dumped. It rained substantially a week later. The runoff killed 60,000 fish. 

Thank you very much for your contribution. 

Mr. Salazar. 

Mr. SALAZAR. Thank you, Mr. Chairman. 

I wanted to especially thank Mr. Trout and Mr. Pifher for coming 

all the way from Colorado and being so patient. As you know, that 

is the way Congress works. 

I just have a question for Mr. Trout. I know that you testified 

that under Colorado water law the farmer basically takes possession of the water and it becomes a private property right until it 

is used and returned to the stream. 

With regard to the current legislation, and I know the Chairman 

has alluded to it, that prior converted cropland is excluded. Is that 

what you understand? 

111 

Mr. TROUT. Let me address that in two ways. First of all, to go 

back to the little discussion the Chairman and I had, he is correct 

that there are two exemptions in the current bill and in current 

law that address agriculture. One of them, and this is Section 6.1 

of the bill, provides an exemption from Section 402 for agricultural 

return flows. 

Now, at least our understanding of return flows is what flows off 

the farm after the irrigation has occurred. It is not the water applied to the farm. That is a different thing. So there is an exemption for if a farmer irrigates, it flows into a stream, they do not 

need what we call an NPDES permit. 

The other exemption, which I think the Chairman was referring 

to is Section 3 or Subsection 6.3, which is an exemption under Section 404 of the Act for discharge of dredged and fill materials from 

normal farming, silviculture and ranching activities which we 

make great use of in Colorado. 

But my point is that if the definition is expanded sufficiently to 

cover what currently are not considered to be waters of the United 

States, such as wet meadows that are also irrigated, there is no 

current exemption under the Act for discharges under Section 402. 

There is an exemption for discharges under Section 404. 

So the application of a chemical to a wet meadow, which is also 

an irrigated field, would be regulated and would require a permit. 

We know that from the Talent litigation we had in California a 

number of years ago. 

Now, if the intention of the Committee is to really exempt all agricultural or silvicultural operations, what you would have to do is 

you would have to, in effect, add a Section 402 exemption to what 

is now the 404 exemption. If you did, the concerns that I have expressed really would go away because then, I think, farming operations would have a complete exemption. Other people may have 

a problem with that. 

You mentioned prior converted cropland. As we know, the definition of prior converted cropland, at least in the USDA, the Department of Agriculture regulations, starts at the point that these are 

lands that were wetlands before. A lot of these lands I am talking 

about in Colorado were never wetlands before they were irrigated. 

Because they are irrigated, they may now be wetlands or at least 

a wet meadow. 

So having an exemption for simply prior converted croplands 

does not exempt all of the lands that I am talking about. It probably would exempt some. It might exempt your lands if they are 

right down on the river, but it wouldn’t exempt people’s lands who 

are up from the river and were not historically part of the flood 

plain but are still now a hay meadow. 

Did that answer your question? I am sorry I took so long. 

Mr. SALAZAR. Mr. Chairman, are you amenable to those types of 

amendments? 

Mr. OBERSTAR. The gentleman has described accurately to a 

point, but he does not reflect in his comment that there are situations in current law, in pre-Rapanos/SWANCC law, where there is 

not an exemption for pesticide application. 

My purpose is not to expand it to cover that nor to cover anything or exempt anything that is not already exempted. 

112 

Mr. TROUT. If I may respond, Mr. Chairman, you are absolutely 

correct which is a problem that we, my clients who run irrigation 

ditches have a real issue with in the sense that complying with 

that is difficult to control things. 

But my point is that if you expand the definition of what is a 

water of the United States to cover what are traditionally considered to be irrigated croplands, then you are triggering a discharge 

permit. 

Mr. OBERSTAR. But the law cannot be internally contradictory. If 

we exempt something and you think there is broader language that 

provides broader application, the broader application cannot override the very clear, specific exemption. 

Mr. TROUT. Well, that is correct. 

I guess what I am suggesting is if you want to address the problems that other witnesses have described but still provide an exemption for agricultural activities and address these other issues 

by expanding the general definition of waters of the United States 

but still not put undue burdens on agriculture, you may have to 

extend the 402. 

Mr. OBERSTAR. You provide some language for us, at my invitation, that does this without curtailing the current Clean Water Act 

nor expanding its application. 

Mr. TROUT. I certainly will try to do that. I will work with Congressman Salazar to do so. Thank you very much. 

Mr. OBERSTAR. Okay. 

Mr. SALAZAR. Thank you, Mr. Chairman. Could I just take a 

minute? 

Mr. Pifher, I know that we have talked a lot about the NEPA 

compliance concerns of new water projects. Can you expand on that 

a little bit? 

Also, I would like you to address the issue of interstate water 

compacts. Is there going to be any effect from this legislation as it 

currently stands on interstate water compacts? 

Mr. PIFHER. Relative to NEPA compliance, Representative 

Salazar, a concern would be that if you have a project. As an example, Aurora is currently constructing a recycling-reuse project that 

has been widely praised including by the environmental community 

at a cost to its ratepayers of $750 million, but it includes a 34-mile 

delivery pipeline to pipe back to the city, return flows that have 

gone through reclamation and treatment. 

In the permitting of that project, we redesigned the project time 

and time again to try to avoid crossing waters of the United States 

and wetlands, and we microtunneled to avoid waters of the United 

States and wetlands. But when all was said and done, there were 

four or five instances where we just couldn’t avoid that without 

great expense and difficulty including crossing ditches, irrigation 

ditches. Therefore, we went to the Corps of Engineers and said, we 

would like a nationwide permit, but we do not want to trigger 

NEPA review. 

They said, well, in light of the fact it is a 34-mile pipeline, it is 

a long corridor, and you only have four or five small crossings, that 

will not trigger NEPA review. It won’t federalize the project. 

But if you had to have a jurisdictional determination and there 

was a jurisdictional determination on numerous such crossings, the 

113 

NEPA process would be triggered. You would wind up undoubtedly 

spending millions of additional dollars and two or three additional 

years going through that process in order to bring on that water 

delivery system which, in our case, was critical to get online because our storage after the 2002 drought had dropped to 25 percent. It was a critical need. 

So that is an example under NEPA. 

As far as interstate compacts, that is a very difficult question. I 

guess one concern would be when you talk about the full reach of 

Congress under the Constitution and all activities that may affect 

waters. You could have situations where you have water bodies 

covered by interstate compacts like the Colorado or the Arkansas, 

for example, where the downstream State would look at activities 

in the upstream State that could cause some water quality degradation in the downstream State and therefore object to that activity. 

That could include water diversion activities in the upstream 

State that simply remove flow from the river and therefore deplete 

flows that the downstream State believes are necessary to support 

some of its designated beneficial uses like aquatic life. That would 

lead to interstate friction. 

So I don’t think it is unresolvable, but it is something we need 

to think through. 

Mr. SALAZAR. Thank you, Mr. Chairman. I yield back. 

Mr. OBERSTAR. I appreciate the gentleman’s comments and the 

responses. 

Mrs. Napolitano. 

Mrs. NAPOLITANO. Mr. Chair, I think the questions that I have 

deal more with recycled water and drugs in water, pharmaceuticals 

in potable water, those kinds of areas. 

But I am very much interested in how some of those laws affect 

the State of California and the western States simply because there 

is going to be an increase in need of additional water, whether it 

is recycled, reused, farm water putting back to use, drainage ditch 

water. I think we are going to have to look for every puddle to be 

able to ensure that we do have water for the future, for economic 

reasons as well as for reasons of health. 

I am very much in tune with some of the issues you bring up, 

but in the end I think maybe we sometimes make a mountain out 

of a molehill in trying to add to an already existing issue. Sometimes I am finding out that the attorneys are the ones who benefit 

more out of the litigation—sorry, sir—than the benefit to the users 

and to the end result which would be the delivery of potable water 

to the people that need it, for agricultural uses also. 

So I would consider being able to understand what impacts or 

what loopholes or what language there would be that would tie 

some of this up that does not allow for the abuse in the future if 

this bill goes through with amendments that might necessary. So, 

if anybody has a comment to that, I would like to hear it, especially 

by the attorneys. 

Mr. TROUT. As you can tell, my comments are aimed primarily 

at agricultural issues. Certainly, the people that I work with share 

your concern about pharmaceuticals in water. The big irrigation 

114 

district that I work with is now discussing whether we would start 

testing for such things. 

I guess on a personal attorney’s note, I would disagree with you 

about sort of characterization of the statute. The common joke 

among the people I work with, attorneys and scientists who work 

on this, is that if this bill passes it will put our kids through college 

because we think it will actually cause more controversy and more 

litigation as the Federal Government pushes the limits of the Congress’ constitutional authority. That, I think we have seen from the 

Supreme Court’s opinions. 

The Supreme Court didn’t view it that way when it interpreted 

the statute. It viewed that it was interpreting the statute as written and didn’t have to get to the constitutional issues. So, if we 

have to litigate on constitutional issues, it probably won’t be me, 

but that is the view of it kind of in the trenches of the people who 

look at this. 

Mrs. NAPOLITANO. How do we avoid that? 

Mr. TROUT. I am not a Republican by the way. I would call myself a conservative Democrat, but I will give you my conservative 

response which is maybe wait a year or two and see how the current regulations work out. I mean we all agree, I think, that the 

Supreme Court did nobody favors in the Rapanos case. They really 

created the muddle, but that is not the first time the Supreme 

Court has done that. 

Give the Administration, the current one and perhaps the next 

one, some opportunities to try to work through that rather than 

create new legislation which really adds a full layer, again, of complexity on it. That is the view of a conservative lawyer. 

Mrs. NAPOLITANO. But wouldn’t it be also true that if this bill 

were to be enacted, that that might conceivably be then reinterpreted by the Supreme Court? 

Mr. TROUT. Oh, I guess I have no doubt that if this bill was enacted the Supreme Court would read and then decide what is Congress’ constitutional limit and assertable authority. 

Mrs. NAPOLITANO. Wouldn’t that then preclude some of the filings to be able to challenge it? 

Mr. TROUT. Litigation is not that general. I guess I would put it 

that way. 

Mrs. NAPOLITANO. That is being simplistic, I know. 

Mr. TROUT. You are right. In 30, 40 years, probably you are correct. 

But, as you know, in our world, things get decided on a case by 

case basis. You get one decision like the SWANCC decision which 

was limited specifically to the Migratory Bird Rule. There are 

many other sources of Federal jurisdiction over waters. So you 

would have to have a series of decisions over time to build up a 

body of law. 

Mrs. NAPOLITANO. Which brings me then to my statement originally which is how do we close those loopholes? How do we address 

the issues? I don’t mean for every single one but to be able to have 

the intent of the law be actually carried as a protector of human 

beings and essential to agriculture and the economy. 

Mr. TROUT. I will be honest. At this point, I don’t have an answer 

for you. Sorry. 

115 

Mrs. NAPOLITANO. Thank you, Mr. Chair. I yield back. 

Mr. OBERSTAR. Ms. Hirono. 

Ms. HIRONO. I just have a short comment. 

Mr. Trout, great name, by the way. You said that maybe what 

we should be doing is letting the guidance take place, and there 

have been some thousands of cases that have already gone through 

the process, I suppose, using that guidance. 

But my concern is that those provisions really flow from very 

confusing Supreme Court decisions. That is why I asked the first 

panel. 

I think it is up to Congress to try and lay out the law as clearly 

as possible, avoiding unintended consequences, because it is the 

privy of the courts to then interpret our statutes, not the other way 

around. And so, Congress often comes in, disagreeing with what 

the Court has done and provides the kind of clarity. 

So I am not so sure that what we should be doing is waiting a 

couple of years for guidance that really put in play court decisions 

that did not provide the kind of clarity that we want. I don’t know 

that that is what we ought to be doing either. 

It is more a comment than a question. 

Mr. TROUT. Okay. That is certainly your prerogative. 

Ms. HIRONO. Thank you, Mr. Chairman. 

Mr. OBERSTAR. Mr. Carney. 

Mr. CARNEY. No questions at this time. Thank you, Mr. Chairman. 

Mr. OBERSTAR. I have a question for Ms. Card and appreciation 

for your testimony and for the strong position of your governor in 

a very lucid statement in support of the introduced bill. 

We have information from EPA that certain publicly-owned 

treatment works, POTWs, Section 402 agencies in Arizona are petitioning that they are no longer covered by the Clean Water Act, 

submitting statements to EPA saying they are no longer covered as 

a result of the Court cases. 

You said that Arizona is prohibited by State law from filling the 

gap left behind by pulling back on the law as a result of the 

Rapanos decision. How will Arizona then be able to address those 

facilities if the Clean Water Act doesn’t cover, if the State Government can’t do any better than current law and current law now has 

been downrated by the Court case? 

Ms. CARD. Yes, Mr. Chairman, I am familiar with what you are 

referencing. As I said in my testimony, my agency would no longer 

be able to protect the stream for aquatic life uses, for agricultural 

irrigation, for livestock watering. With respect to some pollutants, 

livestock watering has more stringent health-based standards than 

drinking water does. So it would create a tremendous gap potentially for huge discharges of wastewater. 

Mr. OBERSTAR. And the State won’t be able to protect its citizens 

as it has been doing up until now? 

Ms. CARD. No under current State law, that is correct. 

Mr. OBERSTAR. That is a very serious gap. 

You have heard the discussion. You have sat here intently, listening all day about retaining the language in the Clean Water Act 

where it appears referencing navigable waters of the United States, 

retaining it but accompanying that, tying to it—I have said, rivVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00137 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
116 

eting to it—the regulatory practices so that we spell out what has 

been in place prior to the two Court decisions to assure that there 

is clarity and continuity and no expansion nor retraction of the 

Clean Water Act. 

What would be your reaction to that? 

Ms. CARD. Well, Mr. Chairman, I agree that some useful points 

have been made at this hearing which, of course, is the point of the 

hearing and the legislative process itself. 

With respect to the navigability test and the concerns I have 

raised in my statement about ephemeral and intermittent streams 

and headwaters streams protection, the navigability test is not 

helpful in Arizona. As I mentioned, 96 percent of our waters are 

nonperennial. According to the Corps, our only navigable water is 

the Colorado River, and our headwaters streams are in some cases 

200 miles from the Colorado River. 

In the Rapanos case, Justice Kennedy wrestled with a 10-mile 

difference between waters, and so the navigability test has not 

served us well or potentially will not serve us well under the 

Rapanos decision. 

The Clean Water Act, prior to the Rapanos decision, served us 

very well. We have a 1975 Arizona Federal District Court opinion 

in which the judge said, dry arroyos are tributaries of navigable 

waters, period, and discharges of toxic mine waste require permits 

under the Clean Water Act even if it is to a dry arroyo which, of 

course, is non-navigable. 

So, with respect to toxic discharges to dry streams in Arizona, 

that has been long settled and undisputed and noncontroversial. 

The problem with the Rapanos decision and guidance is it potentially turns that on its head. 

Mr. OBERSTAR. Can you craft language to establish or retain that 

pre-Rapanos authority for Arizona and similar States? 

Ms. CARD. Well, again, if it is clear in the Act that intermittent 

and ephemeral and headwaters streams are protected, I think 

there is probably more than one way to do that in this legislation. 

Mr. OBERSTAR. Would you provide some language for the Committee? 

Ms. CARD. I would be happy to wrestle with that. 

Mr. OBERSTAR. Thank you. 

Mr. Boozman. 

Mr. BOOZMAN. Mr. Chairman, just for a second, if you don’t 

mind. 

I was just curious, Ms. Card. Is that by State constitution that 

the law is such that it can’t supersede the Clean Water Act? 

Ms. CARD. Mr. Chairman and Congressman, no, that is State 

statute. 

Mr. BOOZMAN. I guess the obvious question is why? Why don’t 

you change the law? 

Ms. CARD. Because I am not the Arizona Legislature, and I can’t 

speak for them. 

Mr. BOOZMAN. What is your opinion as to why they can’t change 

the law? 

Ms. CARD. Well, I don’t think it has been presented to them yet, 

and I can certainly imagine the potential for me to be making this 

same plea at the Arizona Legislature. 

117 

We think the problem is immediate. It needs to be addressed 

now, and that it is properly addressed by the Federal Government. 

Just because Arizona is an arid State doesn’t mean we are deserving or in need of less protection from pollution than wet States. 

Mr. BOOZMAN. Do you think your legislators would be upset if 

they had the possibility of all interstate and all intrastate and possibly groundwater being controlled? 

Ms. CARD. Mr. Chairman and Congressman, again, I can’t speak 

for them. I know that the bill has been controversial, and I am sure 

there are members of the Arizona Legislature who would be concerned. 

Mr. BOOZMAN. Good. Thank you. Thank you for testimony. I 

thank all of you very much. 

Ms. CARD. You are welcome. 

Mr. OBERSTAR. I want to thank this panel for their contributions, 

and I look forward to submissions as the Chair has requested. 

Thank you for being here with us for this very long day. 

Our next panel: Mr. Tim Recker, the Iowa Corn Growers; Mr. 

Carl Shaffer for the Pennsylvania Farm Bureau; Mr. Harold Quinn 

for the National Mining Association; Mr. Darrell Gerber, the Clean 

Water Action Alliance of Minnesota; and Ms. Linda Runbeck for 

the American Property Coalition in Minnesota. 

To this panel, again, my apologies that the interventions of the 

votes this afternoon have stretched out the hearing time. But, as 

you can tell and you have sat here very patiently, listening, you are 

the best informed panelists. You have heard everything, and you 

have seen this is a very intensely debated subject with very strong 

feelings. 

It has been a productive day, and you are adding to it. We look 

forward to hearing from you. 

Mr. Recker. 

TESTIMONY OF TIM RECKER, IOWA CORN GROWERS; CARL 

SHAFFER, PRESIDENT PENNSYLVANIA FARM BUREAU; HAROLD P. QUINN, JR., SENIOR VICE PRESIDENT, LEGAL AND 

REGULATORY AFFAIRS, NATIONAL MINING ASSOCIATION; 

DARRELL GERBER, CLEAN WATER ACTION ALLIANCE OF 

MINNESOTA; AND LINDA RUNBECK, AMERICAN PROPERTY 

COALITION. 

Mr. RECKER. Thank you, Mr. Chairman, and it has been a productive day for an Iowa farm boy to come and listen to this kind 

of good discussion on water quality. It has been informative. 

Mr. Chairman and Members of the Committee, thank you for the 

opportunity to testify today on the legislative hearing of the H.R. 

2421, the Clean Water Restoration Act. I ask that my statement 

be recorded for the hearing. 

Mr. OBERSTAR. All statements will be included in full in the 

record. 

Mr. RECKER. Thank you. 

My name is Tim Recker. I am President of the Iowa Corn Growers. I am from Arlington, Iowa, where I grow corn and soybeans. 

I operate a wean to finish livestock operation. 

In addition to farming with my brother, I actually own an excavating business and do farm drainage, and it is quite the contrary 

118 

of all the talk we have had here today about irrigating. We actually, in Iowa, have to drain the excess water out. So I would love 

to build that pipeline to the people who need that water and put 

a meter on it. 

Before addressing the issue at hand, though, I would like to first 

sincerely thank the Committee for the hard work and devotion to 

the completion of the Water Resources Development Act, WRDA. 

WRDA 2007 authorizes critical projects and inland waterways including the modernization of seven locks along the upper Mississippi River, which I am very close to, and the Illinois River, a 

project that will dramatically the ability to deliver crops to the 

global marketplace. 

Last year marked the largest corn crop in history. However, it 

is not just about growing more corn. It is about how we grow it. 

On our farm, we are always looking at problems and trying to find 

out new ways to address soil quality, cleaner water, improvement 

in production and profitability. We are farming sustainability. 

All across the Country, corn farmers are involved in numerous 

State, local and national programs, programs that complement the 

goals of the Clean Water Act by protecting environmentally sensitive land from crop production and encouraging other on-farm 

conservation methods. 

For example, the Farm Bill conservation program has recognized 

unique abilities and the limitations of farmers. As a result, we are 

making important environmental gains using voluntary and, I will 

stress, locally led incentive-based programs to reduce soil erosion, 

improve water quality and increase wildlife habitat. 

Corn growers believe that H.R. 2421 would fundamentally alter 

the longstanding appropriate and beneficial use of the term, navigable. This proposed legislation expands the regulatory authority of 

the U.S. Environmental Protection Agency, the U.S. Corps of Engineers in all interstate waters, essentially all wet areas within the 

State including impoundments, groundwater, ditches, pipes, 

streets, gutters and so on. 

Additionally, it grants EPA and the Corps authority to regulate 

virtually all activities, private and public, that may affect the waters of the United States, regardless of whether that activity is occurring in or what it may impact the water at all. 

Likewise, 2421 would create significant new administrative responsibilities without fully analyzing the implementation of funding of such requirements. 

The backlog permits has been estimated between fifteen and 

twenty thousand with a time lapse of several years. So I ask the 

Committee, how would they address the needs of a regulated community when the already significant delays of today turn into massive delays of tomorrow? 

We are concerned that H.R. 2421 would eliminate the existing 

regulatory limitations authorized by both Democrat and Republican 

administrations, allowing common sense uses such as prior converted cropland and waste treatment systems. Furthermore, the 

savings clause does not exempt anything from the broad definition 

of waters of the United States nor does it capture exemptions found 

in statutory definitions such as agriculture stormwater exemption. 

119 

Not all agricultural activities enjoy the benefit of an explicit statutory exemption. For example, pesticide use is not covered by the 

explicit statutory exemption. This extremely important agriculture 

production activity can involve the deposit or unintended drift of 

pesticides into areas deemed to be waters of the United States. 

Similarly, the application of fertilizer and other vital farming activities may incidentally add material to the waters of the United 

States and are not exempted by statute or addressed in the savings 

clause. 

Despite our opposition to 2421, we do agree that regulatory clarity must be achieved. The Supreme Court recommended that regulatory action consistent with its decision in Rapanos be conducted. 

While Congress can always change laws, we note that the Supreme 

Court did not cite in Rapanos a need for new legislative meaning 

being given to the Clean Water Act jurisdictional waters in order 

for such regulatory action to be successful. 

In our view, the job of Congress should now be to force the Corps 

and EPA to follow through on the Supreme Court recommendations 

to conduct a formal rulemaking, allowing all affected parties to contribute to the process which would have a goal of establishing clear 

Federal jurisdiction under the Clean Water Act. 

In conclusion, corn growers urge you to recognize the significant 

problems that H.R. 2421 would create if enacted and thoroughly 

analyze and discuss the consequences of this legislation before 

moving forward. As it is currently written, we have no choice but 

to oppose H.R. 2421. 

Mr. Chairman, Members, thank you for the opportunity to testify 

at this late time. 

Mr. OBERSTAR. Thank you, Mr. Recker. 

This is not really late for this Committee. We go much later. 

Mr. Shaffer. 

Mr. SHAFFER. Thank you, Mr. Chairman. 

Mr. Chairman and Members of the Committee, my name is Carl 

Shaffer. I own a farm in Columbia County, Pennsylvania, where I 

raise green beans, corn and wheat. 

As President of the Pennsylvania Farm Bureau and a member of 

the American Farm Bureau Federation Board of Directors, I am 

pleased to offer this testimony on behalf of over 42,000 rural and 

farm family members of the Pennsylvania Farm Bureau. The policy 

positions I will discuss and those included in my written testimony 

are shared by more than six million members of the American 

Farm Bureau Federation. 

Mr. Chairman, farmers are no nonsense folks who understand 

that words matter. It is clear to us that Congress intended to use 

the term, navigable waters, when it passed the Clean Water Act in 

1972. 

The bill we are discussing today deletes the term, navigable waters, and deleting this term expands—it does not restore—the scope 

of Federal regulation. This bill would sweep many agricultural activities into the scope of Federal regulation simply because these 

activities would occur near some isolated ditch that would be 

deemed at water of the United States. Furthermore, prior converted croplands would be classified as Federally-regulated wetlands. 

120 

If that is the case, I would be required to get a Federal permit 

to grow crops on land that I have been farming for three decades. 

Surely, there are more productive ways to spend America’s tax dollars. 

Pennsylvania has more than 83,000 miles of rivers and streams, 

most of which are State waters. This legislation would require a 

substantial increase in funding for the Corps of Engineers. This bill 

is a call for bigger government. 

How, under the current budget deficit, does Congress intend to 

pay for additional regulatory enforcement or will more unfunded 

mandates be passed on to local municipalities to monitor and regulate Federal waters? 

In Pennsylvania, stream health and aquatic rebirth are improving each year. One of our largest dairy farms in the State is a favorite trout fishing location of former President Jimmy Carter. 

Spruce Creek, with its high quality cold water fishery designation 

is an example of the environmental stewardship and success already in place through agricultural practices. 

Next week, 16 Pennsylvania streams in 11 different counties will 

be adopted as wilderness trout streams. Wild trout are an excellent 

indicator of water quality and stream health. 

In the 1980s, Pennsylvania gained more than 4,600 acres of wetlands within the Chesapeake Bay Watershed. The State’s Department of Environmental Protection showed an increase of 2,500 

acres of wetlands from 2000 to 2006. Today, more than 400,000 

acres of wetlands are found through the Commonwealth. 

Each year, the Keystone State has seen an increase in voluntary 

nutrient management planning from fewer than 2,000 acres in the 

early 1990s to 1.3 million acres today. Farmers are already good 

stewards of the land and the water without a Federal mandate. 

Moreover Pennsylvania’s State Conservation Commission implemented the dirt and gravel road program to reduce erosion and 

sediment pollution. The program is based on the principle that an 

informed and empowered local effort is the most effective way to 

curb pollution. This effort stabilized more than 1 quarter of a million square feet of streams at more than 1,500 sites across the 

Commonwealth since 1997. 

Federal jurisdiction over these small streams would only complicate an already successful program. Pennsylvania successfully 

monitors and regulates water quality through more than a dozen 

laws, regulations and initiatives, some of which are outlined in my 

written testimony. 

In December of 2007, I co-wrote an editorial with Secretary 

Kathleen McGinty of the Pennsylvania Department of Environmental Protection, discussing State regulatory requirements that 

are effective for our unique geographic location. Imposing a one 

size fits all regulation over 50 States will nullify or complicate productive State efforts like the in Pennsylvania. 

In January, DEP Deputy Secretary Cathleen Myers noted, 

‘‘Pennsylvania’s Chesapeake Bay Compliance Plan requires 25 million pounds of nutrient reduction from our farmlands, nearly 5 

times the reduction required of our sewage treatment plants. Pennsylvania farmers are rising to the challenge, laying claim to more 

121 

than half of all the nitrogen reductions made by farmers in the 

multistate watershed.’’ 

Farmers and ranchers across the Country are already working 

with State officials to meet water quality requirements. Adding the 

Corp of Engineers or the EPA to the existing regulatory equation 

is simply not an option. For these reasons, we oppose H.R. 2421 

and urge that it not be approved by the Committee. 

We very much appreciate your interest on this issue and the opportunity to submit this testimony. Thank you very much. 

Mr. OBERSTAR. Thank you very much for your presentation. 

Did you say that Pennsylvania farmers are accounting for half of 

the 25 million pound reduction in nutrients? 

Mr. SHAFFER. In the Chesapeake Bay Watershed. 

Mr. OBERSTAR. Pennsylvania farmers alone are accounting for 

that? 

Mr. SHAFFER. Yes, yes, of the multistate watershed. 

Mr. OBERSTAR. That is an enormous contribution. 

Mr. SHAFFER. And it has been done, I am proud to say, through 

a lot of voluntary programs that we have actually implemented and 

started on our own in Pennsylvania as farmers of the State, the 

Keystone State. 

Mr. OBERSTAR. Much of the problem, more than 70 percent of the 

problem in the Chesapeake Bay is upland runoff in Maryland, 

Delaware, West Virginia and Pennsylvania. If you have made that 

contribution, that is very, very significant. Compliments. 

I also thank you for the testimony from the Farm Bureau. 

Last year, I invited the Farm Bureau to testify at our hearings, 

and the president chose not to. I invited your national legislative 

director; he chose not to testify. Happily, Kevin Papp, President of 

our Minnesota Farm Bureau did testify. 

I will have some follow-up questions for you later. 

Mr. SHAFFER. Thank you. 

Mr. OBERSTAR. Thank you. 

Mr. Quinn. 

Mr. QUINN. Thank you, Mr. Chairman, Members of the Committee. We appreciate the invitation to be here and share our views 

on the legislation. 

My name is Hal Quinn, and I am appearing on behalf of the National Mining Association. 

I know it has been a long day for all of you, and you have already heard ample testimony on the question of whether this legislation. 

Mr. OBERSTAR. We haven’t heard everything, though. 

Mr. QUINN. On the question of whether it changes or restores the 

original intent or changes the intent, I don’t believe I am going to 

add to that well today. We will stand on our written submission on 

that question, which we would agree with the viewpoints of those 

who expressed earlier that we believe it would change the intent 

that we see from at least the text and the structure of the statute. 

But I think what we heard earlier today is that clearly the legislation, if enacted, would change the status quo as we know it at 

this moment. In that regard, I just wanted to address two concerns. 

First, if it does change the status quo as we know it today, what 

will the effect be on existing businesses and landowners who have 

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made investments, planned activities and taken action on those activities under a different understanding of the law than might appear in this legislation if enacted? 

Will those investments be protected? Will they be grandfathered? 

How will those situations be accommodated and can they be accommodated under the law? 

Second and probably more important to us today is if it does 

change the status quo, we will certainly see greater pressures 

placed on the existing permitting infrastructure under the Clean 

Water Act program. In that regard, we have already seen an overburdened system that, because of delays in terms of obtaining reasonable decisions in reasonable timeframes, erodes confidence in 

the process and is simply unresponsive to the demands placed on 

the program. 

The permitting system is expensive and is protracted. In terms 

of expense, the expense is not that simply in terms of gathering the 

data and submitting an application. Also the more significant cost, 

particularly to capital-intensive industries like the ones I represent, comes from the delays in obtaining permissions and authorizations to proceed. 

For every delay in receiving those authorizations or permits, we 

lose net present value in our investment because our return on 

that capital is deferred, our employees are idled and, at that point 

in time, we have to reconsider. Both investors and others have to 

reconsider where they deploy their risk capital in terms of not only 

this Country but in other countries as well if they present a lower 

regulatory risk. 

Now assuring a responsive permitting system requires substantial investment of public resources just to meet the current demands on that process, let alone ones that might be increased or 

engendered by changes in the law. In addition to providing more 

resources, we think that system, the permitting system can be improved and become more efficient by identifying and seizing upon 

opportunities for permitting efficiencies. 

One of the goals of the Clean Water Act that is often overlooked 

is to prevent needless duplication and unnecessary delays. We believe there are opportunities that exist where there are other overarching environmental laws and regulatory programs that already 

require certain industries or businesses to examine and address the 

effect of their activities on water resources. 

We have provided as part of our testimony at least two examples 

of where we think this duplication exists, and as a consequence 

there are opportunities to coordinate those particular programs better so that we can avoid needless delay and duplication of trying 

to protect the same resource by collecting data, the same data different ways but really for the same purpose. 

I bring with me today, and I apologize for the size of the exhibit, 

Mr. Chairman, but this is a photograph of a permit application put 

together three years ago for a coal mine in Congressman Rahall’s 

district. This is a combination of what we call our SMCRA, surface 

mining and reclamation, permit that has extensive data and analysis on the impact of our operations on both surface and groundwater in the surrounding watershed as well as the Clean Water 

123 

Act 402 permit and the Section 404 permit and the State 401 water 

quality certification. 

I can assure you there are a number of items within these binders and data that are duplicative. Perhaps if these programs are 

coordinated, we could be relying on certain data and certain decisions made by certain regulators for the purposes of making decisions under other programs. 

As you can see from the size of this, just moving these permits 

around is an occupation hazard in itself, but this is just to point 

out that we think there are opportunities to make the process more 

responsive to the regulated, not maybe in all cases but in certain 

cases. 

Let me just conclude with the observation, we know that this legislation is motivated by the desire to restore and maintain the integrity of the waters of our Nation, and we share that goal. We just 

question whether before we proceed to expand the law’s reach, 

whether greater attention ought to be brought first, and the greatest threat to that goal might be a nonresponsive and inflexible permitting system that is incapable of bringing reasonable decisions in 

reasonable timeframes to the people who are subjected to the law. 

I thank you again for your attention to this matter at this late 

hour. 

Mr. OBERSTAR. Thank you very much, Mr. Quinn. I appreciate 

that graphic you presented. I will come back to that in a moment 

after the other testimony. 

Mr. Gerber. 

Mr. GERBER. Thank you, Chairman Oberstar and Members of the 

Committee for inviting me to testify before you today and also for 

sticking around so long and bearing with us all. 

My name is Darrel Gerber. I am the Program Coordinator for 

Clean Water Action Alliance out of the Minneapolis, Minnesota office. We are the largest membership-based environmental organization in the State. We are also a part of Clean Water Action, a national organization with over a million members. 

Our primary mission is to ensure that we have clean and safe 

water now and into generations to come. We do this by organizing. 

Whether it is people at the grassroots level, coalitions or broader 

campaigns, we organize to protect people’s environment, health, 

economic well-being and community quality of life. 

The Clean Water Restoration Act has been a priority issue for 

Clean Water Action’s grassroots policy and mobilization campaign 

since it was first introduced. Since then, our members have sent 

hundreds of thousands of communications to Congress, asking or 

actually urging for passage of the Clean Water Restoration Act. In 

our work with over a million members in more than 20 States, people tell us that passing the Clean Water Restoration Act is the 

right thing to do. 

Today’s hearing is a critical junction for the Clean Water Act. 

The important question before you today is do we want to throw 

out 35 years worth of progress in cleaning up our waters or do we 

want to continue working to make our waters fishable, swimmable 

and drinkable? 

The people we talk to across the County and even those in independent polls resoundingly state the cleanup must move forward. 

124 

Unfortunately, through the actions of the Supreme Court, the 

EPA and the Corps, we are moving backwards. Fifty-nine percent 

of the waters nationally are at risk of losing protection under the 

Clean Water Act. EPA’s own estimates show that drinking water 

sources for over 110 million people are at risk to pollution due to 

the reduction in waters covered by the Clean Water Act. 

Protections for our waters are being eroded by Federal policies 

put in place since 2003 in response to several Supreme Court decisions. The Supreme Court in SWANCC and Rapanos misread the 

law and congressional intent as to what waters should be protected. This, coupled with the lack of clear consensus offered by the 

split Rapanos decision, a decision in which there was no majority 

opinion on waters covered and, even worse, where the opinion of 

a single justice with no other concurring justices has often been interpreted to carry the day. 

Besides that, the test that Justice Kennedy created, the significant nexus test, offers no clarity as to what waters the Clean 

Water Act covers. 

Recent EPA and Corps policies and guidance have created an 

even further fog of confusion and have gone beyond what the Supreme Court ruled in order to restrict even further the Clean 

Water Act coverage. An example of this fog of confusion is a lake 

in western Minnesota. There, the confusion over what the Clean 

Water Act protects led to an obviously incorrect determination by 

field Corps staff. 

If you go about 35 miles east of Fargo, North Dakota, which is 

on the western border of Minnesota, along Highway 10 you get to 

Boyer Lake. This is a 310-acre lake, has a public boat ramp on the 

north side and is a popular fishing lake where you can get bass, 

bluegill, northern pike and walleye. The Minnesota DNR periodically stocks the lake with hundreds of thousands of walleye, yet 

this lake was found to not fall under the scope of the Clean Water 

Act. 

Quick actions fortunately led to a reversal of this decision, but 

the fact that it occurred at all indicates that there are clearly problems on the ground trying to determine what the new EPA and 

Corps policies mean. The reversal is good news for Boyer Lake, but 

at the same time the Corps is still trying to determine if the Clean 

Water Act programs apply to Bah Lakes, a similar lake only 85 

miles away. 

We have already heard about the impacts of flooding around 

other parts of the Country, and Minnesota of course is no stranger. 

Whether tragic like those in the southeastern part of the State last 

fall or not, they generally prove to be devastating to those who live, 

work or own property nearby. 

There were also other severe droughts across the Country last 

year. Lake Lanier in Georgia dropped to astonishingly low levels. 

Lake Superior, up by us, was lower than it has been seen forever. 

Parts of the West have also experienced extended multiyear 

droughts. 

What we are learning about the impacts of global warming is 

that we can expect this to occur even more. Global warming 

changes our water cycles which will contribute to more intense and 

heavy rainfalls and deeper droughts. We also know that many of 

125 

the hydrological features now excluded or threatened to be excluded from protection are the very same natural features most 

necessary to lessen the impacts from this flooding and drought. 

Clean Water Action members know that restoring protection for 

all of our waters is important and look to Congress to take action 

by passing the Clean Water Restoration Act. Now, more than ever, 

we need Federal water protections that meet the original goals of 

the Clean Water Act to ensure that our water is fishable, swimmable and drinkable. 

Thirty years from now, we want to be able to look back on this 

day and this time and be able to say Congress stopped the erosion 

of clean water protections and got back to the important business 

of restoring and maintaining clean water for all. 

Mr. OBERSTAR. Thank you, Mr. Gerber. We greatly appreciate 

your testimony. 

Ms. Runbeck, thank you for your patience throughout this long 

day. 

Ms. RUNBECK. Well, thank you, Mr. Chairman, for the invitation 

and the opportunity to present on the Clean Water Restoration Act. 

I certainly admire your stamina. You have undertaken many, many 

complex issues in this current session and are doing a wonderful 

job. 

But, yes, my name is Linda Runbeck, and I am with the American Property Coalition. I am also a former State Senator from 

Minnesota. 

For the benefit of those who don’t know some of our activities, 

we have been out doing workshops and town hall meetings about 

the Clean Water Restoration Act and informing people about what 

it proposes to do, and so I am here to express really the concerns 

of sort of average middle Americans about this bill. 

These are the people that have most of their net worth tied up 

in lakes and lots and land and homes and acres, and so they do 

fear that this bill is a direct threat to them. I have to agree. I believe that it is. 

Certainly, they will pay and pay dearly. They are going to pay 

in lost values. They are going to pay in lost production capacity. 

They are going to pay in excessive legal fees to protect their right 

to use their land as they see fit. 

Keep in mind, these are not people that have staffs of lawyers, 

for the most part. They don’t comb through the specs and the regs. 

So these are people like most of us. 

I encourage you, as you put this legislation together, to please 

consider average Americans and to take a look at how this will affect them. Perhaps it is time to put a few words pertaining to education, pertaining to training and technical assistance. I think certainly after all these years of the Clean Water Act, it is time to 

take a little friendlier attitude towards the people that it regulates, 

especially now if it is going to be far more expanded and the regulators as well. 

But I do believe the bill has morphed into a national land use 

control act, and that is certainly a result of the words, activities affecting these waters. Everything and every body exists in a watershed, and therefore there isn’t much that escapes this law. It cerVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00147 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
126 

tainly does expand government’s reach far beyond the physical 

boundaries of water bodies and buffers. 

I think it is important to realize that an activity does not have 

to take place in water in order for it to be regulated. I think it is 

also important to think about the fact that waters can be affected 

directly or indirectly. I don’t know that those words have been 

talked about too much, but certainly then an activity that takes 

place on a hilltop or a mountaintop 25 miles from a water could 

very much be under regulation, and the Federal Government would 

and could stop those activities. So I think there are very real concerns. 

We did provide a map, and I guess those are on the overheads, 

just to show sort of illustratively the difference between the existing law and H.R. 2421. As you can see, H.R. 2421 becomes virtual, 

total control by the Federal Government, and that has been pretty 

well covered today, I would say. 

We have heard a lot about the confusion in the law, and I would 

just add that certainly what it means for those, again, who are regulated is that the line, the certainty that they are hoping for in the 

statute is absent. I think what a vague law means, and hopefully 

Congress will not pass such a law, is that the litigators representing various special interests are going to use their citizen 

lawsuit opportunity and forcibly expand and broaden the scope of 

the Act. 

So there is too much that can happen after it leaves your hands, 

and we would urge you not to allow that to be. 

Just a real quick point on how I think the bill destroys incentives 

for those people who love habitat and have wanted to create wetlands. We have a lot of those folks in Minnesota. I think what we 

will find and we are finding, in fact, is that activity is fraught now 

with catch-22s and enormous costs that pretty much then discourage anybody from thinking about creating a wetland habitat. 

We have seen polls over the last few months that show that 

there is very little public support for expanding the Federal Government’s control over land and waters, and I will just cite the National Center for Public Policy Research, a very nice piece of polling. They gave very explicit descriptions of the pros and the cons, 

and yet 54 percent of Americans, we could say if we extrapolate, 

said that they would oppose this bill. 

You look regionally and find out that in New England, 58 percent 

oppose it; in the Farm Belt, 59 percent oppose it; in the mountain 

States, 62 percent would oppose it. 

I think the poll is one thing, but I think most people do not realize that the Federal Government is actually considering regulating 

nearly dry land, and this is an example. This is from Kanabec 

County in Minnesota, and this is a wetland. This gentleman is 

spending $160,000 to date to do some. He wants to put an RV site 

on his wetland, and so far he has no decisions made. So there is 

an endless bureaucratic morass that exists even now. 

The American public probably does not understand that this is 

what is to be regulated, virtually, except for a couple days, a couple 

weeks of the year, dry land. 

One more point that I will quickly make is that we are getting 

assurance that there are clauses that are going to protect the exVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00148 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
127 

emptions in ag as well as silviculture. In Minnesota, I just want 

you to know that now an NRCS permit must be also accompanied 

by a WCA permit. That is Minnesota’s Wetlands Conservation Act. 

You have situations where the NRCS permit is approved, but the 

WCA permit is denied. So the State law is overriding some of those 

exemptions. 

Finally, Mr. Chairman, I would urge you to develop a bipartisan 

solution. I know in Minnesota when parties, differing parties, reach 

log jams, good folks like Senator Doug Johnson would say: Get together. Don’t come to us until you have a bill you all agree on because we are not going to waste our time on these kinds of very 

partisan differences. Work them out yourselves. 

So I would urge you to get the parties together, come up with 

some resolutions similar to what we have talked about today, and 

please don’t forget that I think now, 35 years after the Clean Water 

Act, people have become such advocates and fans of wetlands, of 

clean water, of local initiatives, of putting in vegetation on their 

shorelines to prevent fertilizers and so on from entering land. 

These are community projects now. The voluntary efforts talked 

about here are everywhere. 

I don’t think we really need the command and control system 

that this bill continues to use and probably should not, given the 

much smaller areas now that would come under this scope, smaller 

areas of impact and land and water bodies. 

Thank you very much, Mr. Chairman. 

Mr. OBERSTAR. Thank you for your contribution, for your comments. I can just about picture where that photo was taken. 

Ms. RUNBECK. I am certain you can. 

Mr. OBERSTAR. Mr. Boozman had a pressing commitment to 

make, and he has been very patient. I want to recognize the gentleman. 

Mr. BOOZMAN. Well, thank you very much, Mr. Chairman. I have 

about 25 people that journeyed from Arkansas to see the pope. 

Mr. OBERSTAR. There are going to get you instead. 

Mr. BOOZMAN. Yes. I told them that I would meet them at 6:30, 

and they are about worn out. So, anyway, I have another event I 

have to run too, but I want to thank all of you for your testimony. 

I also want to thank you, Mr. Chairman and Mr. Mica. The hearing today has been very, very good. We have had a broad, very diverse group of people testifying from all walks that represent this 

and truly from just all kinds of viewpoints which is very, very valuable. So I really do appreciate it. It has been very, very helpful to 

me. 

I really appreciate you, especially. I am leaving now. I appreciate 

your hanging in and being so patient, but it really is important 

that you are up here. So, thank you very much for making the trip. 

Mr. OBERSTAR. Thank you, Mr. Boozman, for your participation 

throughout the day and for your diligent attention to the specifics 

and the testimony of all the witnesses. 

Mr. Salazar. 

Mr. SALAZAR. Mr. Chairman, I have to reiterate what Mr. 

Boozman said. I am amazed at your stability and strength. I think 

you are the only Member of Congress that can run 12 or 14-hour 

128 

Committee hearings, but we applaud you for that, sir. It must be 

your biking. 

Let me just tell you, Ms. Runbeck, I just notice a comment that 

you made about making this a bipartisan bill. I can assure that 

water is not a partisan issue. 

Mr. Recker, Mr. Shaffer, Mr. Quinn, I sympathize with exactly 

where you are coming from. I am a farmer, and I also have the 

same concerns, but I also have to applaud the Chairman who has 

actually given us this opportunity to be able to discuss something. 

I would urge all of us, instead of just saying no, to just say how 

can we work together to make this better for all Americans? 

This issue is an issue of jurisdiction, I believe. It is an issue of 

the expansion of the current law. Some believe it is not; some believe it is. And so, what I would urge you to do is to submit your 

comments as to how we can make this an issue that we can all digest. 

I share, Mr. Shaffer, the same issue as you do. I farm 3,000 acres 

back in Colorado. I have never had to request a 404 permit or anything like that to irrigate my meadows. 

But, please, this is what I ask. Let’s work in a cooperative manner. This isn’t a partisan issue. Everyone drinks water, Democrats 

and Republicans alike, and we all want clean water. 

I think I agree with you, farmers are the best stewards of the 

land in my opinion, but let’s try to figure out how we can work in 

a bipartisan way. 

So, thank you, Mr. Chairman, and I applaud you once again. 

Thank you so much for allowing us to have this hearing. I know 

that in December you had some concerns about it, and you were 

gracious enough to open this up to not only the proponents but the 

opponents of the current legislation. 

Thank you so much. 

Mr. OBERSTAR. I appreciate that very, very much. I would say we 

would have had the hearing sooner, earlier in the year, had I not 

had to have a hip replacement. 

I think the program has the same kind of congestion in it that 

my hip, my former hip had, a lot of old growth of arthritis. It has 

been removed and a new part, a 40-year part installed. I have done 

92 miles on my bicycle since then, and I am going to keep on going. 

I am refreshed and renewed and ready for the rest of this and 

the coming session. 

Mr. SALAZAR. A 24-hour hearing? 

Mr. OBERSTAR. No, no, no, not 24-hour hearings. No. The latest 

on record was the hearing I held several years ago on smoking 

aboard aircraft. We started at 11:30 and went until midnight. The 

longest total hours was our Deepwater hearing last year where we 

found the misdeeds of the Coast Guard and corrected those. 

Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chair. 

I have a couple of questions, and I am not sure whether I should 

defer them because I agree with my colleague, Mr. Salazar. I 

wasn’t here for the early part of your session, but I have been at 

your sessions where they go for a few hours, and I can tell you that 

it brings out a lot of information that I need to be able to continue 

working with my colleagues and, of course, with my district. 

129 

I know that he has held numerous workshops with us, asking us 

to go back to our districts and get input and bring it back so that 

it can be a better bill. So I applaud him because very few Chairs 

that I know actually continue to seek information and to get that 

input so that becomes a bill that is palatable, that is workable and 

that is beneficial to all. 

Mr. Chair, I thank you for that. 

Now for the question: Mr. Recker, in your testimony, you refer 

to Congress’ clear intent in its use of the term, navigable, in statute. In your opinion, what is your interpretation of what Congress’ 

intent is in using the phrase, waters of the United States? 

I had a problem with that too in the beginning? In the statute, 

Section 502.7 is specifically there defining the phrase, navigable 

waters to be waters of the United States. 

Mr. RECKER. I look at it as making a determination between navigable and all waters of the United States. That is how I interpret 

it. 

Waters of the United States is waters of the United States. Navigable waters are specific, and I interpret the other as all waters. 

Mrs. NAPOLITANO. Okay, because in going back with some of my 

water people—as I call my sanitation districts, the water basins— 

especially sanitation had an issue with and some of the cities with 

the possible interpretation and possible litigation necessary to be 

able to defend some of what might be construed as a violation of 

those waters in terms of pollution, if you will. 

Mr. Shaffer, while Pennsylvania may have the ability to protect 

its own waters, does it have the ability to promote water quality 

protections in the other States such as Ohio, New York, Delaware, 

New Jersey, West Virginia or Maryland? 

In addition, Ohio and West Virginia are no more stringent 

States. If they have lower water quality standards than Pennsylvania and some of the waters come into your State, what implications for Pennsylvania water quality would you face and what 

could Pennsylvania do about it? 

Mr. SHAFFER. Well, we have a pretty good working relationship. 

For instance, we have what is known as the Susquehanna River 

Basin Commission which includes New York and goes right on 

down to the Chesapeake Bay. So that is a commission that constantly works with all the partners, all the States, in trying to 

work together and to develop water quality issues. That would be 

one example I would give you. 

Then in the western part of our State, the Allegheny River 

Basin, there is also a commission down there where it has to do 

because in Pittsburgh, the three rivers all come together. So it 

is—— 

Mrs. NAPOLITANO. A working relationship? 

Mr. SHAFFER. A working relationship, yes. 

Mrs. NAPOLITANO. So there is no issue there for being able to 

have some kind of implication? 

Mr. SHAFFER. We, I say farmers and agriculture, have a voice on 

the Susquehanna River Basin Commission. They reach out to us, 

so we can discuss our issues simply like I came here tonight to explain from my point of view as a farmer how this would affect different things. 

130 

Therefore, in the Susquehanna River Basin Commission, for example, we are able to have our input, so we can work out for the 

best quality solution for everybody. 

Mrs. NAPOLITANO. Thank you, sir, and thank you all for your patience. 

Thank you, Mr. Chair. 

Mr. OBERSTAR. Thank you, Mrs. Napolitano. 

Mr. Carney. 

Mr. CARNEY. Thank you, Mr. Chairman. Once again, I stand in 

awe of your ability to last through these things. I remember the 

FAA hearing we had a couple weeks ago, pretty remarkable. I truly 

believe you will probably have to get your 40-year hip replaced 

again. 

My questions are for Mr. Recker and Mr. Shaffer primarily. 

First of all, Mr. Recker, how far are you from Backbone State 

Park? 

Mr. RECKER. I went to Starmont School. I graduated from 

Starmont. So it is part of the school district, and I know it well. 

Mr. CARNEY. I graduated from North Lynn. I played football at 

Starmont a lot. 

Mr. RECKER. Great, and I played against you. 

Mr. CARNEY. Yes, I know. So, here it goes, buddy. 

[Laughter.] 

Mr. CARNEY. This is for both Mr. Shaffer and Mr. Recker. What 

kind of relationships do you have with your State’s environmental 

regulatory agencies? Are they good ones, bad ones? 

Mr. Recker, first. 

Mr. RECKER. Yes. I work with four watersheds that have kind of 

a new concept, and it is taking ownership of that watershed and 

empowering the farmer because we think that the landowner or 

stakeholder knows exactly what should be done with the help of 

county commissioners, with DNR and with Federal help with technical assistance. So we bring them, all the stakeholders, together. 

The amazing thing is when we draw the line around the map 

and we tell that farmer, you are part of that watershed, the 

Maquoketa Watershed, farmers that have been farming for 50 

years didn’t realize what the name of their watershed is. Once they 

know they are part of a group and they actually can do something 

collectively, it is amazing what takes place. 

The first question they want to ask is, what is the impairment 

and how do we fix it? That is their attitude. 

So, yes, in Iowa, we work very closely, and we encourage working 

together with every agency. 

Mr. CARNEY. Mr. Shaffer? 

Mr. SHAFFER. In my testimony, I indicated some of the things 

that we do, but here are some other things. 

We started a program with our Department of Environmental 

Protection. It is a coordinator program where if someone is reported to the department, a farmer is reported to the Department 

of Environmental Protection by someone, rather than the DEP person being the first line out to the farmer to tell them they have to 

straighten out, we have a farmer within that area that will go to 

his neighbor and say, hey, listen, you know you have a problem 

here. You really ought to correct this and get it straightened out. 

131 

Now, if they refuse to do it, then it is out of our hands. But a 

lot of times we find that approach, hearing from another farmer, 

is less intrusive than if you hear somebody from enforcement, and 

it has really been a success. I mean we got a lot more accomplished 

and cleaned up the environment a lot better than if we have to go 

through the regulatory agency every time. 

Also, we developed an ag advisory board to our Department of 

Environmental Protection that meets once a month, and it is a 

group of farmers. By statute, they have to have the opportunity to 

comment on any one of the department’s regulations that has to do 

with agriculture. 

Now the department doesn’t have to listen to them, naturally, by 

comment, but at least it provides the Department of Environmental 

Protection all the information possible because I truly believe the 

more information you have, the better the decisionmaking process 

will be. 

So I think and as I said with Kathleen McGinty, our Secretary 

of DEP, we co-authored an editorial letter together, stating how 

much progress agriculture has made in the cleaning up and our 

contribution towards cleaning up of the Chesapeake Bay. 

Mr. CARNEY. That is good. 

As you know, the Susquehanna River runs through almost all of 

the counties in my district in Pennsylvania. So I consider it kind 

of our river actually, and your efforts are very much appreciated. 

I am very proud of what Pennsylvania has been able to do for its 

part for cleaning up the waterways. 

Can you talk about the farmers’ willingness to manage the nutrient management program in Pennsylvania and what farmers are 

specifically doing to implement the plan voluntarily? Can you talk 

about that a little bit? 

Mr. SHAFFER. We started that. I am proud to say we are ahead 

of the curve. We started that several years ago, introducing a nutrient management plan. 

As a matter of fact, after 10 years, we went over it again because 

technology and science had showed that phosphorus could be a 

problem as well. So we included phosphorus. 

What the nutrient management plan has done is provided for the 

amount of animals you have, there is a number given to that. You 

need X amount of acreage, for instance, to apply the nutrients from 

those animals. Therefore, you have to show that you are only applying the amount of nutrients that a crop can be taking up. So 

that has been a very successful plan. 

We have implemented that years ago because, listen, understand 

one thing. What people miss is the land, the water are our tools. 

We need the land and the water. We need good land, good water 

to keep farming and stay in business. Our farmers realize that. 

Therefore this being proactive and voluntary with these nutrient 

management plans, it has really been a success story, I am proud 

to say. 

Another thing in agriculture, one thing about farmers, they are 

very proud of accomplishments. They feel they have to accomplish 

something. What I have a concern of something like this is if you 

keep moving the target on them, they get very frustrated. 

132 

In other words, they have a plan. They see what they are trying 

to attain. If you keep having a moving target, it really frustrates 

them and their willingness to accomplish what they need to do. 

Mr. CARNEY. I thank you for your testimony. 

Mr. Chairman, I will have another round of questions. 

Mr. OBERSTAR. Thank you. 

Ms. Runbeck, you mentioned a poll or several polls you discussed. I don’t want to have dueling polls, but the Associated Press, 

this recent March, mid-March, conducted a poll on citizens’ concerns on environmental issues. Pollution of drinking water was 

named the number one issue by well over 53 percent and others 

go down the list. 

I don’t want to legislate by poll, but I do want to say that citizen 

concerns about clean water are very high on the list of the anxieties that people feel about the world in which we live. 

You also suggested that if my bill were enacted, there would be 

a bureaucratic morass. We have one right now in the aftermath of 

Rapanos and SWANCC. There are 30,000 permit applications 

pending with the Corps of Engineers. There is an average threemonth waiting period for each permit, which is substantially up 

compared to what it was prior to Rapanos and SWANCC. 

We need to reduce the backlog that exists, and I propose that the 

current state of uncertainty about the law is creating this bureaucratic backlog and complexity for the Corps of Engineers. We don’t 

have enough people to process the existing permit applications 

which they were able to process rather readily prior to SWANCC 

and Rapanos and approved 99 percent of permit applications submitted. 

But let me come to, I think, your concern—although you weren’t 

this specific about it—that deleting the term, navigable, from the 

places where it appears in the current Clean Water Act would expand its definition. 

Suppose I just leave in place, navigable water, where it appears 

but attach to it the specific application by regulatory proceedings 

of the Corps and of EPA, as I have expressed earlier in the day. 

Does that allay your concerns? 

Push the button on your microphone, please. I want to hear 

every word. 

Ms. RUNBECK. Actually, I think the big fear is not so much necessarily the definitions of water because I think States have inched 

toward those definitions. It really is the activities affecting those 

waters. 

Mr. OBERSTAR. You mean the word, activities, as it appears in 

the introduced bill? 

Ms. RUNBECK. Right, right. 

Mr. OBERSTAR. Is that the specific term? 

Ms. RUNBECK. That is an entirely new, never before regulated 

area of concern. 

There is an infinite number of questions about who is going to 

decide and what is the nature of this activity and how it affects the 

water. Does it happen over time? Does it happen under what conditions and who is going to do the regulation? There are just many, 

many questions, and I would suspect it would. 

133 

When I spoke to one Corps of Engineers official because I said, 

well, how much more time and how much bigger workload will that 

require of you agency? 

He said, I don’t know. Ask the EPA. It won’t require any new 

work from us, but ask the EPA. 

So it is a matter that is quite undefined. 

Mr. OBERSTAR. I asked that very question earlier in the day of 

EPA and of the Corps of Engineers and asked them specifically to 

address the current regulations, and I specified which ones, that 

would be covered by the term, activities. They allowed as how they 

could be very clear about what is meant by activities because they 

have been regulating them for the past 30 years. 

So we will get the Corps and the EPA definition and be glad to 

share that with you and get your comment on it. 

Ms. RUNBECK. That would be fine. 

I think just to sort of fill in a gap here, I am watching the wetlands rulemaking in Minnesota, and they are looking at the same 

issue. You know there is much discussion about this term, direct 

and indirect impact. So it just a little different way of phrasing it, 

but it is a wide open door, it does appear, to litigation, to uncertainty. 

I mean how is anyone to know, short of having these specifically 

defined? I wouldn’t imagine you would really want to because that 

is too limiting too. It is a difficult area. 

Mr. OBERSTAR. I think the thrust of testimony throughout the 

day has been: Give us more clarity in the application of the law. 

Give us more specificity. 

I am moving in that direction through the hearing process. We 

are getting much more specific issues raised. 

Mr. Recker, let me ask you, in what ways have your farming activities been affected post-SWANCC and Rapanos compared to regulation, pre-SWANCC and Rapanos? 

Mr. RECKER. I can probably safely say that there haven’t been 

changes to it that I can speak of right now. 

Actually, I can tell you, though, for the last 20 years since I have 

been farming, 22 years, that we have continually increased the 

amount of conservation that we use on our farm. That has been 

voluntarily led, with government programs but voluntary on my 

part, to say we want to do the right thing because we want to have 

clean waters. 

In northeast Iowa, we have some of the best trout ponds, well, 

trout streams anywhere. So we are very conscious about what happens to our waters. 

I can say I have seen no regulation, and I would not want to see. 

Mr. OBERSTAR. Do you have any pending permits that you have 

had to submit for the Corps of Engineer? 

Mr. RECKER. No. 

Mr. OBERSTAR. Or the EPA? 

Mr. RECKER. No. 

Mr. OBERSTAR. Mr. Shaffer, have you had any? 

Mr. SHAFFER. No. No, sir. I don’t have any. 

Mr. OBERSTAR. So the application of the Clean Water Act has 

been true to its stated language to exempt normal agricultural activities. 

134 

Mr. SHAFFER. Up to this point. 

Mr. OBERSTAR. You have not been subject to any permitting. 

Mr. SHAFFER. Right, right. 

One concern I would have, just to elaborate on what Mr. Recker 

said, is the EQIP program has been a very successful program 

where cost shares have gone to farmers for conservation practices. 

Our farmers in Pennsylvania utilize that program wherever possible to help improve the environment. 

Now, if we have to go to the Army Corps or EPA to get a permit 

to put some of these practices out there, I think it is going to have 

more of a deterrent for farmers. 

Mr. OBERSTAR. But that is my point, if you haven’t been subjected to a permit up to now. 

Mr. SHAFFER. No, not up to now. No. 

Mr. OBERSTAR. Then the language that continues this exemption 

remains in place and continues your exemption. Yes? 

Mr. SHAFFER. From what I have read and I am told, now understand, I am just a farmer. I am not a legislator or a lawyer, but 

it is my understanding that wherever there is a gray area—and I 

think I have heard enough today that there is a gray area—usually 

it turns around to bite me. 

With all due respect, that is what I am concerned about, that is 

not very, really explicit enough, that it will be left up to somebody 

else’s interpretation, and that is my greatest fear of that. 

Mr. OBERSTAR. All right, you tell me whether this is gray. Nothing in this Act, including any amendment made by this Act, shall 

be construed as affecting the authority of the Secretary of the 

Army Corps or the Administrator of the Environmental Protection 

Agency under the following provisions of the Federal Water Pollution Control Act, the Clean Water Act of 1972. 

Nothing in this Act shall be construed as affecting the authority—that is not gray. That is very clear, isn’t it? 

Shall be construed, not shall be attributed. You can’t imagine 

something. Nothing shall be construed. That is very, very clear, 

specific, binding legislative language. I have been writing legislation for 34 years, and I know that it is. 

Relating to the discharges of stormwater from oil, gas and mining, Mr. Quinn, operations and related to discharges of dredged or 

fill materials from normal farming, silviculture—that is timber harvesting—and ranching activities. Pretty clear and specific, isn’t it? 

Nothing shall be construed as affecting the authority under the 

provisions of the Act. 

That has been in place since 1972, and you have not had to file 

for a permit. Mr. Recker hasn’t had to file for a permit. We say in 

this language, you won’t have to do it in the future either. 

So it can’t be a gray area. It can’t be misconstrued. It is very specific. 

What is gray is now there is a Kennedy test. There is a Scalia 

test. There is a question mark test. And, there is a great deal of 

uncertainty, although they, the judges, have stayed away from 

farming and ranching activities. They didn’t mess with that in the 

basic law. 

But I want to ask you about the prior converted farmland. Although the Clean Water Act does not refer to prior converted farmVerDate Aug 31 2005 10:29 Sep 24, 2008 Jkt 000000 PO 00000 Frm 00156 Fmt 6633 Sfmt 6633 P:\DOCS\41961.TXT JASON
135 

land, the practice has been to treat land that is farmed under those 

provisions that I cited, that are in the 1972 Act as exempt from 

permitting, from regulation. 

Once farming stops, once the farmer ceases to farm the land, 

sells it for a subdivision, for housing, for a shopping center, it then 

becomes subject to the permitting provisions of the Clean Water 

Act. Do you have a problem with that? 

Mr. SHAFFER. Yes, sir, I do. 

Mr. OBERSTAR. It is not going to be used for farming now. 

Mr. SHAFFER. I understand. But understand, in the first place, 

I think in 1993, President Clinton promulgated an exemption for 

prior converted cropland regardless of the use. 

Now, understand that a lot of farmers are land rich and cash 

poor. Their whole assets are tied up in their land. If they are not 

able to pass that along to their children or whatever, that is their 

retirement. To devalue the land that way would have a great hardship on a lot of our farmers that might depend on that for their 

retirement. 

Mr. OBERSTAR. I have discussed with Soil Conservation Service 

representatives in the State of Minnesota in my district and elsewhere around the State. That is the way the law has been interpreted in Minnesota, and the SCS people tell me that sales of farmland have not been diminished because that land no longer has the 

protection of farmland. The value of land does not diminished because of that. 

Mr. SHAFFER. Well, I can assure you in Pennsylvania, if the land 

returns and gets a wetland designation, it reduces its value considerably. 

Mr. OBERSTAR. Do you think then a shopping center should be 

exempted from the provisions of the Clean Water Act as farming 

activities are? 

Mr. SHAFFER. No. What I said was— 

Mr. OBERSTAR. If that farmland is sold for a shopping center, do 

you think the exemptions should continue? Is that what you are 

advocating? 

Mr. SHAFFER. No. 

I think a point should be made. The State, as I said in my testimony, we have, every year, increased net gains in wetlands. Our 

biggest destroyer of wetlands in the State of Pennsylvania is the 

Department of Transportation. They are the biggest ones. 

We have implemented different activities where we can buy into 

a pool. So, if you are destroying a small acre of a wetland, maybe 

you can buy into a pool that would create five acres of wetland to 

offset it, for example. 

Mr. OBERSTAR. That is separate from the question that I am asking. 

Mr. Recker, do you have a comment on that? 

Mr. RECKER. You were talking about a shopping mall. Should 

you build on a wetland? 

Mr. SHAFFER. That is where I am confused. 

Mr. OBERSTAR. No. I am saying if farmland, prior converted 

farmland, it has been operated as a farm and no longer is going 

to be operated as a farm. It is going to be sold to a developer who 

136 

is going to put a shopping center in there or a housing development 

in it. 

That is happening all through the south part of my congressional 

district. Farmland is being sold. Soybean fields are no longer pushing beans. They are pushing up houses. 

Should that exemption continue? 

Mr. RECKER. Just an example that I would give is I actually had 

a project that was a wetland, that was farm ground. They decided 

to make it into a baseball diamond. Permitting went very quickly, 

and we were able to utilize it for a baseball diamond. 

Mr. OBERSTAR. So then you find no problem? 

Mr. RECKER. Well, I am not sure if I find any problem. If I had 

that ground as farm ground, I would not be able to use that for 

land use of that. I couldn’t. I couldn’t put farming practices on that 

wetland and actually be able to farm that, but we were able to put 

a baseball diamond actually in that particular property. 

Mr. OBERSTAR. Whether you converted to a farm is a different 

issue from the one I am posing of whether farmland, which is exempted from the provisions of the Clean Water Act, converted to 

other activity should lose its exemption. 

Mr. RECKER. No. 

Mr. OBERSTAR. You don’t have? 

Mr. RECKER. Well, I don’t, but prior converted in my mind was 

ground that was once deemed as wet or hydric in soils. 

Mr. OBERSTAR. And converted to agricultural purpose. 

Mr. RECKER. Actually because of drainage. 

Mr. OBERSTAR. Yes. 

Mr. RECKER. Under subsurface drainage, we were able to improve it. 

Mr. OBERSTAR. Right. 

Mr. RECKER. So, once that has been improved and it should not 

have to revert back to a wetland, no matter what the use is. It has 

been improved. It is no longer a wetland. 

Mr. OBERSTAR. But the exemption is for farming activity. The exemption in the law is for farming activity. That is the current law. 

That has been since and, in fact, before 1972. 

If it loses the character of farmland, should it also lose the exemption? You might want to think about that. 

Mr. SHAFFER. Would I be allowed to give testimony regarding 

that? 

Mr. OBERSTAR. Pardon me? 

Mr. SHAFFER. Would you mind if I submitted further written testimony regarding that? 

Mr. OBERSTAR. I said, think about it. Think about it and get back 

to us. 

Mr. SHAFFER. I would appreciate that. 

Ms. RUNBECK. Mr. Chairman? 

Mr. OBERSTAR. Yes, Ms. Runbeck. 

Ms. RUNBECK. If I could, just a comment on prior converted wetland and the experiences where I am noting in Minnesota, those 

exemptions seem to be sliding away. The new AD-1026 form which 

the farmer signs to get their ag subsidies has been changed, and 

now you sign. When you do sign it, you are authorizing a wetlands 

redetermination. 

137 

Some of these redeterminations now are returning land. They are 

now acres and acres of wetlands. So it does seem to be. 

Mr. OBERSTAR. Aren’t those, as I understand it, lands that are 

under State law, not covered by the Federal law? 

Ms. RUNBECK. No. These are farmed wetlands. I mean farmed 

croplands that have been farmed for decades. 

Mr. OBERSTAR. You mean EPA departments are changing the 

permitting? 

Ms. RUNBECK. Yes. 

Mr. OBERSTAR. I would like you to submit some specific evidence 

of that. That would be very useful for our purpose. 

Ms. RUNBECK. Okay, I will do that. 

Mr. OBERSTAR. Now, turn a corner and say if we retain the language in current law, rather than delete it as my introduced bill 

would propose, to go back to the pre-Rapanos and SWANCC. If we 

retain the term navigable waters, but attach to it, to be very clear 

about what is to be covered and protected, the regulatory activities 

of the Corps and of EPA specified in the law, specifically referenced 

in the law, to make it clear that the term, navigable waters, applies in the way, pre-Rapanos and SWANCC, that the Corps and 

EPA applied them, would that be acceptable to you? 

Mr. SHAFFER. To be perfectly honest with you, as I said, I am not 

a legislator or a lawyer and, if you allow me to, I would like to respond to that in writing after seeking some counsel on it. 

Mr. OBERSTAR. That would be welcome. 

Mr. SHAFFER. I am the first to admit it. 

Mr. OBERSTAR. I invited the Farm Bureau to do that way back 

last year and still haven’t received an answer from them. So, if you 

can get one, that would be good. 

Mr. SHAFFER. I would. 

Mr. OBERSTAR. Or give me your own. Give me your own as a 

farmer. 

Mr. SHAFFER. I would be glad to. 

Mr. RECKER. I would just like to be able to see how they cleared 

up the word navigable, what language they used to clear that up. 

Mr. OBERSTAR. All the practice that was in place prior to 

SWANCC and Rapanos, people were complaining about that. It is 

just that the Court decision has changed the landscape with respect to the application of the Act. I am trying to get it back to 

where it was prior to this confusion of who is following Scalia, who 

is following Kennedy, who is following the justices in between. 

Mr. Gerber, thank you very much for your testimony, your comments. Give me your thoughts about retaining the term, navigable, 

but bringing with it the burden of previous practice. 

Mr. GERBER. Thank you. With your deference, I would like to 

also ask for some time to really look at that, particularly after seeing the specific language because I think it does really matter. 

Mr. OBERSTAR. Sure. 

Mr. GERBER. One of the things that we would have to look at is 

how that change in language meets the original intent of the Clean 

Water Act as well as meeting the intent of this bill to actually return us to that time and also taking into account the focus of the 

Supreme Court on those particular words and really look at just 

what do we run a risk of still going backwards. 

138 

Mr. OBERSTAR. Thank you. 

I thank all the witnesses at this table and those previous in the 

day. 

We are getting now down to specifics, away from hyperbole, away 

from alarmism, away from even from hysteria that has been stirred 

from time to time and place to place. This is a complicated issue. 

I think every panel today has said, we want to sustain clean 

water. The question is how? 

I come back to a point I made time and again. All the water 

there ever was or ever will be on planet Earth is with us today. 

We are sending expeditions to Jupiter, to Venus, to Mars to look 

for water. We have it right here. We have to protect it. 

Every day, 40 trillion gallons of moisture passes over the continental United States. About half of that falls from the atmosphere 

and is absorbed before it reaches the ground. 

The amount that reaches the ground or 625 billion gallons are 

available. Half of that is absorbed or runs off. The rest is what we 

can use, about 320 billion gallons a day. 

It is enough to sustain life if we protect it, and we are the only 

ones who can. Nature can’t do it without our help. So our charge, 

your charge is to help us protect this precious resource and pass 

it on to the next generation in better shape than we found it. 

Mr. Carney, did you have another question you wanted to ask? 

Mr. CARNEY. Unfortunately, I wanted to get involved in the language issues, but you guys already did that. I appreciate that. 

But I do want to make a quick observation, Mr. Chairman, that 

having this kind of dialogue is absolutely essential to getting a 

clean water bill that has the common sense practices in it that enable us, one, to sustain the water resources of this planet and this 

Country but also to enable those at the witness table to do what 

they do. I agree with Mr. Shaffer and Mr. Recker that the land and 

the water are the tools and to enable those craftsmen to use those 

tools properly is the right thing to do. 

I come to the conclusion tonight actually that we are sort of in 

violent agreement about a lot of this stuff and that common sense 

is being injected by both sides and that a solution is very near at 

end. 

I thank you for the opportunity and for holding this testimony, 

sir, and everybody at the table. I think it is good news from here. 

Thank you very much. 

Mr. OBERSTAR. Thank you, Mr. Carney. 

I would be remiss, Mr. Recker, if I didn’t thank you for your acknowledgment of our work on the Water Resources Development 

Act. That was six years worth of worth that we got through in the 

first session of this Congress, and then we had to override a presidential veto to get it passed. 

In the history of the Congress, there have been 1,493 vetoes of 

acts of Congress by all the Presidents in history. Only 106 were 

overridden until last fall. That was the 107th. 

Mr. RECKER. Well, we thank you for your hard work on the Committee. 

Mr. OBERSTAR. An earlier override was on the Clean Water Act 

by a vote of 10 to 1. 

It is important. I am just going to say this one thing. 

139 

Round trip barge traffic from Clinton, Iowa, to the world’s most 

important agricultural export facility, New Orleans, is 820 hours 

because the barge tows are 1,200 feet in length and except for 

Alton, Illinois, the locks are 600 feet. 

So each barge tow has to be broken in half. Send 600 feet 

through. The next 600 feet through. Latch them together. Take all 

that time and go down the next one and do it all over again. 

Grain, as you know, moves in international markets on as little 

as an eighth of a cent a bushel. If you are adding that transportation cost to the hard work you have put into your beans and corn 

and other agriculture commodities that you are exporting, think of 

Brazil. 

Just look at a map of Brazil. That point that sticks out in the 

south Atlantic Ocean, that is Recife. That is the port of Recife Just 

below, there is the port of Santos. The port of Santos is the point 

of export for soybeans which Brazil is developing in fast amounts 

to the same markets that we are selling, in West and East Africa 

and the Pacific Rim, and they have a 2,500-mile advantage over us. 

That is a six-day sailing advantage. 

It is a huge transportation cost advantage over us, and we have 

not modernized the locks on the Mississippi, Ohio and Illinois Rivers since the 1930s except for Alton, Illinois. That is shameful. 

I said when I took the Chairmanship of the Committee, we are 

going to do the unfinished business of the Congress, and we got it 

done. I appreciate the participation of my colleague, Mr. Mica, and 

all the Members on the Republican side. There was an overwhelming support for that legislation because we know it means 

productivity, mobility, competitiveness for America. 

Thank you for listening to the sermon and thank you for your 

participation today. 

The Committee is adjourned. 

[Whereupon, at 9:59 p.m., the Committee was adjourned.] 

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Æ 


41961.352